Amnesty Hearings

CHAIRPERSON: Right, we're now proceeding this morning with the application of Mr Ngema, is that correct?

MR MAPOMA: That is correct, Chairperson.

JUDGE DE JAGER: Could you kindly assist us whether you could come to an agreement about the date of the second assault, whether it was on the 30th or whether it was on the 1st July because then there would be an intervening day?

MS REDDY: Mr Chairperson, according to what I read in the correspondence and after taking instructions from my client it appears to be clear that the second incident occurred on the 1st July 1993.

MR PANDAY: Thank you Mr Chairperson, I've also taken instructions from my client with regards to the date. He says he recalls the first incident taking place also on the 29th, he may be mistaken as to the date of the second incident and he won't dispute it if it's on the 1st July.

JUDGE DE JAGER: You see I think - I want to put it to you and you could discuss it with your client, he was called out of bed, he was still sleeping on the morning and he proceeded, so when did he hear that the others died in the meantime? And he has testified later that he has been aware of the deaths before the second incident so it seems as though there was still a day between the two incidents?

CHAIRPERSON: Well also is it possible to ascertain from the hospital, the police, the post-mortem reports and what have you as to when the deceased died because it's seems to be probable that the news would have gone round the district very quickly. If they died on the afternoon of the 30th it seems likely that they wouldn't hear till that night or the next morning if they died on the 29th the same day then one might have expected them to have known?

MR MAPOMA: And if we look on page 2 of the bundle for the date of the event it says July 1993.

JUDGE DE JAGER: The father of the deceased was quite adamant that it was 1st July.

MR PANDAY: Thank you Mr Chairperson. Mr Chairperson, my client advises me with regards the dates in question, he says he got to know about the dates of the first two persons on the next day. He's not too sure whether that was either in the morning or in the afternoon and after having that information they then proceeded the next day to apprehend the ...(indistinct) and it was so in respect of the date he won't dispute that it may very well be on the 1st July.

CHAIRPERSON: That would make it the 1st, there was the first killing or the first assaults, the people landed up in hospital, the next day he heard and the day after that was ...(intervention)

MR PANDAY: But he can't confirm as to whether he heard about it in the morning which was the latter part of the day.

JUDGE DE JAGER: Are there any other witnesses?

CHAIRPERSON: Sorry, before we - is there some further information that has become available? We'd like a short adjournment for a few minutes so you can inform the Evidence Leader about it. Do you want a short adjournment?

MR MAPOMA: Yes Chairperson, just five minutes.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Right, what is the position?

MR MAPOMA: Thank you Chairperson for the indulgence. Chairperson, yesterday I indicated that I may call one of the implicated persons in the matter after they had indicated to me that they are willing to testify on the account of events during the event in question. Unfortunately they are not here at this moment but I indicated to them perfectly well that it's important if they are still willing to testify they should be here at 9 o'clock because we are starting at 9 o'clock. We have gone past now thirty minutes from that time and in the circumstances I don't intend calling them.

CHAIRPERSON: Was there evidence of sufficient importance to warrant an application to the Committee for us to call them, not to request them to volunteer but to subpoena them to give evidence. Was the evidence of such a nature?

MR MAPOMA: There was no evidence of such a nature Chairperson. In fact it's only that they themselves have volunteered to me that they would want to testify if need be and they were considering the matter and otherwise ...(intervention)

CHAIRPERSON: What I was asking is did they tell you what they were going to say? Was what they were going to testify about of sufficient importance to warrant subpoenaing them?

MR MAPOMA: Yes, what they told me what to say, what they intended saying, but it is my view Chairperson that it does not warrant that they be subpoenaed for that purpose. All that they said is that they wanted to confirm the version of the application concerning those events, that they were there, some of them and to confirm the version of the applicant of and concerning the victims in this matter and that is all.

JUDGE DE JAGER: Wouldn't that be of importance where his version is disputed by the other witnesses?

MR MAPOMA: Well to a certain extent it would but I was just weighing the extent to which it is important.

MR PANDAY: I think he just walked in, the witness concerned. I think it's Stanley.

MR MAPOMA: Yes, in the light of that Chairperson then I would request that we stand down again, unfortunately.

JUDGE DE JAGER: Well call him, he's there. If it's the witness let him go to the witness stand and let's hear what he's got to say?

MR MAPOMA: No, I propose just a short adjournment because I didn't consult thoroughly with him.

JUDGE DE JAGER: Well I don't know whether you need to consult thoroughly with him in order - if he's got something to say, he's been here, he's listened to the evidence and he could sit down and we could ask him what he knows about this.

MR MAPOMA: No, the situation Chair is that I was speaking to these persons in groups. I don't even know their names now, they just highlighted to me what they want to say.

CHAIRPERSON: Well let's call that gentleman that's just come in. Could you stand up please? Do you understand - can you hear me.

MR MAKATINI: Yes.

CHAIRPERSON: And do you understand English?

MR MAKATINI: Yes.

CHAIRPERSON: I understand that you may be able to give evidence about what happened, do you wish to do so?

MR MAKATINI: ...(inaudible)

CHAIRPERSON: Well I think we should just call him because you are not here to make a case, you are here to put the available information before the Committee. I can understand the applicant's attorney wanting to consult with somebody before he calls him because he is here to represent someone.

MR PANDAY: Mr Chairperson, I have spoken to the witness briefly yesterday and I don't foresee a problem. You may continue with him.

CHAIRPERSON: Right.

STANLEY MAKATINI: (sworn states)

EXAMINATION BY MR MAPOMA: Where do reside Mr Makatini?

MR MAKATINI: In Umkababa.

MR MAPOMA: Were you resident there during the dates surrounding the events that we are dealing here with in this hearing?

MR MAKATINI: Would you please repeat your question?

MR MAPOMA: During June/July ...(intervention)

CHAIRPERSON: Sorry, let's do it a different way. Have you been sitting here during the hearing of evidence yesterday?

MR MAKATINI: Yes I was.

CHAIRPERSON: And did you hear the applicant, Mr Ngema, giving evidence about certain events that took place?

MR MAKATINI: Yes I did.

CHAIRPERSON: Were you residing at Umkababa at the time?

MR MAKATINI: Yes I was.

CHAIRPERSON: Carry on.

MR MAPOMA: Were you a member of any political organisation?

MR MAKATINI: Yes I was and I still am of ANC.

MR MAPOMA: Were you a member of the leadership of the ANC during that period?

MR MAKATINI: Yes I was and I am still.

CHAIRPERSON: You were? I didn't hear what he said he was?

MR MAPOMA: He said he was a member of the leadership of the ANC and I was just about to ask what portfolio.

What portfolio if any did you hold for the ANC at Umkababa during that period?

MR MAKATINI: At that time I was a member of the Executive Branch of ANC, even today I am still.

MR MAPOMA: Was the applicant a member of the branch executive?

MR MAKATINI: The applicant was a member of ANC and he was a chief marshall, he was reporting direct to the Executive Branch Committee of ANC.

MR MAPOMA: What was the attitude of the community of Umkababa during that period relating to the police of that area?

MR MAKATINI: The relationship was not good at all the reasons being, the first one would be we had other comrades who died, who had been killed by the police. If I can quote names it will be Sipole Thuli, Mketwha Mimela, ...(indistinct) and others were just shot even though they survived they got injured but they were never killed. Therefore we, community and residents of Umkababa, we never had any trust towards the police of that area. Because of those reasons criminals became in numbers because even though they committed crimes they were never arrested.

MR MAPOMA: Just slow down to allow the interpreters to interpret. Okay, you may proceed?

MR MAKATINI: Sometimes after a certain incident the community will report this to the police and police will never come in time. We as African National Congress, we understood their behaviour. We understood that the reason they were doing so it was because sometimes the same police were accompanying attackers. Like in 1991 police accompanied attackers and 18 people were killed and even Oliver Tambo attended that funeral and another incident which led to the community not trusting the police it was in 1992, 18 January, people were attacked and many people died. We as ANC people we were disappointed.

Other things which happened, I'll put an example, like the people who came here yesterday, some of them who came here yesterday to give evidence, we as the community we decided to take the law in our hands to punish them because police were not arresting them and we thought that maybe police were working together with these people but we never got a certain answer on that.

MR MAPOMA: Who are these people that you are referring to, those whom you say the police were not arresting?

MR MAKATINI: One of them is Sibusiso Luthuli, he came here before this Commission yesterday and another one is Sandile, Etosho Ncomo, him also came before this Commission to give evidence. In others who didn't come here, but these were the people who were disturbing the peace in the community. If I can put an example, we tried to put water or to bring water in Umkababa and these people were disturbing the vehicles which brought the development in the area and they were hijacking those vehicles and we realised that it was going to be difficult for the development in the community.

JUDGE DE JAGER: When were these vehicles hijacked? When was the vehicle hijacked?

MR MAKATINI: In 1991 and in 1992 there was a project to bring water in Umkababa. That was not the end, it went to shops being robbed and they will use cars to go to schools and demonstrate on how they drive those cars, like they're in a car race. We didn't know exactly why these things were happening but we suspected that police were behind these criminals. We held two marches and two meetings. The first meeting which we held was in Umkababa Holiday Resort. There were too many people there but there was one specific person that I remember, Mr Shlomo, the one who came here yesterday to give evidence and that meeting, what was on the agenda was the criminals who were operating in the area and disturbing the ANC. Mr Shlomo took a stand on that day. It was on a Sunday and it was raining. I can quote his words, his very words I still remember. He said

"Leaders, leave everything in our hands. We are tired of criminals. I myself, I do have criminals in my own house therefore you should leave this matter in our hands to discipline."

Unfortunately for Shlomo at that time he didn't know he was going to lose his son. After that we held another meeting. Mr Jeff Radebe was the chair in that meeting. We discussed at length about this and we solved almost things like crime but then we experienced another problem, we decided to march to Umkababa Police Station to give them a petition because we didn't - we wanted them to know that we didn't need two policemen. One is Mr Breytenbach, he was from Umkumazi Police Station and there was another female, her name was Maggie Govender. These were the two policemen who didn't work co- operating with the community.

We had another march, we requested police to come and fetch the memorandum from Umkababa Police Station. There we were talking about the criminals that the community was tired of living with criminals and criminals who are not being arrested by police.

MR MAPOMA: Now were you present on the event that took place on the 29th June, the first incident?

MR MAKATINI: I wasn't present in the first incident but when I got home in the evening I was told what happened.

MR MAPOMA: Were you told about who were assaulted on that incident?

MR MAKATINI: Yes I was told.

MR MAPOMA: Are those people who you were told were assaulted falling in the category of those who were perceived as criminals by your community?

MR MAKATINI: What I can say is that there were many criminals in the area and criminal activities were rife and these were some of them and these people who were assaulted used to steal cattle and goats for sale. On that day they were disciplined, this is what I was told.

JUDGE DE JAGER: Why were they disciplined, what did they do wrong on that day?

MR MAKATINI: What I heard was that three females came, they went to see Mr Ngema and told him that they were gang-raped on the previous night and then the community decided to get hold of the criminals and some of them they didn't catch them but they disciplined those that they caught.

JUDGE DE JAGER: Were they - the discipline that was envisaged did that include killing?

MR MAKATINI: We agreed before we took action that for the ANC to be trusted by the community and to be loved by the community, we agreed that we were going to punish criminals and since these people knew about this, they knew that they were going to be punished. For instance one of the people who came here yesterday to give evidence was one of the people who was punishing criminals but it was ...(intervention)

JUDGE DE JAGER: Was it ever the policy of the ANC to kill people who had committed crimes?

MR MAKATINI: The policy of the ANC says people should be free and under no circumstances it says people should be killed. I think these people died not because the aim was to kill them but the intention was not to kill them and I think even the applicant clarified that.

MR MAPOMA: Now about the second incident which you were involved in, when did that incident take place, what date was it to your knowledge?

MR MAKATINI: It was in the morning on the 1st July. Mr Ngema came and told us that Tokozane Makaza came and reported that she had been raped by Sandile Ncomo and Sandile Ncomo pointed a gun at her and took her and raped her even though she didn't want, it was against her will and when she told us this or when she told Joe this we decided that we should accompany Joe and go to the female's house, or Tokozane's house and find out more information and also we went to Etoshe. We crossed the freeway to area 38 because we suspected that we could find him there.

At that time when we were looking for him and we couldn't find him he was in the toilet but as we were leaving we saw him coming out from the toilet and then when we started talking to him, we questioned him about what Tokozane said and he said it wasn't true so we took him to Tokozane because we wanted Tokozane to say whether it is really him. We took him to Makonga, we first went to Tokozane's home, we didn't find her there. We found her somewhere where we were told she would be and we questioned Tokozane as to whether this was the guy who raped her. Sandile kept on denying that he was the one.

MR MAPOMA: Sorry, when you questioned Tokozane whether the person you heard, that is Mr Ncomo, that is the person who raped her, did she confirm that? Did she positively identify the Mr Ncomo as the person who she alleged raped her?

MR MAKATINI: I remember very well, she started crying and then she pointed her finger straight to Sandile as she was crying and said "yes, it is him."

MR MAPOMA: Okay, you can proceed.

MR MAKATINI: After that we were then certain that it was him because Tokozane had positively identified him. She also said that he pointed a gun at her and I heard him yesterday as he was giving evidence that he had a gun. As we were going with Etoshe we were together with Mape. We started talking about what Etoshe did and another guy came and said Mape had stolen his car and at that moment he didn't even know where his car was. When Etoshe Ncomo was being assaulted I took the knobkierrie from Ngema because I didn't want Mr Ngema to kill him but we wanted just to discipline him.

MR MAPOMA: Where did that take place, the assault now?

MR MAKATINI: In a place called Ngloma.

MR MAPOMA: Is it a sports ground?

MR MAKATINI: No it is not but it is on top of a hill and there's mango trees and avocado trees around that area.

MR MAPOMA: Do you know Themba the person who we are told in this Committee complained about the motor vehicle against Mape?

MR MAKATINI: Yes I do know him.

MR MAPOMA: We have been told that he told you, when I say you I mean the group of people that were there, that he and Mape had settled the matter regarding the motor vehicle. What do you say to that?

MR MAKATINI: As I've already mentioned before is that at that time I was busy with Etoshe. There were too many people, there were more than 200 there but the person we were busy questioning was Etoshe Ncomo.

MR MAPOMA: What I want to find out, the evidence that is before the Committee is that Themba said there is no need to take the matter any further with Mape because he and Mape had resolved the problem regarding the car. In a way he did not continue with the complaint against Mape regarding the motor vehicle so there was no need to proceed with Mape. What do you say to that version?

MR MAKATINI: Yes he did say so that is why we continued to punish Etoshe not Mape but whilst we were busy with Etoshe or administering punishment to Etoshe, we saw Mape running away. I am not certain until today why he ran away, whether those people who were with him threatened to kill him or to punish him.

MR MAPOMA: When he ran away did you participate in those who pursued him?

MR MAKATINI: As I've already explained that at that time I was busy questioning Sandile Etoshe about what he did and also I was telling him that he knows what was going to happen to him if he had done something like that, I was busy with Etoshe. As he himself already mentioned this yesterday.

JUDGE DE JAGER: Didn't you question him at the house of the lady who was raped, Thokazani?

MR MAKATINI: We started questioning him from the time we caught him. We told him that Thokazani had reported that he had raped her. He disputed that. On our way as we took him we kept on questioning him and we told him that he must tell the truth. We went to Thokazani's home. We found her mother and we were told where to find Thokazani.

JUDGE DE JAGER: Could you tell us at what time did you arrest Etoshe? What was the time round about?

MR MAKATINI: I am not certain about the time but I think it was past 7, 8 o'clock somewhere there, between half past seven and eight in the morning.

JUDGE DE JAGER: And at what time did you reach the hill where he was punished?

MR MAKATINI: At about half past nine to 10 o'clock because we delayed because we first had to go to Thokozani's school looking for her.

JUDGE DE JAGER: Now you're at the hill, you start questioning him, at what time did you start punishing him?

MR MAKATINI: It was after he disputed everything what Thokozane had said.

JUDGE DE JAGER: Was that at 11 o'clock, 12 o'clock? What time round about? How long did this questioning last before you started with the punishment?

MR MAKATINI: We took an hour questioning him, I think at about half past eleven, I think that's when we started assaulting him.

JUDGE DE JAGER: Right and when did you finish assaulting him, what time?

MR MAKATINI: In the afternoon I think, lunchtime.

JUDGE DE JAGER: When did Mape start running away?

MR MAKATINI: If I can just estimate I think he ran away at about quarter to twelve.

JUDGE DE JAGER: And what report did you receive back after he ran away? Did the people report to you what they've done to him?

MR MAKATINI: No one came back but then we heard that the people who ran after him killed in the nearby forest.

JUDGE DE JAGER: How far was he killed from the place where you were?

MR MAKATINI: I will estimate and say it's about seven to eight metres away.

JUDGE DE JAGER: That's about from here to where you're sitting, is that right?

MR MAKATINI: As I'm sitting here it is from here to the robots where you take the freeway.

JUDGE DE JAGER: But that's not seven or eight metres, do you know what's a metre?

MR MAKATINI: I was just estimating, I'm not sure but the distance is from here to the robots.

CHAIRPERSON: I have some difficulty with that, I would think about 150 to 200 metres?

MR PANDAY: It is less than half a kilometre from here to the robots.

CHAIRPERSON: Yes.

MR PANDAY: Yes that's more or less.

MR MAPOMA: When Mape ran away where was the applicant?

MR MAKATINI: At the time we were together still continuing to question and punish Etoshe.

MR MAPOMA: Did the applicant not leave you to go and assist in pursuing Mape?

MR MAKATINI: I do not remember him leaving Etoshe going away to pursue Mape.

JUDGE DE JAGER: So is that correct he had nothing to do with the death of Mape?

MR MAKATINI: As far as I can remember we were still questioning Etoshe although there were many people around but I remember he was remember he was around Etoshe all the time.

JUDGE DE JAGER: You didn't hear him ordering people to kill Mape and you people, did you approve of the killing of Mape or not?

MR MAKATINI: Please repeat that question?

JUDGE DE JAGER: Did he or you yourself order any people, commanded them, go and assault Mape or kill him?

MR MAKATINI: As I explained before the policy of the ANC does not condone killing. No one amongst us issued that order to kill him.

JUDGE DE JAGER: Did anybody issue an order to assault him, to assault Mape or to punish him?

MR MAKATINI: No one issued that order to the extent that the applicant himself did not issue that order because Themba had already explained that they had discussed the matter and resolved it.

JUDGE DE JAGER: So there was no instruction or no order given to punish Mape and you didn't approve of the punishment or the killing of Mape?

MR MAKATINI: That is correct.

JUDGE DE JAGER: Was any attempt made to prevent the people from killing Mape or assaulting him?

MR MAKATINI: At that time we were still busy speaking to Etoshe. We just saw him running away and people pursuing him.

JUDGE DE JAGER: Didn't you call on the people to come back and leave him alone?

MR MAKATINI: There would have not have heard us because they were a bit far from us.

JUDGE DE JAGER: Thank you.

MR MAPOMA: To your estimation how many people were there that was at the place?

MR MAKATINI: There were more than 200.

MR MAPOMA: Those who chased Mape, were they part of the group that was interrogating these people?

MR MAKATINI: Some of them had just been standing around they were not part of the group that was questioning Etoshe.

MR MAPOMA: Now I suppose you know all the people who were assaulted during that day?

MR MAKATINI: That is correct.

MR MAPOMA: Were they members of any political organisation?

MR MAKATINI: Please repeat that question?

MR MAPOMA: Were those people who were assaulted members of any political organisation?

MR MAKATINI: Yes as far as I know.

MR MAPOMA: What organisation was it?

MR MAKATINI: As far as I know they were members of the ANC although there were some amongst them who had defected or who were defecting to the PAC but from the initial stages they were members of the ANC.

MR MAPOMA: The evidence from the victims has been that there was no PAC at that time in that area, what do you say to that?

MR MAKATINI: It was in existence at that time to the extent that some of their leaders approached us as the youth league and requested to see us because they had been operating underground so that they may be known in the community therefore at that time there were members of the PAC because when we questioned them on the number of members that they had they responded to the effect that there were quite a number of members.

MR MAPOMA: Who are those members of the PAC who approached you?

MR MAKATINI: The people who approached us were Dobi Ntula and he was with some people from Umlazi to whom he reported. From what they said, they said they do not want the members to be harassed or intimidated that is why they came to ask, to inform us that they as an organisation existed in the area.

MR MAPOMA: Did they tell you of who was a member or members of the PAC in that area?

MR MAKATINI: They did not inform us of that, they were hoping that we could hold a meeting where they would inform us of that. Unfortunately that meeting did not take place.

MR MAPOMA: How did you know then that the victims were members of the PAC?

MR MAKATINI: As I mentioned before some or many of them were initially members of the ANC but there were some that defected to the PAC for instance Mr Sithulu. When we held a march and we went past him he saluted us in the PAC salute which was an open hand.

MR MAPOMA: Was there anything known as the Umkababa Development Trust at Umkababa?

MR MAKATINI: That is correct.

MR MAPOMA: Did applicant have anything to do with this Umkababa Development Trust?

MR MAKATINI: That is correct. That was an organisation that was responsible for the development of Umkababa because we as the ANC were a political organisation and they were responsible for the development of the area.

MR MAPOMA: What was his role or portfolio, the applicant, in the Umkababa Development Trust?

MR MAKATINI: He was a chief marshall and as such if the meeting for a certain committee, you would sit at those meetings, you would have a role to play in the political organisation as well as in the development forum.

MR MAPOMA: Now finally, the applicant applies for amnesty, what is your view regarding his application for amnesty?

MR MAKATINI: In my opinion I would first send out a message to the families of the victims to tell them that Mr Ngema was not alone. When he performed this he was with other members of the community and we should all try to come together and reconcile so that we can build a better South Africa. I would not have a problem if Mr Ngema is given amnesty because he realised his mistake after the first incident. He went so far as to approach the families of those victims and he was in the company of the people who had taken part in the assault.

Secondly, we still welcome Mr Ngema as a community member of Umkababa as well as a citizen of this country. I would also like to thank those who said they supported his application for amnesty and also motivating others to reconcile and come together as Africans. The mistakes that happened then happened at those times of conflict and from the 27th April 1994 we started a new chapter. Let us now go on in that new direction.

JUDGE DE JAGER: Why didn't you people not go to the father of the deceased who gave evidence here and also apologise to the father of Mape? Why didn't you go to him and apologise to him too? You were involved with this incident, you were there, why didn't you afterwards go to him and apologise like the applicants have done in the other matters?

MR MAKATINI: What I can say is that everyone was still confused after that incident. Yes we should have gone to him but it did not happen because at that time we were just shocked at the news.

MR MAPOMA: Thank you Mr Makatini. Thank you Chairperson, no further questions, that's the evidence.

NO FURTHER QUESTIONS BY MR MAPOMA

CHAIRPERSON: ...(inaudible)

CROSS-EXAMINATION BY MR PANDAY: Just briefly Mr Chairperson.

Stanley, do you mind if I call you Stanley?

MR MAKATINI: That is my name. No I do not mind.

MR PANDAY: Okay. Stanley, could you explain to us if the ANC had not decided to take the policies on disciplining the criminals in the area what would have been the result of the community and the ANC, the relationship?

MR MAKATINI: Could you please repeat that question?

MR PANDAY: If the ANC in the area had not decided to take measures to discipline the criminals in the area, what would have been the relationship between the community and the ANC in the area?

MR MAKATINI: Let me first explain that when we refer to the community we are referring to the ANC. More than that it was obvious that no ANC member supported criminality, no one wanted to live in fear. Moreover it created a problem for the ANC for it to function effectively in the area because there were people who hindered the development of the area and because the Umkababa area was known to be an ANC stronghold, there were many of its enemies who would have done whatever they could do destabilise the effectiveness of the ANC in the area.

MR PANDAY: And if this criminal activity continued, would it have effected the following and the trust of the ANC?

MR MAKATINI: The community it would not be that they did not or could not trust the ANC but it was the community itself that decided that it was enough, it had had enough of the criminality of the rapes, of the housebreakings, of the intimidation that was suffered by schoolchildren and also of the drugs that were distributed. Therefore it was the community that took the decision to stand up against these criminals.

CHAIRPERSON: Yes but if the ANC had done nothing, the criminals were just being allowed to continue, wouldn't the people living there say "well, the ANC isn't competent to govern"? Do you understand what I'm putting to you? What we have heard the ANC was the dominant political group in Umkababa?

MR MAKATINI: What I can say let us not distinguish between the ANC and the community but yes, the community trusted the ANC and had faith in the ANC to liberate them and that included being able to live freely and being able to walk freely in your area and we can discuss more even within the perimeters of that liberation.

MR PANDAY: Now Stanley, when Etoshe and Mape were apprehended or arrested by the group of people, now ...(intervention)

CHAIRPERSON: Nobody has said Mape was arrested. He had not said Mape was arrested.

MR PANDAY: Correction, correction, Mr Chairperson.

Stanley, when Etoshe was arrested by the group did Mape accompany Etoshe freely?

MR MAKATINI: Let me first explain that Etoshe was himself not arrested. We just came to him, talked to him and Mape accompanied him of his own violation because they were friends.

MR PANDAY: Now when the questioning was going on with Etoshe about the raping of Thokozane, the behaviour of the crowd of people that were there, can you explain their behaviour? Were they angry, were they calm?

MR MAKATINI: They were very enraged because a day before the three girls had been raped by boys from this area the same thing had then happened with regards to Thokozane. They were very angry about it.

MR PANDAY: Now would it be safe to say that the community was now totally angry about the crime levels at Umkababa?

MR MAKATINI: That is correct, I have mentioned before that there were two marches that took place where the residents of Umkababa were complaining about the high levels of crime as well as the meetings that were held where they unanimously said enough is enough.

MR PANDAY: If for example had Etoshe attempted to run away do you think the community would have chased him as well?

MR MAKATINI: Could you please repeat the question?

MR MAKATINI: Do you think on that day on the 1st July, if Etoshe tried to escape do you think the community would have chased him as well?

MR MAKATINI: I think so because he had to be disciplined since he had done something that went contrary to the rules and the policies of the struggle.

MR PANDAY: Do you also believe that the community was of the opinion that the people that were there to be disciplined were going to be disciplined by the comrades, by the ANC?

MR MAKATINI: Please clarify that question?

MR PANDAY: On the day in question when the community arrived with all of you they were of the opinion that all people that committed crime were to be disciplined, is that correct?

CHAIRPERSON: When the community arrived there there was one crime they were investigating, there was one person who had been blamed for it so how can they have a conclusion that everybody was going to be disciplined?

MR PANDAY: No, I'm leading to the following question, Mr Chairperson.

When the community got ...(intervention)

JUDGE DE JAGER: Mr Panday, the community is not applying for amnesty.

MR PANDAY: No, I accept that the community is not applying for amnesty.

JUDGE DE JAGER: The applicant is applying for amnesty and according to the evidence he wasn't even involved in this killing at all?

MR PANDAY: Mr Chairperson, I accept what Mr de Jager is pointing out but at the same time I'm trying to show the basis that this community believed in the following.

JUDGE DE JAGER: Yes but even if - whatever the community believed, what offence did he commit?

MR PANDAY: Mr Chairperson, at the end of the day at the very least the thing will boil down to common purpose at the very least and the applicant ...(intervention)

JUDGE DE JAGER: No but he didn't have any common purpose, he himself said he didn't want this man to be killed? He didn't participate according to this evidence too? There can be no common purpose?

MR PANDAY: I concede Mr Chairpersons point but as I'm trying to point out Chairperson, that the basis had already been created for people to be disciplined and that the crowd who already believed in the comrades and the ANC were there to see the people were going to be disciplined and if anyone created any act out of the ordinary would have enraged the crowd further resulting in the incident with Mape. Thank you Mr Chairperson, I'll avoid that question and continue. I'll leave it for argument Mr Chairperson.

Now Stanley, tell me are you in any way related to the applicant?

MR MAKATINI: We are not related we are comrades in the struggle.

MR PANDAY: And do you believe that Mr Ngema was acting solely for the benefit of the ANC?

MR MAKATINI: Mr Ngema did not act just for the ANC but it was the community of Umkababa that was tired of being harassed and intimidated by fellow residents.

MR PANDAY: Thank you.

NO FURTHER QUESTIONS BY MR PANDAY

CHAIRPERSON: Does that conclude your questions?

MR PANDAY: Yes.

CHAIRPERSON: Thank you.

CROSS-EXAMINATION BY MS REDDY: Thank you Mr Chairperson.

Would you agree if I said to you that the Umkababa Police had a large area to service?

MR MAKATINI: Please repeat that question?

MS REDDY: Wouldn't you agree if I said to you that the Umkababa Police had a very large area within which to service in other words they had a lot of people to see to, lots of needs to look after?

CHAIRPERSON: Were there Umkababa Police? Isn't it Umkomaas Police?

MS REDDY: Mr Chairperson, I stand corrected but did the police in that area have a large area, have a big public to service?

MR MAKATINI: Yes I accept that the Umkomaas Police Station is small and they service at 250 kilometres. The next police station at Amanzimtoti is far and they do not service only Umkababa but also other areas that were mentioned by the people who came to testify yesterday.

MS REDDY: So couldn't that very well be the reason that the police took a long time within which it responded to complain?

MR MAKATINI: It may be but let us all understand that some of the police, as we marched against the police, there were people who behaved and acted in a manner that was unacceptable.

JUDGE DE JAGER: Ms Reddy, I think we'll accept they had a large area but we'll also have to accept that the perception in the community was that they were not serving the community to the best of their ability so as far as that is relevant for the applications we'll accept it.

MS REDDY: Okay, I actually have a problem accepting that because evidence was led that whenever a complaint was led it was positively responded to and to go further I would submit that after the first incident and the second incident the police positively investigated and the due court process followed so that is where my questioning is leading to.

JUDGE DE JAGER: Well I don't think it's really relevant as far as amnesty is concerned whether the police - it wasn't the police that did the killing or didn't do the killing, so as far as amnesty is concerned I don't think really it's relevant but you could continue but I don't think it's relevant either side.

CHAIRPERSON: Isn't the position those of us who have unfortunately have experience with these things over the years that the police force throughout the country was grossly under-equipped, that it wasn't a deliberate decision by the police not to go there for an hour and a half, that most instances they had one or two vehicles that would be engaged elsewhere and they just couldn't do more?

MS REDDY: I would entirely accept that.

During the kangaroo courts, who was the chief decision maker?

MR MAKATINI: At that time no one was responsible for taking decisions but Etoshe was being questioned about the offence that he had committed.

MS REDDY: Who actually suggested ...(intervention)

JUDGE DE JAGER: Sorry, I didn't hear the interpretation?

INTERPRETER: The witness said no one was responsible for taking decisions but Etoshe was questioned on the offence.

JUDGE DE JAGER: Thank you.

MS REDDY: And who actually suggested that Etoshe should be disciplined and in the manner in which he should be?

MR MAKATINI: I cannot state a formal recommendation except for that a member of the community suggested that he should be given ten lashes on the buttocks for that offence.

MS REDDY: Let me just take you back to the second incident and especially where you said something concerning the Mape killing. Did you actually decide at that disciplinary hearing that Mape was not responsible for the theft of Themba's car?

MR MAKATINI: Themba Ncobo explained that they had already discussed the matter with the deceased's family therefore there was no reason to continue questioning Mape because of Themba's explanation.

MS REDDY: The applicant in his evidence in chief very emphatically stated before this Committee that Themba said that his car was stolen, it was recovered in Empangeni, "I told Mape that he should be punished and all the comrades agreed." What is your response to that?

MR MAKATINI: As far as I can remember Themba did state that his vehicle had been stolen but had been recovered later but he did also explain that he had communicated with the family and discuss the matter. That is what I remember.

MS REDDY: So in other words you're telling me the version that the applicant related to this Committee is untrue because he stated and I quote

"He should be punished and all the comrades agreed."

CHAIRPERSON: Can I interrupt? I think you should go back a bit further. My recollection is that somebody said that Mape had stolen Themba's car and driven it to Empangeni and that the applicant then decided it was necessary for Themba to be present and sent for Themba to ask him about his car?

MS REDDY: That is correct and what I actually related now came after that.

CHAIRPERSON: Do you remember the applicant saying that Themba should be sent for?

MR MAKATINI: Is that question directed to me?

CHAIRPERSON: Yes.

MR MAKATINI: Yes he did say that for the reason that Sonyaman had accused Mape of stealing Themba's car therefore it was proper to find someone who was going to confirm those allegations.

CHAIRPERSON: And as has been put to you the applicant says he told, he the applicant told Mape he deserved to be punished because Themba's car had been used to help the community and the members of the community agreed?

MS REDDY: And you just told us that you were there during the whole incident on the 1st July 1993?

MR MAKATINI: Please repeat that question?

MS REDDY: I'm just confirming what you said, you told this Committee just a while ago that you were there present during the whole incident on the 1st July 1993 and for you to have missed that seems very improbable?

MR MAKATINI: Yes that is correct.

MS REDDY: It could very well be that the applicant gave an untrue version of what occurred on the 1st July 1993?

MR MAKATINI: Well he related the incident as it happened then. It could be that he has forgotten some of the details because the incident happened a long time ago. The same applied to me.

MS REDDY: I'm actually not satisfied with the response but I'll actually proceed.

Do you have any concrete proof that the victims in the first incident were PAC besides the open palm salute by Luthuli?

MR MAKATINI: I do not have such proof because I'd never seen their membership cards.

MS REDDY: Thank you. No further questions.

NO FURTHER QUESTIONS BY MS REDDY

MR MAPOMA: I have no further questions.

NO RE-EXAMINATION BY MR MAPOMA

CHAIRPERSON: Thank you. Does that conclude the evidence?

MR MAPOMA: That concludes the evidence Chairperson, thanks.

MR PANDAY: Mr Chairperson, I'm not aware of any other witnesses.

CHAIRPERSON: And I noticed that you've given a note, you don't want to consult?

MS REDDY: No thank you.

CHAIRPERSON: Very well, should we take the adjournment at this stage and you can then address us?

MR PANDAY: Yes, that's fine Mr Chairperson.

WITNESS EXCUSED

CHAIRPERSON: Let's hear argument, if any?

MR PANDAY IN ARGUMENT: Thank you Mr Chairperson.

Mr Chairperson, firstly it's not in dispute that the applicant was the chief marshall or the leader of the community in the area. It is not in dispute there were problems in the area namely criminal activity and as a result of this criminal activity the community was being effected and that threatened the progress and growth of the ANC in the area. Now the applicant applies for amnesty namely two incidents that which occurred on the 29th June 1993 and the second incident which occurred on the 1st July 1993. I must point out initially the discrepancy with the dates in question but that was conceded by the applicant as to he may have been mistaken as to the second incident.

Now in dealing with the first incident, Mr Chairperson, you've heard the evidence that was led. The applicant was clear in what took place and for what reasons it took place. The victims called upon witnesses to explain what had taken place on the day in question and in the materialness of the evidence that was led, that was not disputed. The one witness that was called, the so-called eye witness, in his evidence he can't confirm as to why the incident was taking place. All he knows that he was there. He then tries to lead evidence to the effect that the applicant was assaulting the two persons who were murdered. These were the two persons with firearms and if one has to weight the probabilities at the same time, they would stand seated in the ground at the same time. Now if one has to weigh the probabilities of that, if two persons with a firearm were apprehended by the applicant that seems improbable to believe and one must accept that the applicant's version is more correct as to the sequence of events that took place on the day in question.

With regards to the incident on the 29th, Mr Chairperson, it's my respectful submission that the applicant, as the leader of the community, namely the people who followed the ANC policies, he was there to protect two people, two groups, that being the ANC itself and their objectives and policies and as well as people who trusted and believed in the ANC and if one had to fail in not protecting the community that threatened the growth of the ANC.

Now there's been evidence led insofar as the police response to the community, to the ANC and one must accept that during this period of time there were not good relations between the ANC. We've heard evidence by I think it's Mr Mia, one of the brothers, who testified that there was bias in favour of the IFP and not the ANC.

CHAIRPERSON: Well mustn't one have regard to the fact that this - we were coming towards the end of what had been in effect an armed struggle between the police and ANC. There had been very strong feelings for a number of years?

MR PANDAY: That is correct, Mr Chairperson, as such the relationships were not ...(intervention)

CHAIRPERSON: So the belief could exist with very little substantial evidence?

MR PANDAY: And that belief continued with the struggle that was being faced and Mr Chairman the applicant as a result of all these problems decided now we needed to discipline the people that threatened the organisation and as such as the chief marshall and the community decided that these people need to be disciplined and as such he was promoting the values of the ANC, the ANC did not support crime, they did not support trouble in the areas and as such as a member he was promoting such growth. It's my respectful submission that with regards to the incident of the 29th that the applicant qualifies for amnesty when the incident took place.

Now in dealing with the incident on the ...(intervention)

CHAIRPERSON: Is there not a possibility, this doesn't detract from the applicant's - that there was a complete misunderstanding on this incident of the 29th, that the two deceased were not aware of the fact that this was disciplinary proceedings, that they merely heard the noise going on and ran to the scene armed to see what was going on and to prevent attacks on their own people, that the applicant in turn did not realise why they were coming but saw armed men coming towards them so he felt he had to defend the members of the community and his people? So one doesn't have to make a finding that the two deceased were members of the PAC or anything of that nature?

MR PANDAY: One doesn't need to make - as the applicant quite clearly pointed out that their actions were being carried out on the basis of disciplining people who were conducting criminal activity, that was the rape of the girls in question and all other ...(intervention)

JUDGE DE JAGER: ...(inaudible) kill the rapists?

MR PANDAY: I concede that, I'll get to the point Mr Chairperson. And as the applicant led in his evidence is that once disciplining the people that they'd initially apprehended here comes the deceased’s threatening the people in the area and mentioning "you would not finish us", finishing us referring to the people and the groups that they belonged to not necessarily political groups but the groups that they belonged to. That was the applicant's evidence and as such as a result of this criminal activity the thing eventually flowed into the applicant defending himself from this would be member of the groups that were being disciplined. That's how I understood his evidence, Mr Chairperson.

CHAIRPERSON: But the point I am making that he may well have been mistaken in his assumption they were would be members of the group. They might have been honest members of the community who were running there to try to prevent what they anticipated to be an attack on members of the community which would explain them saying precisely what he said they said?

MR PANDAY: Well the applicant's evidence was that when the person shouted "you would not finish us" he directed his explanation to the people that they were being disciplined, not the community at large.

CHAIRPERSON: That's what the applicant thought but he may be mistaken, then they have come there. The point I'm trying to make is that it is not necessary and I'm very unhappy on the evidence before us in the light of the evidence given by the relations of the deceased that they were members of any underground criminal organisation?

MR PANDAY: I concede with what Mr Chairperson says that it may have been the mistaken belief as to what took place but at the same time there's also no evidence to the contrary to suggest what had in fact taken place.

Now Mr Chairperson, in dealing with the incident that took place on the 1st July I can foresee that one would have problems immediately with the death of Mape. Mr Chairperson, we've had the applicant's version as to what took place on the day in question. Here they had apprehended Etoshe for the raping of Thokozane. Mape accompanied them and whilst one was trying to deal with Etoshe, it was shouted out from one of the members of the community that Mape had something to do with the theft of the motor vehicle. The applicant states in his evidence that after hearing this he advised Mape that he also needs to be disciplined but at the same time one had sent for the owner of the motor vehicle, Themba, who comes in and confirms that the problem has been more or less resolved.

Now I'm sure the victims or the representation for the victims are going to immediately point out that the witness that was called on behalf of the applicant states that he can't recall an order being issued or not issued with regards to Mape but what one must bear in mind that the witness also stated that he cannot remember the exact sequence of events on that day in question and it's possible that this was also mentioned and obviously the applicant gave evidence as to what took place on the day in question.

Now in dealing with Etoshe the evidence is as such that there was ...(intervention)

JUDGE DE JAGER: We haven't got the problem with Etoshe, he's not applying for amnesty as far as or does he apply for amnesty as far as Etoshe is concerned?

MR PANDAY: I think it is the case Mr Chairperson.

JUDGE DE JAGER: But okay ...(intervention)

CHAIRPERSON: It's not in his application form, he refers to five people being assaulted, there were five people the day before?

MR PANDAY: I concede Mr Chairperson.

JUDGE DE JAGER: But even so as far as Etoshe is concerned I don't think we could discuss, you should tell us for what he's applying but we're concerned about Mape.

MR PANDAY: Now in respect of Mape Mr Chairperson it is obviously that the applicant concedes that he physically had nothing to do with the death of Mape but at the same time one must take into consideration that he in his evidence mentions that Mape needed to be disciplined. Now as I've mentioned that the witness who was called on behalf of the applicant mentions that he can't recall that and at the same time the witness also concedes that under cross-examination that he also can't remember as to what - can't remember as to every detail that occurred on that particular day in question.

Now if the applicant, if one is to go with the applicant's version that he initially confirmed that Mape needed to be disciplined then the applicant has created the basis for the actions that followed thereafter. He may have not been physically involved in the murder of Mape but his actions had already incited the crowd.

JUDGE DE JAGER: Would I be guilty of murder if I would say that rapist deserved to be punished and people would go on and kill him?

MR PANDAY: Well Mr Chairperson, one must judge it in the light of the community of the time, they were faced with problems of crime.

JUDGE DE JAGER: No legally Sir, we've got to do with the legal question whether he is guilty of an offence because he could only get amnesty if he is guilty of an offence?

MR PANDAY: Well Mr Chairperson, one is not too sure whether he was convicted on culpable homicide or murder in this matter. Unfortunately we don't have the judgement nor do we have the sentence before us to confirm what sort of conviction if ...(intervention)

JUDGE DE JAGER: Well even culpable homicide on that basis.

MR PANDAY: If his actions incited one to result in the death of someone, it's my respectful submission that he will be guilty as carrying out such an instruction and as such that is how the applicant is now involved in the murder or the death of Mape.

CHAIRPERSON: But his punishment is a whipping on the behind with a sjambok, that is what he anticipates.

MR PANDAY: I concede that Mr Chairperson but at the same time after having the crowd incited that one needs to be punished whereby one now flees from the scene in question it continues the message that discipline needs to be carried out and as a person ...(intervention)

CHAIRPERSON: But not killing, why should he foresee that decent clean living members of the community would commit murder, deliberate murder?

MR PANDAY: Well Mr Chairperson, as the person who incited such discipline, he ought to have foreseen that the possibility existed had a mob or the community ran after someone to discipline them that that person's life may have resulted in it being taken. It's therefore my respectful submission Mr Chairperson that as the leader of the area he incited such crowds and unfortunately that led to the death of Mape. It's my respectful submission that he ought to quality for amnesty as well in respect of the second incident. Thank you.

MS REDDY IN ARGUMENT: Mr Chairperson, Members of the Committee, audience, it is common cause that the applicant had actually taken the law into his own hands and by doing so he didn't improve the conditions in the Umkababa area but added to the corruption. Evidence was led by the witnesses and victims that during the two incidents in question the applicant played a chief role in the disciplinary action and if I could go further on that point, evidence was led that the applicant also acted on his own accord when assaulting the alleged perpetrators.

What will actually stop the applicant if he is granted amnesty here today in taking the law into his own hands yet again? We have heard evidence from the witnesses that they would be afraid if the applicant is freed.

Evidence was led by the eye witness and victims that they didn't see the two deceased, that's Mia and Chetswayo with firearms neither did they hear any gunshots and yet the applicant led evidence that the deceased had firearms and shots were fired. Further, his statements on both occasions were that when he saw that the deceased had the firearm he hid behind a tree without being seen and then decided to hit the deceased with a knobkierrie on the head and then disarmed the two deceased and thereafter the public continued the assault and thus the two deceased consequently died. Certainly that version doesn't hold water. We would accept the version that the applicant had disciplined the alleged perpetrators on the 29th June 1993 because of the alleged rape but what we certainly can't accept is the discipline of Mape Shlongwa because evidence was led that the excuse that the applicant used, that being the theft of the car, was incorrect.

There were also conflicts in evidence given by the applicant and the evidence given by the witness who corroborated certain bits of the applicant's evidence. The applicant said that it was decided at that kangaroo court that Mape should be disciplined because of the theft of the car and this was contradicted by the witness who stated that they decided not to discipline Mape because the issue of the car theft was resolved amicably between Themba and the deceased.

Further Mr Chairperson, the applicant was fully aware that two people had died as a consequence of the kangaroo court yet recklessly without remorse, without due consideration, he proceeded to do the very same thing on the 1st July and yet again an unjustified killing happened. It's on those bases that I ask the Committee to thoroughly investigate the material before us today in deciding whether amnesty should be or shouldn't be granted on those bases. No further submission, thank you.

MR MAPOMA IN ARGUMENT: Thank you Chairperson.

Chairperson, I would like to draw the Committee's attention to the fact that not only is it undisputed that the applicant was a member of the ANC and the chief marshall, it is also undisputed that he was a commander of the SDUs in that area. The activities of the SDUs, Chairperson, have been condemned or have been found by even the TRC to have been acts of gross violation of human rights. To this end, Chairperson, I would like to refer the Committee to Volume 3 of the TRC report on page 299 where the TRC says, I want to read this, Chairperson:

"The Commission finds that the ANC at a regional level in Kwa-Zulu Natal knew that the members of the SDUs were engaged in unlawful acts including killing, attempted killing and severe ill-treatment which constituted gross violation of human rights and that it failed to ensure that those responsible for such violations were disciplined or brought to justice. To this extent the ANC is accountable for such gross violations of human rights."

The reason why I'm quoting this, Chairperson, I want the Committee to take into account the applicant is one of those persons for which the ANC has been found accountable for gross violation of human rights. In a way those activities were activities which the ANC is liable for, which the ANC accounted for and took responsibility for.

Now coming to the question of what happened on that day which is usually referred to as the people's court, it must be born into account, Chairperson, that the applicant was a kingpin of what was happening there, if I may put it that way because of the chief marshall. He says in his evidence that:

"I told the community what has to happen of these people"

That was on the first day. On the second day as well he says:

"I told the people what I told them yesterday, what has to happen of these persons."

Then there was assault on Etoshe and then there's this question of Mape which seems to be a complicated one, so to speak. In his account the applicant says that Mape ran away, people chased him, he doesn't know what happened but it is my argument, Chairperson, that it cannot be said that simply because he says he doesn't know what happened of Mape it then follows that he does not claim responsibility of what happened to Mape. Unfortunately it was not put to him as to whether he associates himself or not with the consequences that befell Mape but if the matter is looked into in it's proper context and is looked into holistically, what is almost clear Chairperson is that there was a mob, the situation must have gone out of hand even though he presented himself initially as a person who was going to give direction, he lost control because he never chased those who were chasing Mape and stopped them and his action therefore triggered what resulted in the death of Mape. It will be remembered, Chairperson, that he was convicted in the Regional Court for the killing of Mape. That in itself in terms of jurisdiction shows that he was not convicted of murder of Mape but at most of culpable homicide.

JUDGE DE JAGER: Where could we find that, that he was convicted of culpable homicide?

MR MAPOMA: We can't find it Chairperson because we don't have the court judgment at this point in time but the jurisdiction of the regional court is not murder, murder cases are dealt with in the High Court.

JUDGE DE JAGER: No the Regional Court has the jurisdiction to hear murder cases?

MR MAPOMA: Oh, I made a mistake, Chairperson, I will leave it there, I will leave it there but the point I'm driving home is that whatever befell of Mape which made him lose his life, the applicant cannot be found not responsible for that because he is the person who triggered the community who were there. He told them that "you know what is going to happen of these people whom we are condemning now and then Mape ran away ...(intervention)

JUDGE DE JAGER: You say he had a common purpose?

MR MAPOMA: Yes, that's the point I'm driving home, Chairperson.

JUDGE DE JAGER: Yes.

MR MAPOMA: And he is accountable for that, he is responsible for what happened to Mape even though he might not have been there.

I will not deal with other issues, Chairperson, which have been dealt with. I think that is all Chairperson that I wanted to bring into account. Thank you.

MR PANDAY: Nothing further Chairperson.

CHAIRPERSON: Right, we'll take time to consider our decision. In the meantime if anything revolves around it, surely it would be possible to find out from the prison authorities what he was convicted of and sentenced?

MR MAPOMA: I will endeavour to do that Chairperson in the meantime, thanks.

CHAIRPERSON: Are we ready to proceed with the next matter we have to deal with today?

MR PANDAY: Mr Chairperson if we may just take five minutes adjournment to sort ourselves out?

CHAIRPERSON: Very well, five minutes.

COMMITTEE ADJOURNS