CHAIRPERSON: We now come to the application of Bongani Sidney Dunywa and the Committee remains the same. The Evidence Leader remains the same and the only change is the counsel for the applicant. Would you please put yourself on record?
MS DE KLERK: Mr Chairperson, I'm Marcia de Klerk and I appear for the applicant in this matter.
CHAIRPERSON: This is another one of the matters that we've been hearing this week where the application forms seem to be a little out of order and the application form we have was signed on the 4th April 2000, a long time after the cut-off date but there is correspondence before us referring to an earlier application and citing the reference number and we gather that there has been some problem in getting any reply from the attorney who acted for him, who was responsible for filing some of the earlier matters. It seems to us we can merely proceed on the basis of the application forms which is now before us unless any of you have anything to say to the contrary?
MS THABETHE: I have no objection, Mr Chairperson.
CHAIRPERSON: It is clear that there was an attempt made timeously and what's happened to it we just don't know at the moment. So are you calling the applicant?
BONGANI SIDNEY DUNYWA: (sworn states)
EXAMINATION BY MS DE KLERK: Mr Dunywa, just to give the Committee some personal details. How old are you?
MR DUNYWA: I am 30 years old.
MS DE KLERK: Where are you presently living?
MR DUNYWA: I am residing in Johannesburg.
MS DE KLERK: With whom are you living?
MR DUNYWA: With my relatives.
MS DE KLERK: Are you married?
MR DUNYWA: No.
MS DE KLERK: Do you have any children?
MR DUNYWA: Yes I do.
MS DE KLERK: How many?
MR DUNYWA: Two.
MS DE KLERK: Okay, prior to your imprisonment, did you work?
MR DUNYWA: Yes.
MS DE KLERK: And now are you presently employed?
MR DUNYWA: No, I am not employed.
MS DE KLERK: What education did you have prior to your imprisonment?
MR DUNYWA: I had completed Standard 10.
MS DE KLERK: And what education do you have now?
MR DUNYWA: I'm completing my MBA.
MS DE KLERK: Okay. Where were you living before going to prison?
MR DUNYWA: I resided at Paddock.
MS DE KLERK: And how long did you live there?
MR DUNYWA: I think I've lived there all my life.
MS DE KLERK: And at the time when you were living at Paddock did you belong to any political party?
MR DUNYWA: Yes.
MS DE KLERK: What was the name of that political party?
MR DUNYWA: It was the ANC.
MS DE KLERK: Which branch of the ANC did you belong to?
MR DUNYWA: The Potchefstroom branch.
MS DE KLERK: And how did you become to belong to the Potchefstroom branch of the ANC?
MR DUNYWA: Briefly, I was an activist, a political activist at school so that when the ANC was banned in 1990 I contacted the Potchefstroom branch and requested them to launch a branch in Paddock because there were many people who were interested in joining the organisation.
MS DE KLERK: Why did you choose the ANC?
MR DUNYWA: Because I supported the policies and the objectives of that organisation.
MS DE KLERK: And did you yourself play an active role in the ANC?
MR DUNYWA: Yes I did.
MS DE KLERK: And what was your role?
MR DUNYWA: I was involved in educating people about the objectives, policies and the general direction that the ANC was taking and what the aims of the ANC were with regards to this country?
MS DE KLERK: And how did you go about propagating the ANC?
MR DUNYWA: I would call various meetings at Paddock. Sometimes we'll also hold workshops spreading the message that the people should be encouraged to join the ANC.
MS DE KLERK: And how were decisions made at the Paddock branch?
MR DUNYWA: Decisions were taken at meetings. However, at other times some decisions were taken by executive members without the knowledge of general membership.
MS DE KLERK: Did you, as a member of that branch, have any authority in the decision making process?
MR DUNYWA: Yes.
MS DE KLERK: Can you tell us now a bit about the political instability in the area in which you lived, in the paddock area?
MR DUNYWA: Yes I can do that. At that time we were harassed by Security Forces and the police and sometimes we would clash with the IFP but that was not very prevalent prior to 1990. After the unbanning of the ANC some members of the ANC left the organisation and they colluded with the police and later on started harassing the community and were responsible for the deaths of many people in our area.
MS DE KLERK: How did your branch react to the killings?
MR DUNYWA: We reported the matter and we were advised to follow this issue up and see who was in fact responsible for all these activities and doings in the name of the ANC.
MS DE KLERK: And did you follow up?
MR DUNYWA: Yes we did.
MS DE KLERK: How did you follow up?
MR DUNYWA: There was a group of police who was sympathetic to the ANC but they did this covertly. These policemen were able to give us inside information about what was going on within the police with regards their struggle that they were waging against the ANC. Besides that we also followed up allegations about the deaths of various people.
MS DE KLERK: Okay, can we move now to the murder for which you were convicted? Who was this person?
MR DUNYWA: It was Nyani Xolo.
MS DE KLERK: And did you know Mr Xolo?
MR DUNYWA: Yes I knew him.
MS DE KLERK: How did you know him?
MR DUNYWA: We grew up together.
MS DE KLERK: And did he belong to any political party?
MR DUNYWA: As far as I know he was not affiliated to any organisation.
ADV SANDI: What did he do for a living, what was his occupation? A student, a working somebody, what was he?
MR DUNYWA: He lived and worked in the mines but when he returned in 1990 during the political unrest he collaborated with this group of dissident members who had turned against the people and that is how he lived.
MS DE KLERK: What steps did you try to confirm that he was a member of this group?
MR DUNYWA: Firstly, as I mentioned before, there were police persons who were able to supply us with information with regards to people like him. Moreover, he was always in the company of those people and we used to follow on their activities that they did towards the community then.
MS DE KLERK: So what was your reaction when you discovered that he was a member of this group or he associated himself with this group?
MR DUNYWA: After we had confirmed these reports, that he was indeed in collaboration with these people, we held a meeting and this matter was discussed. The meeting decided that these people should be eliminated.
MS DE KLERK: Who called this meeting?
MR DUNYWA: It was myself.
MS DE KLERK: And where was this meeting held?
MR DUNYWA: In the Anglican Church in Paddock.
MS DE KLERK: And how many people attended this meeting?
MR DUNYWA: I think about a hundred people attended this meeting.
MS DE KLERK: And what was decided at this meeting?
MR DUNYWA: At that meeting it was decided that because of what they had done to the community, undermining the image of the ANC, it was decided that they should be eliminated.
MS DE KLERK: And how did you decide to implement this decision?
MR DUNYWA: A subsequent meeting of the executive was held where it was decided that we would form groups and those groups would be responsible for those tasks of eliminating these individuals.
MS DE KLERK: Who were the members of the executive committee?
MR DUNYWA: It was myself, Andreas Xolo, Scebe who is now deceased.
MS DE KLERK: And was the regional branch, that is the Port Shepstone branch informed of this decision that you all had taken?
MR DUNYWA: No, we did not inform them.
MS DE KLERK: Okay. Can we move now to the ...(intervention)
ADV SANDI: Why did you not inform them?
MR DUNYWA: There were situations that were sometimes urgent and sometimes compelled that we take action immediately before we even report such instances to the branch.
MS DE KLERK: So on the evening, can you tell us about what happened the evening of the 26th October 1990? In particular, what was the role that you played?
MR DUNYWA: I was at home all day and Comrade Dan Gumede came to me, reported that the one of the dissident people, Mr Nyani Xolo was at the bar drinking. Then already knew of the decision to eliminate these people. I then told them to organise or to ensure that Mr Xolo is separated from the people that he was drinking with or he waits until they disperse. I also sent him to Comrade Tulani, that is to enlist his assistance. We then left and then Gumede took the deceased and his companions. After a while they dispersed after Dan had convinced the deceased to go with him. He followed them to a bushy area and that is where we attacked Nyani Xolo. I was armed with a sharp instrument. The others had knives. We left him there after he had been killed.
MS DE KLERK: What was the reason were you participating in this murder?
MR DUNYWA: I had already issued out an order that he be eliminated as the chairperson and I had to ensure that order was carried out.
MS DE KLERK: And how do you feel now about that you played in that incident?
MR DUNYWA: I wish to state particularly to his family that I feel regret that he died. However I would request them to extend their hand in reconciliation, mindful of political situation at the time because we were at war with the then government which was in collusion with the IFP and Security Forces. Some situations pressured or compelled us to act as we did. Perhaps the deceased could have played a constructive role in the development of this country had it been otherwise. Therefore I reiterate to the relatives and friends for them to be mindful of the political situation at the time, particularly on the bearing it had on us as political activists. I would request perhaps his father to place himself in my shoes and look back at what happened then. Perhaps he would be able to see that he could have found himself in the same situation because we were advancing the objectives of the ANC then.
MS DE KLERK: What happened after the murder, did you tell anyone what had occurred?
MR DUNYWA: I did not inform anyone, not even my parents.
MS DE KLERK: Did you report the incident to the Port Shepstone branch of the ANC?
MR DUNYWA: Besides that I did not report it to my family, but I did report it to the branch in Port Shepstone.
MS DE KLERK: And what was the reaction of the Port Shepstone branch?
MR DUNYWA: They promised me that if the police follow the issue up and I am implicated they would try to assist me in getting legal representation.
MS DE KLERK: Do you feel that the killing achieved it's objective?
MR DUNYWA: Yes that is correct.
MS DE KLERK: Why do you say this?
MR DUNYWA: Because after his death his colleagues fled the area and carried their activities elsewhere and there was a relative peace in the area and the community understood then who had been responsible for harassing them and for the element of criminality that had existed then and the people realised who their enemy was and who was advancing the objectives of the liberation struggle.
MS DE KLERK: You were subsequently arrested, were you not?
MR DUNYWA: Yes I was arrested.
MS DE KLERK: And who represented you at your trial?
MR DUNYWA: It was a Mr Siloshni Pillay.
MS DE KLERK: And who paid for your legal representation?
MR DUNYWA: It was the ANC.
MS DE KLERK: And did you tell the truth at your trial?
MR DUNYWA: Yes I did.
MS DE KLERK: Mr Chairperson, that is the evidence.
NO FURTHER QUESTIONS BY MS DE KLERK
CROSS-EXAMINATION BY MS THABETHE: Thank you Mr Chairperson.
At the trial did you explain the political motive behind the killing of Xolo?
CHAIRPERSON: ...(inaudible)
INTERPRETER: The speaker's mike is not on.
MS THABETHE: Yes, except Mr Chair on page 26 of the sentence.
CHAIRPERSON: ...(inaudible)
MS THABETHE: Yes, because he pleaded guilty, yes.
CHAIRPERSON: Right, do you have any questions?
MS THABETHE: Yes Mr Chairperson. Actually I would like to refer the Committee to page 26 of the sentence where - the fifth line
"Although you may have met the deceased coincidentally on that night, the killing was nonetheless premeditated in that it flowed from an earlier decision taken at a meeting to which you were party to kill the deceased."
Would this be the meeting you were talking about earlier on in your evidence?
MR DUNYWA: That is correct.
MS THABETHE: My question is, in court or in your statement did you explain the political motive behind the killing of Mr Xolo? The political motive?
MR DUNYWA: Yes I did explain but the presiding judge did not take much notice of that evidence because he said many times people had killed others taking the law of the country into their hands, therefore he was not in a position to accept my reasoning and said I should have left the matter to the police but I did explain to the judge that the police were in collusion with the deceased, therefore were not going to help us but the judge did not take any notice of that explanation.
MS THABETHE: You've indicated that you grew up with the deceased in the same area and you've also indicated that you say he was working with the police. What period was this, during which year?
MR DUNYWA: And this happened over a short period in 1990. The deceased joined these criminals later. After they had been in operation for a long time.
MS THABETHE: Why I'm asking you this is because Mr - the deceased's father is here, he is present today and if it's necessary, he can come in to testify as well to the fact that the deceased was working in Johannesburg at the time of his death and he had been working in Johannesburg from about 1986/1987. Now would you dispute this as a person who grew up with him?
MR DUNYWA: I would dispute part of what you said. I will concede that yes, he did work in the mines as stated by his father but I hope he knows that on his return in or around June 1990 he associated himself with this group of criminals. He must know that very well. I cannot dispute that he did work at the mines but on his return he started all these activities.
MS THABETHE: Just hold it there. Actually when he was killed he was working in Johannesburg, correct?
MR DUNYWA: I would put it this way, it is possible that he did work in Johannesburg then or maybe he was on leave.
MS THABETHE: Let me give you direction. According to his father he had been working in Johannesburg like I said before from '86/'87 and usually visited home now and again. He used to come at home to visit and during this time he was at home on a visit. Now my question to you is you have indicated that he joined the gang in 1990, that is June. Or he associated himself with the members of the gang. Exactly what did he do which showed that he associated himself with the members of the gang given the fact that he just came home to visit and he wasn't staying in the area at the time?
MR DUNYWA: I would like to dispute something stated by his father. I do not know about any employment conditions operating in the mine then but if I look at how long he was at home from June to October I do not think he was on leave, such a lengthy leave. As regards to what he did, I would say he worked with them. I observed that he was with them and as I mentioned before, I did receive reports from the police who worked with us and most decisions that we took then were from the knowledge gleaned from those policemen.
MS THABETHE: In the indictment or the summary of substantial facts there's an indication that Dan Gumede once had quarrel with the deceased, Nyani Xolo, because he had slept - that is Dan Gumede, had slept with the deceased's sister without paying the customary price. Would you know anything about this dispute?
MR DUNYWA: I do not know about that but the investigating officer did mention it to me but I knew that we were at war with the policemen so they could have fabricated, the police could have fabricated evidence to protect their colleagues.
CHAIRPERSON: There was no mention whatsoever of such an incident in the judgement on sentence, was there? In fact there the judge says he would have claimed to believe the deceased was a member of a band which committed crimes and I accept that you subjectively held such a belief?
MS THABETHE: Yes Mr Chairperson, but in the summary of substantial evidence ...(intervention)
CHAIRPERSON: Yes but that is just a summary. If such evidence had been led giving a motive one would have expected the judge to comment on it. He has not done so.
MS THABETHE: I'm indebted to you, Mr Chairperson.
I just want to find out again, what position did you hold in your organisation at the time in 1990?
MR DUNYWA: I would say I was a political education officer as well as being chairperson of meetings that were held.
MS THABETHE: And would you say you had the authority to give the order that Mr Xolo should be killed?
MR DUNYWA: Yes I did.
MS THABETHE: Thank you Mr Chairperson, I have no further questions but I would like an indulgence of the Chair to consult briefly with the victims just to find out if there is anything that I've left out because they are not represented.
NO FURTHER QUESTIONS BY MS THABETHE
CHAIRPERSON: Any re-examination?
MS DE KLERK: Not at this stage, Mr Chairperson.
NO RE-EXAMINATION BY MS DE KLERK
CHAIRPERSON: Right, we'll take a short adjournment.
WITNESS EXCUSED
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: Does that close your case then?
MS THABETHE: It closes my case, Mr Chairperson.
CHAIRPERSON: Sorry, have you closed yours?
MS DE KLERK: I hadn't but I do close my case.
CHAIRPERSON: Right, would you like to address us?
MS DE KLERK IN ARGUMENT: Thank you Mr Chairperson.
The applicant is 30 years of age. He has a matric as well as a two years of a Batchelor's degree which he intends completing. He has brought this application under the provisions of Section 20(2)(d) and that is that the offence was committed in furtherance of a political struggle against persons who he believed to support the then apartheid government by corroborating with the Security Forces and Inkatha. The offence was committed in the course of a reaction to a group of persons who were seen to be working with both Inkatha and the Security Forces and these Security Forces and Inkatha were responsible for destabilising and attempting to divide and to ameliorate the support for the ANC in the Paddock area from which the applicant belonged. The applicant firmly believed that the deceased belonged to this group of persons through his association with these persons and him and his co-accused attacked the deceased and injured him which resulted in the deceased's death. The applicant was convicted and sentenced to nine years imprisonment for which two years was suspended by Mr Justice Page. He effectively served five years of his prison term. I submit that the objective of the applicant's act was to eliminate the group to which the deceased belonged to as they were seen as a threat to the ANC and also not only as a threat but also as bringing the ANC in a bad light within the Paddock area. Therefore the offence was primarily directed at the Security Forces within the applicant's area through the individuals which associated themselves to the Security Forces and the offence was committed in the execution of an order. However, this was without the approval of the Port Shepstone branch to which the applicant was a member.
I submit that there is a direct political conflict between the applicant and the members of the ANC branch in the Paddock area and the Security Forces and Inkatha in that area during that time in 1990 and their main objective was to prevent the Security Forces from destabilising and dividing their community. It's the applicant's evidence that after the killings the ANC was able to consolidate themselves and to renew the support for the ANC and to place the ANC in a better light in the paddock area and it's also submitted that the applicant honestly believed that after the offences which they had committed they were able to then protect the community from the violence of this group of people and Security Forces.
It is submitted that the applicant didn't commit the offence for financial gain. All he sought to do was to drive the Security Forces from the area so that they could strengthen their position as ANC members and I submit that the applicant has made out a case for the relief which he seeks and I ask this ...(intervention)
CHAIRPERSON: One factor which I think should be mentioned which I should have placed on record earlier, I think, is that we have been given a letter from a firm of attorneys acting for the ANC which states that on the instructions of the Port Shepstone branch of the African National Congress, they represented the applicant apparently at his trial which would appear to indicate that the ANC also believed that it was a political objective.
CHAIRPERSON: Right, any submissions?
MS THABETHE: No Mr Chairperson, I have no submissions especially in the light of the letter that you refer to.
CHAIRPERSON: Right thank you, we will take time to consider our decision.
MS THABETHE: Thank you Mr Chairperson, that concludes our roll for today.
CHAIRPERSON: What time tomorrow?
MS THABETHE: Half past nine.
CHAIRPERSON: Half past nine?
MS THABETHE: Yes.
COMMITTEE ADJOURNS
