MR MKANUNU: Mr Chairman and members of the Committee, the next witness we are calling is Mr Michael Ndzotoyi.
CHAIRPERSON: Sorry, could you repeat his surname?
MR MKANUNU: Michael Ndzotoyi.
CHAIRPERSON: Thank you.
ADV POTGIETER: Just before we listen to your testimony, I am going to ask you to take the oath, can you just switch on your microphone by pressing on the red button there please, the red button. Can you please stand.
MICHAEL NDZOTOYI: (sworn states)
EXAMINATION BY MR MKANUNU: Thank you. Mr Ndzotoyi, how old are you and where do you reside?
MR NDZOTOYI: I am 51 years old and I am staying in Walmer, 62 Union Road.
CHAIRPERSON: And age?
MR NDZOTOYI: 51.
MR MKANUNU: Mr Ndzotoyi, also I think let's clear it right now, do you want to speak in English or do you want to use an interpreter? The choice is yours.
MR NDZOTOYI: I am comfortable with English and Xhosa, I think I would speak English for the benefit of the panel.
MR MKANUNU: Thank you very much.
CHAIRPERSON: Will you then make sure that his earphone is through to channel 2.
MR MKANUNU: During the period 1980 to 1990, where were you residing?
MR NDZOTOYI: I was residing in KwaZakhele. I was residing in KwaZakhele.
MR MKANUNU: Were you involved in any organisation during that time?
MR NDZOTOYI: I was General Secretary under the UDF of Pebco, which was responsible for most of the campaigns during the UDF time, including the one that we are talking about here.
MR MKANUNU: What is the full name of the acronym Pebco?
MR NDZOTOYI: Port Elizabeth Black Civic Organisation.
MR MKANUNU: Were there any structures, sub-structures of Pebco in the area?
MR NDZOTOYI: We had street and area committees, anti-crime committees. Yes, that is it.
MR MKANUNU: Did those structures have any specific functions?
MR NDZOTOYI: They arose out of the demise that we were faced with, that is the government could not function properly, it could not communicate with communities. This structures were there to administer to see to problems that arose from the communities, to bring about tranquillity amongst the communities.
MR MKANUNU: What was the political mood during that period?
MR NDZOTOYI: There was total onslaught on the side of the government, that is the apartheid government, against all progressive structures, organs of civil society.
The struggle had reached its highest, it was on its highest at that time. The enemy was killing people like flies.
MR MKANUNU: Were they, was the so-called enemy doing anything to protect the welfare of the community?
MR NDZOTOYI: What we regarded then as the enemy, was a composition of the following: the Kits Constables, the Police, the Special Branch, SADF, askaris and informers. Those were the structures that composed at that given point, given time, the enemy.
ADV POTGIETER: During that period, are you able to say briefly what the youth in particular were involved in?
MR NDZOTOYI: As I had already stated that we had sub-structures that I have mentioned, because of the onslaught of the Police, there had become defensive structures, structures that arose to defend communities against the Police, the informers and so on.
These structures were called amabuthu. It was mostly the youth. In other words people's (indistinct), they were there to defend whatever we had gained, and also the annihilation of our people.
I do not know whether that suffices and marshals also as our structures, marshals to keep peace.
MR MKANUNU: You mentioned earlier on the killing, indiscriminate killing of people. Were there also funerals?
MR NDZOTOYI: What was happening, it is difficult for me to make all of you understand what was going on there because it is only those people that were directly involved, like the follow who had spoken here, that can really, really explain what - I can understand what he is saying, but somebody who was not there at that time, who did not feel the atmosphere itself was tense.
There was a barbed wire dividing New Brighton from KwaZakhele, there was shooting on sight from SADF, there were (indistinct) T59 which was killing on sight, at random. There was teargassing, even in churches. There was detention without trial. People were being raped and killed by members of SADF.
There were smashing of doors at midnight, people were wrongfully arrested. Some of them sentenced for things that they did not do, some of them were in prison with us, at Robben Island at well as St Albert.
At this point in time, we saw the disappearance, the enemy was really on an onslaught. We saw the disappearance of the Pebco 3, Hashe, Godolozi and so on at this time. Before that Mtimkhulu, Madaka, the disappearance of one of our Chairperson of the street committee, Maqaka. Disappearance of Kigana.
In Cradock, we see the massacres in Uitenhage and so on. The state of emergency which worsened things, this was the situation where the Police had taken a back seat and the Army was now running our lives in the township.
This is the situation, this is how the situation was like at that given point in time.
MR MKANUNU: Thank you. That is the evidence.
NO FURTHER QUESTIONS BY MR MKANUNU: .
CHAIRPERSON: Any questions?
CROSS-EXAMINATION BY MR NYOKA: Just one Mr Chairperson Mr Ndzotoyi, when an askari informer was found by any of the structures that you mentioned, what was the procedure taken to deal with such a person?
MR NDZOTOYI: We never gave any orders what should be done to askaris as the collective leadership, but a number of things happened.
Here people - I do not know whether my explanation will - let me give you more or less a picture - it was difficult in our township because the Police had sent, there were a number, a large number of informants amongst ourselves. There were people that were arriving, that were disillusioned from outside, askaris that were infiltrating the township, thereby making people to be arrested.
People had to defend themselves against these things so that from us, as the leadership, was not a word or a procedure as to what must be done to these people.
People defended themselves with whatever means they had. I do not know whether I have answered you.
MR NYOKA: Let me reconcile my question and be particular. Did at any stage as Secretary General of the Pebco, did you receive any report that there was a troublesome askari called Monde Nondumo, he is causing havoc in the township by his so-called counter political activities. Did you at any stage during that period receive such a report?
MR NDZOTOYI: There were quite a number of askaris that had arrived. Fortunately I know the area (indistinct), I stayed there, but I had to run away because that was one of the hot spots. The hot spots were Soweto, Bisotweni and Red Location.
I heard that there were askaris in that area. That is some of the reason that I as one of the leaders, moved out of Bisotweni because the Police knew about our movements. I did not know about the name, but there were a number of them that had arrived at Bisotweni.
CHAIRPERSON: From your answer I take it that you had not heard this name, you said you didn't know this name, it had never been told to you?
MR NYOKA: No further questions Mr Chairman.
NO FURTHER QUESTIONS BY MR NYOKA: .
CHAIRPERSON: Any questions Mr Mapoma?
NO CROSS-EXAMINATION BY MR MAPOMA: .
CHAIRPERSON: Re-examination?
MR MKANUNU: None sir.
NO RE-EXAMINATION BY MR MKANUNU: .
CHAIRPERSON: Any questions?
ADV POTGIETER: In terms of the experience at the time you have sketched the mood, the political mood and the situation that prevailed. Assume somebody was suspected of having acted against the community either because the person was thought to be an askari or the person was thought to have been undermining the struggle of the community, was it common place that a person like that would be summoned to a meeting?
MR NDZOTOYI: I think we were an arm mature enough, most of us are ex-Robben Island prisoners. What we did because in order to save people's lives, we had opened a forum where people would go to the stadium if they had their own problem, and express their views.
A number of them, to make an example, I remember about 38 counsellors, we gave them a platform to come and explain to the people and ask pardon from the people that a platform of that nature was there. Some cases were sorted out by street and area committees resolvement. There were forums for people to come out and say I've made a mistake, I am sorry and then we accept those people, were accepted amongst the people.
ADV POTGIETER: Let's take it on the level of the street committee, not the higher level in the community.
Assume that there is an allegation that somebody has acted in a way that undermines the struggle that the community was involved in as you had described it to us, and assume that a meeting is convened for the purpose of dealing with that particular issue, how is the presence of the person in question, how is that normally secured. How is his presence secured to attend the meeting?
MR NDZOTOYI: What used to happen, let me start from the beginning, what used to happen, people would - there would probably be suspicions, there would be suspicions, not probably, that particular person would probably be called by the lowest structure which is his street, be called to come and appear to explain these allegations.
That particular person, if that case is above the street committee, then it goes to the area committee. Whatever decision they take, will finally reach us, must finally come to us. We as a leadership, would explain what must follow. I do not know whether you follow, from the street committee to the area committee and from there, whatever decision they took, we finally had to sanction that.
ADV POTGIETER: Yes.
CHAIRPERSON: Do you mean by that they couldn't do anything themselves, they had to have your authority to do things?
MR NDZOTOYI: No, no, they could take a decision, but they could not carry that decision out without informing us as the leadership that this is the situation.
ADV POTGIETER: Yes, now, let me just come back to the point here. Assume a person who is required to attend a meeting, refuses to do so, what was the experience, what would normally happen?
MR NDZOTOYI: To be honest with you, the situation was so tense and to anybody amongst here, who stayed here in PE, if 15, 20 people came to your place toyi-toying, you went to where they want you to go, voluntarily.
It doesn't matter if you were at leadership level or whatever. That is how tense the situation was. I will not deny that in some instances people were manhandled, but in most cases people just moved.
ADV POTGIETER: Thank you.
CHAIRPERSON: Thank you.
MR MKANUNU: That is the evidence Mr Chairman and members.
NO FURTHER QUESTIONS BY MR MKANUNU
MR NYOKA: Nothing further Mr Chairman.
NO FURTHER QUESTIONS BY MR NYOKA: .
CHAIRPERSON: Mr Mapoma?
MR MAPOMA: No evidence Mr Chairman.
NO FURTHER QUESTIONS BY MR MAPOMA: .
CHAIRPERSON: Are parties ready to address us now or would they prefer to do so tomorrow morning when we start at nine o'clock?
MR MKANUNU: I would prefer tomorrow morning at nine o'clock.
MR NYOKA: I am ready Mr Chairperson.
CHAIRPERSON: Well, I think we will be guided by the applicant.
Can you be here at nine o'clock?
MR MKANUNU: Yes, I will make arrangements with court cases.
CHAIRPERSON: Right, we will adjourn this matter until nine o'clock tomorrow morning. Do we have another matter to proceed with? Do you want a short adjournment to sort things out?
MR MAPOMA: Yes, sir, I would like a very short adjournment.
CHAIRPERSON: We will take a short adjournment.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: Are you ready to proceed Mr Mkanunu?
MR MKANUNU IN ARGUMENT: Yes, I am Mr Chairman and members. The applicant Mr Chairman, was born during June 1969, at KwaZakhele and he hardly attended school, he went as far as standard 1.
At the age of 15, he was perhaps because of circumstances beyond his control, became part of the liberatory structures. This continued under extreme political repression in this country which was highlighted by Mr Ndzotoyi in his evidence.
Clearly one would have expected a person of his age in particular, his degree - level of education to have been undoubtedly subjected to immeasurable traumatic you know circumstances. He in my view, if you look at his evidence here yesterday, he you know, in my view, exposes that kind of situation, he is a person who is in custody for a long time and when he testified, he kept on harping on what he has not applied for, that is the murder and he even broke down and not the kidnapping.
He was even telling you members that you know, people, his languishing in jail while the people who committed the murder, are outside. So upper most in his mind is the issue relating to the murder, the actual murder and you know, he was articulating that in my submission.
He is - he was described by the trial Judge in part of his judgment as a pathetic most unsatisfactory witness and an obvious and unmitigated liar. Well, that is his view over the matter, but except to add that clearly this also impacts on his understanding of what is happening, it impacts on the age at the time this offence was committed and it impacted also on his IQ.
We are dealing with a person who may be living in the past in my view. He grew up in the last decade, a decade of extreme repression as I have said and he is that kind of person who still lives in the past and has not outgrown the last decade in my submission.
He completed an application form in which he set out the events in respect of which he is seeking amnesty. He further completed an affidavit setting out you know, precisely what happened on that day and his involvement therein.
If both documents together with the judgment are looked at, it is my submission that the circumstances surrounding this incident, are clearly set out in those three documents before you. The question of whether he came out honestly and truthfully before you, it is my view subject to the type of person I have highlighted earlier on and consequently it is my submission that the members of the Committee should look at the documents before them, and disregard his evidence yesterday and having done that, come to a conclusion as to whether he should be granted amnesty or not.
I will not persuade you more than say I am admitting that he had a lot of serious contradictions and it was worse when it came to kidnapping, because he referred to taking instead of forcibly taking. It is my submission that you know, you should look at the evidence in regard to his role which he played, even if he minimised it before you. I am submitting that the documents speak for themselves.
Looking at the Act itself, Section 20(3) sets out you know the criteria but if I may start with the bottom part of that Section which says but does not include an act, the exclusion aspect and it says it is for personal gain or out of personal malice.
It is my submission that what came out here yesterday, was that none of those factors are involved. He had no personal gain in the matter and he had no malice against this person. No ill will or spite. All he said was the circumstances that led to this man's capture.
Consequently it is my submission that the application looked at as a whole, is in my submission within the parameters of subsection 3 of the Act, Section 20(3).
The motive for which the act was committed, the context in which it was done, the legal and factual nature of the act, the objective and objectiveness and the relationship between the act and the political objective, I submit that all those criteria's are met in the documents before you, except to say of course there was no order.
It is my submission that you are dealing with a person who in spite of his performance before you, ought to be seriously looked into and granted you know, amnesty - especially in the light of the evidence relating to what the prevailing circumstances during that period and the consequences that led, circumstances that led to the kidnapping and ultimate death of the deceased.
I will stop there Mr Chairman and members, and if there is anything else you would like me to ...
CHAIRPERSON: What about the evidence he gave before us?
MR MKANUNU: Yes, I am asking you to ignore that evidence.
CHAIRPERSON: He gave it before us under oath, isn't that of great importance?
MR MKANUNU: Yes, Mr Chairman, in the same manner as the completed application form, together with the affidavit which are both on oath, you are faced here with a situation where the applicant made an application under oath and submitted a statement on affidavit under oath, and came here to testify under oath.
You've got, in my submission, you have to take into account all those factors, balance them, because in my view, they all carry weight and it is my submission that in the light of the circumstances, you should find in his favour, in the light of the other factors as against the evidence which he gave under oath yesterday. Thank you.
CHAIRPERSON: Should we find he has made a full and frank disclosure?
MR MKANUNU: It is my submission that you should find that he has made some disclosure. Whether it is a full disclosure, I am saying Mr Chairman, the full disclosure is in the documents preceding his evidence, which are also under oath. In the application he made a full disclosure, in the affidavit he made a full disclosure and it is only in his oral evidence, that you know, there is doubt as to whether he made a full disclosure.
It is my submission that the application complies with the requirements of the Act and that the acts or the offences committed, fell within a political objective and in a political set up. Whether he has made a full and final disclosure, it is my submission that he has made part of that disclosure and I am asking that to establish really that full disclosure, it is contained in the documents which are filed of record, not necessarily in his oral evidence.
CHAIRPERSON: But you see one of the problems I have is in his application he says on page 2, paragraph 9.4 the victim conducted acts of terrorism within the community as well as criminal acts. He was kidnapped. Not I kidnapped him.
Even there he is not coming forward completely frankly, is he?
MR MKANUNU: Well, I suppose in my view he is. He is part of the group that kidnapped him, because in his affidavit I think, he sets out that position clearer.
ADV POTGIETER: Yes, in paragraph 13.1.
ADV DE JAGER: Aren't we having the same problem that people don't easily understand the doctrine of common purpose. He did nothing, but he associated him with the persons who abducted, he went with them, he persuaded the deceased after he had been dragged out of the house, after he had been forcefully kidnapped, he persuaded him to sort of accept your kidnap, your being kidnapped and well, cooperate now.
Wouldn't that be a factor or the reason why he is not admitting doing the act himself and he can't understand that he is being found guilty because he had associated himself with the real kidnappers?
MR MKANUNU: I agree with that view entirely.
CHAIRPERSON: Isn't one of the problems adopting that, that one has then to ignore mainly most of the evidence led?
MR MKANUNU: You mean the oral evidence Mr Chairman?
CHAIRPERSON: The evidence led at the trial? He didn't just go along with them.
MR MKANUNU: I am not sure whether you have the benefit of the entire typed transcript of just the judgment. I have seen the documents, it is only the judgment.
CHAIRPERSON: Yes.
MR MKANUNU: Well, it is subject to the opinion of the Presiding Judge.
CHAIRPERSON: It is not an opinion, he is stating fact. He is not expressing opinions. He is saying what the witness said.
MR MKANUNU: Mr Chairman, I am not trying to criticise that Judge, I am merely saying we didn't have the benefit of looking at the entire transcript of the record.
CHAIRPERSON: Well, we can get that. What he says is, for example at page 10, this is dealing with the evidence of Mangwana Sweyisele, accused 1 held him by the one wrist and accused 2 by the others. The deceased was protesting and managed to escape from the grip of accused 1 and 2.
This is the Judge giving a summary of the evidence, when they ran to Mrs Jaka's house. He deals with the evidence of Evelyn Jaka, of this man Jam who came. Zweliswa Veronica Mangwana testified that accused 1 and 2 seized the deceased by his wrists and took him away by force.
At the vacant land his hands were tied with the rope. There are all these things, passage after passage after passage, none of which the applicant has told us about. He denied them all. What do we do, he appears to be lying to us and he hasn't disclosed them in his application or in his affidavit, has he?
MR MKANUNU: Mr Chairman, I think number one, one has to take into account the state of mind and the type of applicant I have set out earlier on and secondly, having that in mind, what comes out clearly even in the judgment is that it was an activity involving a large number of people.
He was part of that group.
CHAIRPERSON: Yes, he was the Chairman.
MR MKANUNU: And if you recall, even yesterday, he could not recall whether Mangwana was present or not, for instance when they went to fetch the deceased.
This incident happened about six years ago and he has been in jail. As to his memory, I am not going to say, to vouch whether his memory is bad or his memory is good, but it has got clearly ...
CHAIRPERSON: Well, his memory appeared to cause you great surprise yesterday.
MR MKANUNU: I agree with you.
CHAIRPERSON: That is a problem we have to face, isn't it?
MR MKANUNU: I agree with you Mr Chairman, in the sense that the memory caused me great problems yesterday, I agree. This affidavit which is submitted here, was completed and submitted hardly a month and ...
CHAIRPERSON: Less than two weeks ago.
MR MKANUNU: Correct, and you are dealing with that kind of person. It just shows what kind of mentality the applicant is.
CHAIRPERSON: Yes, that is the problem, that kind of mentality. Now the Act says he must make a full disclosure. His mentality seems to be that he is not prepared to do so.
MR MKANUNU: I am not sure Mr Chairman, that that should be the approach. In my view the approach should be that he was part of an activity - as to what he actually did collectively together with others, should be taken into account.
He admitted for instance amongst these issues, that he presided over a meeting. He admitted that he even went to pick up the deceased somewhere when he was taken away by somebody else.
CHAIRPERSON: Yes, he was rescuing him the others.
MR MKANUNU: Correct.
CHAIRPERSON: A completely different version from that led at the trial.
MR MKANUNU: There were isolated incidents in which he came up with some version of some sort.
CHAIRPERSON: Which appear to be untrue.
MR MKANUNU: Well, whether they were untrue or not, in my submission they were reflecting on the past and on what happened.
ADV POTGIETER: Mr Mkanunu, I think perhaps just to pick up on the issue that my colleague, Adv De Jager has raised, I am not sure and the Chairperson has been debating with you, I am not sure how we decide the application before us, what material. We only have the version of the applicant, nobody else, neither the family, nor the evidence leader has placed any evidence before us.
We have a judgment where certain conclusions were made, we are not sure what the effect of that should be. I, speaking for myself, taking into account the testimony that was placed before us and then looking at that testimony and bearing in mind, I think the point that you made that the applicant was fixed somehow on the murder, perhaps understandably so for a person in his position, he was talking about the murder predominantly. He hardly dealt with the kidnapping, but even if one takes his testimony as it stands, the point he was trying to emphasise was, he didn't himself apply any force to the deceased.
Then of course the question is how do we decide whether the conduct in question is amenable to amnesty, whether the applicant himself must tell us it is a crime or whether we must look at the factual circumstances and say look, does the testimony before us disclose a crime or not.
That is where the question of common purpose come into it. Those are a lot of the issues that still seem to me to be not settled and not clear in this matter. In any case, I am just raising it just to place some of my own very, very preliminary views.
MR MKANUNU: Well, just to - not to respond, just to add on that, that is why I said you know, if you look at all the documents and look at the situation which was prevailing at that moment, especially taking into account, not only the applicant's evidence, but the evidence of Ndzotoyi, it was a scenario in which you know, clearly in my submission, the facts come out clearly that it was a political activity, that that was the issue.
Having established that political activity, the next issue is the participation of the applicant himself and thereafter you know, whether this act, that participation falls within the ambit of the Act, and in my view with those factors in mind, you should be able to arrive at a fair and objective ...
ADV POTGIETER: You mean for example if, I am sorry, I just want to finish it off, for example if the applicant had gone into the witness box and said look, I confirm my application and I confirm the affidavit and he stopped?
MR MKANUNU: Yes.
CHAIRPERSON: The problem Mr Potgieter has now raised, which is another one, is if one accepts the applicant's version as given in his evidence, was there any kidnapping?
Is there anything to grant amnesty in respect of? His version is they go to a house where the deceased is sitting perfectly peacefully. Somebody drags him out of the house into the yard, but once he is in the yard, the applicant talks to him, he walks along with no protest with the applicant, he goes to the hall with the applicant, he sits next to the applicant, is there any kidnapping there?
MR MKANUNU: Mr Chairman, there was kidnapping on that evidence, because if you take into account that the applicant was part of that crowd, part of that crowd that went into the house, even if he did not go himself personally as he says, and the person was forcibly removed from the house.
CHAIRPERSON: Is that kidnapping to drag him outside to talk to him, where he talks to a friend of his?
MR MKANUNU: Well, it was seen in that context.
ADV DE JAGER: On the other hand Mr Ndzotoyi - I hope I am pronouncing the name correctly - gave evidence and said the climate was such that no person could ignore a call to come and come to a meeting and to explain.
That is not physical kidnapping, but the intimidation was such that if you are called, you rather come or else. I don't know whether that would be kidnapping, but it is acting against one's will, you don't go voluntarily, but you go because of the threats in the whole atmosphere?
CHAIRPERSON: You have concluded have you?
MR MKANUNU: Yes, I have.
MR NYOKA: Thank you Mr Chairman. Mr Chairman, I have listened to the debate with interest of Mr Mkanunu. The issue here broadly is not only about what the applicant says but about what the institution of democracy including the TRC is about. It has to be promoted and protected at all times.
Once perpetrators volunteer to come forward before the TRC, whether they are white or black, they must say everything and nothing short of everything. Once it is a white perpetrator and he is subject to attack a black perpetrator who does not say everything, he must also be subject to attack because the institution is that of a non-racial society, finished and "klaar", in local language.
If a perpetrator applicant like Mr Potye comes forward it must be clear that all that he says complies with the requirements of this democratic institution the TRC, nothing short of that. Maybe the applicant misunderstood an essential component of the TRC process, that if he has to say something, that something that he has to say has to comply with the requirements of the Act.
If they do not, then he cannot get amnesty. One wonders why he could come forward and apply for kidnapping, but deny that very kidnapping under oath. What is the application all about. To be sarcastic one could easily have said that he should have gone to a church minister to apologise, not to the TRC Amnesty Committee.
If we have to lie to ourselves, we are worse than a country which has no TRC process. If we have a TRC process, let's abide strictly by its regulations without fear, favour or prejudice.
Section 21 of the TRC Act states three requirements that an applicant has to comply with the requirements of the Act, it is a (indistinct) requirement, the second one is that the act, omission or offence to which the application relates, is an act associated with a political objective, committed in the cause of conflicts of the past, and thirdly the applicant has made a full disclosure of all relevant facts.
Section 22 elaborates what is meant by the Act. It defines an act associated with a political objective as "any act or omission which constituted an offence or delict associated with a political objective committed between 1 March 1960 and the cut off date."
It is submitted that an applicant has to comply with all three requirements, not one of them or two, but all three requirements. It is submitted therefore that the applicant has satisfied only the first easy requirement of complying with the requirement of the Act in the form of the application form.
He has failed with the two essential requirements of an act, omission associated with a political objective and the full disclosure requirements.
The reasons being with regard firstly to an act associated with a political objective, on his own version before the Committee, the applicant did not admit any of the essential elements of kidnapping or abduction, a crime or offence envisaged by the Act in the circumstances as being an act associated with a political objective.
In fact the applicant who in his application applied for amnesty for kidnapping, refutes and rejects the conviction for kidnapping, which is the sole basis for his application, or any other offence which the law provides. It is not and has never been and will never be a criminal offence or a civil offence in this country, to go and fetch a person for any gathering and to voluntarily walk with such a person to a gathering.
If the applicant was wrongly convicted of kidnapping, one wonders why then he did not advance this defence as he stated yesterday, which could on its own have been reasonably, possibly true and secondly, why did he not appeal against the decision as the TRC amnesty forum is not there to help disgruntled convicted and sentenced persons, but to help those who admit their offences and confessing their roles as fully as possible in the offences for which they were convicted and sentenced.
In other words, the act or omission was never envisaged by Parliament to be an act or omission in a vacuum or one deeply dipped in intense emotional circumstances of the time, but one and only one constituting either a crime or a delict which crime and delict was one associated with a political objective.
Exactly what is the meaning of kidnapping. It is the unlawful and intentional depriving someone of one's freedom of movement against one will. Or it may be a fraudulent enticement to a person to come to a particular place.
In this matter there was neither an unlawful and intentional depriving of the deceased's freedom of movement, nor a fraudulent enticement to go to a meeting when the deceased was in the presence of the applicant.
There can therefore not be even a suggestion of a common purpose and when it became clear at the meeting that the deceased's freedom of movement was to be violated, the applicant had dissociated himself with it by words and by his deeds of leaving the meeting to go and sleep. I have noted Mr Ndzotoyi's comments that at those times in the townships it was so bad that when a group of people visited any person singing, that would instantly be deemed as abduction or kidnapping.
However, we are not guided by the ordinary layman's definition of abduction or kidnapping, but by decade's long legal and criminal or civil definition of kidnapping, which has no apartheid era definition or democratic era definition. For the purposes of the law in this matter, kidnapping or any other crime or delict has to be an offence or delict describable as such which has to be associated with a political objective.
The next question is, was this act of the applicant which is not an act as required by the law either a criminal offence or a delictual offence associated with a political objective.
In favour of the applicant, one could say broadly speaking the "act" was associated with a political objective in that the fact that structures under Pebco organisation were fulfilling, seen to be fulfilling a State functions, was a decisive sign of an (indistinct) defeat of the apartheid structure by liberation forces, however, narrowly and legally speaking, the meeting was a civic meeting to discuss a civic matter.
Crime in the townships and it could be argued that such an action was a civil function turned criminal by the death of the deceased, and not a political function in pursuance of a political objective, narrowly speaking.
As there were no political organisations like Pebco or UDF or representatives of such at the fatal meeting, to change into a political meeting.
Thirdly no political motive was demonstrated by the applicant even his previous dealing with the deceased as the applicant himself firstly said he did not believe that the deceased was an askari and he did not even know the circumstances under which the youth activist was shot and killed by the deceased, had any political connections.
To put it simply, it did not mean nor will it ever mean that when a politician was killed or is killed in the future, such killing had or will have anything to do with politics, without regard to the particular circumstances of that particular killing.
Furthermore it is suggested that it could not have been the deceased who shot and killed the youth activist, judging (a) by the poor lighting of only moonlight, (b) the distance between the applicant and the deceased, (c) the hedge separating them which was the height of the applicant. How he saw beyond the hedge which was of his same height, is also a source of a separate debate.
With regard finally to the requirement of full disclosure, disclosure means to say everything. The term full in front of disclosure was meant by the legislator ex abundanti cautela out of abundant caution to an applicant who say please say everything, you know disclose on its own means say everything, but full disclosure means everything.
This requirement is not fulfilled, is not only fulfilled when an applicant fails to testify about every relevant fact of an act, but also when he lies about what he says.
It is submitted that the applicant was not a reliable and truthful witness in that inter alia not saying everything. Firstly if the people at the meeting were angry and he had tried to stop them from harming the deceased, why then did he not go to the Police or senior UDF members to try to warn them of what could happen to his former acquaintance rather than going home to sleep?
Two, he told the Committee that he had told the Court that all he said was that he had Chaired the meeting, but within seconds he retracted that statement when a question of clarification was asked by the Committee Chairperson. In court the applicant said he was a mere spectator during the incident and thereafter left the meeting to go to a gymnasium.
During the amnesty hearing he admitted participating and going to sleep. It is understood that accused persons lied in court during the struggle cases of the apartheid era, but this version that he advanced today could easily have been stated, advanced during that criminal trial as it indicated innocence on its own and not guilt in terms of the law. Why did he not advance it then?
The applicant was a person who minimised or played down his own role, e.g. he said the deceased was dragged from inside the house, but as soon as he emerged outside and he was with him, the deceased walked calmly. Also at the meeting, he alone was a peacemaker.
Yet the two State witnesses during his trail testified that he had turned down the request that the deceased be released or taken to the Police.
Finally the mother of the deceased has no problem with the fact that during the apartheid era the State Security organs like Police, SADF and askaris and informers were (indistinct) to a new democratic order and committed gross human rights violations. She has no problem with the fact that the communities through their civic and political structures took over certain policing functions and dealt with violators of people's rights in the best way they deemed fit.
What however the mother of the deceased has problems with are that (a) if her son was either an askari or a political troublemaker, why then was he given a comrades funeral by activists on his funeral, (b) if the applicants were convicted of kidnapping and not murder and now applies for amnesty for kidnapping, why then does his statement not tally with the offence of kidnapping, and (c) and if her son had committed any of the offences laid, why was he not taken to the Police after being fetched for the laying of criminal charges, because it had been reported that Police were being told about this? Why was he not taken straight to the Police, especially regarding the incident that happened the previous night?
Why was her son not given an opportunity to respond to the criminal allegations at the meeting as it seemed that he had been presumed guilty even before he arrived at the meeting?
In closing the negotiators of our constitutional dispensation or founding fathers of our constitution and the parliament of our country, had in mind when discussing and agreeing on the new TRC legal institution a scenario where, if one committed an offence, criminally or civilly, whether he or she was convicted of it or not, or sued or about to be sued of it, that such a person should be indemnified of prosecution or being sued if he or she told the whole truth of the matter that was politically orientated.
If a person's act or omission did not constitute a criminal or civil offence, such a person was excluded from indemnification, or whilst his act or omission was such a criminal or civil offence, but was not politically orientated, then too such a person was similarly excluded.
Such an excluded person has to sit out his sentence or face being sued or merely just apologise to the victims, without obtaining anything in return like freedom. The acceptance of an apology would depend on the nature of the statement on its own.
I thank you.
CHAIRPERSON: Mr Nyoka, I notice that you seem to have been reading.
MR NYOKA: Yes.
CHAIRPERSON: Can you let us have a copy?
MR NYOKA: Okay, it is just in my handwriting, I did it between ten and twelve in midnight.
CHAIRPERSON: What is your handwriting like?
MR NYOKA: It is better than average.
CHAIRPERSON: Can we have it photostatted?
MR NYOKA: Okay.
CHAIRPERSON: Thank you.
ADV POTGIETER: Sorry Mr Nyoka, is there any doubt that the deceased was kidnapped?
MR NYOKA: Legally or ...
ADV POTGIETER: Yes.
MR NYOKA: Legally?
ADV POTGIETER: Yes?
MR NYOKA: No, legally the deceased was not kidnapped.
ADV POTGIETER: He was dragged from the house on the testimony before us, he was tied, his hands were tied at one stage. Are you saying that under those circumstances it does not fall within the definition of kidnapping as you had given it to us, unlawfully depriving a person of his freedom?
MR NYOKA: That is not what the applicant testified about. We are not having here applicants who came forward and said we dragged him out of the house and we tied him. We are having only one applicant and we must deal with that application as it comes.
CHAIRPERSON: But we have before us the judgment in the criminal trial, that is part of the record before us, isn't it?
MR NYOKA: Yes.
CHAIRPERSON: And that sets out a summary of the evidence given by the witness.
If necessary we could obtain, or we could direct someone to obtain a copy of the record to verify that the judgment correctly reflects the evidence, couldn't we.
MR NYOKA: Yes.
CHAIRPERSON: Now, doesn't that judgment make it abundantly clear that the deceased was kidnapped?
MR NYOKA: I didn't want to refer to the judgment, I wanted to refer to what the applicant came and say to us. The mother must accept that the applicant is saying I did kidnap your son, but that is not what he is saying.
CHAIRPERSON: No.
MR NYOKA: So I am not referring to what others did or what the judgment say, I am looking at the application as it comes. What is the applicant saying consistent with his application.
ADV POTGIETER: And what is the weight of the papers, the affidavit and the application form which makes it quite clear that he participated?
CHAIRPERSON: And that he was kidnapped, the application says he was kidnapped?
MR NYOKA: The application does not to me say that he was kidnapped, it was said that the deceased was, as it was put, seized.
CHAIRPERSON: No, the application uses the word kidnapped. You are referring to the affidavit.
MR NYOKA: Yes.
CHAIRPERSON: The application itself in the passage that I read earlier, paragraph 9(a)(iv) says he was kidnapped, taken to a public open meeting and later to a public meeting held in a church.
MR NYOKA: The application says he was kidnapped but he says that he did not kidnap him, so which is which?
CHAIRPERSON: That is the problem.
MR NYOKA: Unless the applicant, we won't oppose the application, it must be clear if the applicant says that I kidnapped your son, we will accept that, we will accept the apology, but that is not what he is saying so I do not know exactly what the drafting was about, about this application. It says kidnap, but he denies that.
ADV DE JAGER: But even if he was kidnapped, let's assume the facts of the judgment is correct, he was kidnapped, but the evidence is I didn't kidnap him. Other people might have kidnapped him, or the evidence is other people didn't kidnap him either, but the position is that he, himself, dissociate him as an offender in this offence.
So, as the Chairman put it even if the Court found and all the papers point to it that it was a kidnapping, he was an innocent bystander and not a kidnapper according to his evidence. Isn't that the position?
MR NYOKA: Yes, we will have three versions. The Court saying that he kidnapped, him saying in the court that he was a mere bystander but today saying that he went to fetch, there are three versions.
The next question that is crucial is under those circumstances, was there a full disclosure in the light of three versions?
ADV DE JAGER: As far as the affidavits are concerned, are these affidavits in any different position than other affidavits being given to the Amnesty Committee and not being tested by cross-examination?
MR NYOKA: What is your question, which affidavits?
ADV DE JAGER: I put it to you that we have had the position that they hand in affidavits, but then the person making the affidavit is not available for cross-examination. Then we say the evidential value of that evidence, it doesn't carry much weight, because he didn't go through the test of cross-examination.
Now we had two affidavits here, the application and the other affidavit, but the moment he gave oral evidence and was examined about the affidavits, he distanced himself from the affidavits. Which should carry more weight, his oral evidence or his affidavits?
MR NYOKA: Firstly, it would not be the problem of the victim's family that such a scenario arises when it does arise, secondly, one will question why if the affidavit was sufficient, why a person will go further and testify orally and thirdly, in my mind once a person testifies orally, he or she is supplementing what he is saying in his application, because what he said really orally, was not contained in the affidavit.
The affidavit was sketchy, so he elaborated further. What he said, really carries more weight than the affidavit.
CHAIRPERSON: When he says as he did when questioned by his own Attorney that he didn't mean to say seized in the affidavit, must we accept his evidence before us and say although the word seized was used in the affidavit, on the applicant's evidence, it doesn't mean seized?
You will recollect he was asked that and he said no, I meant we just went there and fetched him.
MR NYOKA: That is what I have argued. He should never say that by seizure I understand the word to mean taking by force and he denied that the deceased was taken by force.
Maybe that has to do with his education, (indistinct) of understanding, but I think the question of speaking the whole truth has nothing to do with academic qualifications, you just speak the truth whether you've got standard A or not, simply.
ADV POTGIETER: The point is Mr Nyoka, when we have to assess this application, when we have to look at this and we have to decide, it is one thing what an applicant says and you have made the submission to us that an applicant should as part of full disclosure, admit all of the elements of the offence, it is like a plea of guilty you say in a criminal trial, I should imagine.
But really, isn't our duty one that is not altogether identical with that in a criminal trial. We know the criminal tribunal, we are sitting under completely different circumstances. Don't we have to look at all the material that is before us and then ask ourselves whether taken all of that into account, what the applicant had said, what he had denied, whether there is still a crime or a delict disclosed, and then to decide the matter on the strength of that.
MR NYOKA: Thank you sir. Mr Chairperson, when we came here, we didn't come here to oppose the application, but once he opened his mouth and he denied what he said he was applying for amnesty for, we had a moral and a legal duty to oppose the application.
We have no interest how you decide it, but what I can say about your question particularly is that the term amnesty means what you give a person amnesty for, for an offence. Not for anything but for an offence, a legal offence. Amnesty and an offence go hand in hand, they are co-relative.
It is an amnesty application for an offence and a legal offence. If it was something more than that, we will need also then something more than a TRC institution, maybe something like a church organisation but it is up to you to take all those things into consideration. We have stated our point, we object to him getting amnesty, it is up to you how to decide, but once you talk about amnesty, you talk about an offence.
Someone must say I did, I committed an offence or an omission which is a legal offence or a delictual offence.
ADV POTGIETER: Yes, my question, my difficulty is just directed at that last section. I hear all of your other submissions, I have noted them. The question is just when a poorly educated person comes before us, and it appears that he is clearly under the impression that in order to be found guilty of kidnapping, you have to physically participate in the act of compelling the person, dragging him from the house for example, but isn't the point that he could be guilty of kidnapping on the basis of association for example, the common purpose thing that was raised earlier.
Isn't that the sort of approach that we have to adopt in spite of what the opinion of the applicant is, whether he was rightly convicted by the trial Court at that stage of kidnapping or not, mustn't we look at the matter objectively and say well, in spite of what he says, it is quite clear that he committed the offence of kidnapping on the general principles of association of common purpose, even if he hadn't touched the deceased?
That is the only point I was trying to raise.
MR NYOKA: Yes, we are not imposing upon you how to decide the matter, but what I can say is that we will understand quite easily if the applicant came on his own and was told that he must apply for amnesty. With due respect, there is no bad reflection on Mr Mkanunu, but he had a lawyer, he ought to have been told that on what you are saying, you are wasting your time in applying for amnesty.
This process is not to make it convenient for people who had committed offences that do not fall strictly within the requirements of the Act. That is what I am saying, but we are not imposing upon you how to decide it, decide it in whatever way, but we are saying that there was no common purpose and he has not complied with the requirements of the Act.
We are saying that in the interest of justice and fairness.
ADV POTGIETER: Thank you. Thank you Mr Nyoka very much, I followed your submissions.
CHAIRPERSON: One of the problems is this avoidance on the applicant's version of common purpose. His statement that had he known the man was going to refuse to come, he would have persuaded people to go back to the meeting and told them that he had resisted.
He had no intention of dragging the man to the meeting. He went beyond merely not saying anything, in his evidence he clearly thought to give the impression that he had no common purpose with what people were doing, hadn't he?
MR NYOKA: Yes, he did Mr Chairman. I mean he indicated that there was no common purpose with any person and unless he can be recalled to testify to that, really there was nothing and there was not even an indication that people were singing when they went there.
CHAIRPERSON: There was evidence that they were singing, but there was no evidence that they were toyi-toying as the senior witness spoke about later. He said when a crowd comes toyi-toying, you follow them. But in this case they were singing freedom songs.
There was that evidence.
MR NYOKA: Any further questions or comments?
CHAIRPERSON: Mr Mapoma?
MR MAPOMA IN ARGUMENT: Thank you sir. Chairperson, I just want to draw the attention of the Committee to a few issues. I want firstly to deal with the act of kidnapping.
CHAIRPERSON: Have you also got this written out?
MR MAPOMA: No sir. Chairperson, it is my submission that judging the evidence as it is, it appears that the act of kidnapping did take place on that day.
In fact the applicant in his application, in evidence says he has come to apply for amnesty because he was present as one of the people who fetched the deceased from the place where they fetched him.
Now the question arises ...
CHAIRPERSON: Where is this in his application?
MR MAPOMA: He said it under oath Chairperson, when he was cross-examined.
CHAIRPERSON: In his evidence?
MR MAPOMA: Yes, in his evidence. He was asked the question. Then arises the question, under which circumstances was the deceased fetched and it is my submission Mr Chairperson, that the circumstances were such that the deceased was bound to go, his freedom of movement was deprived altogether.
It will be remembered Chairperson, that he said that they went there as a group singing freedom songs and I want to put that into proper context Chairperson. Singing of freedom songs by a group of persons, that amounts to a toy-toyi Chairperson.
In fact, as it was the people went there toyi-toying to his place to come and fetch him. He had no option but to go and the applicant says he was part of those people. In it Chairperson, it would appear that he associated himself with the action that was taking place there. That of toyi-toying and going to fetch the deceased.
CHAIRPERSON: What regard do we have to the judgment in this regard? Is it part of the papers before us where the Judge sets out the evidence of various witnesses as to how the deceased came to be taken from this house?
MR MAPOMA: Yes sir, I submit sir that the judgment itself needs to be taken into account, but sir, I also want to venture to say that it may be dangerous to judge full disclosure of the applicant on the basis of the judgment.
It would be dangerous sir to use the judgment as a barometer of testing actual facts. I would in this regard Chairperson, for instance draw the attention of the Committee to page 9 of the bundle, where in paragraph 20 of that judgment, the judgment reflects that the reason why the deceased was taken and the complaint against him was that he killed the applicant's son, which Chairperson is blatantly incorrect as the case is ...
CHAIRPERSON: Yes, but that is not a summary of evidence given before him. He is putting conclusions there isn't he?
I am talking about where the Judge says the witness, so and so, said this. The witness said this, the witness, so and so said that. It is your function as I understand it, to put the evidence before us on which we can come to the proper conclusions.
If this is wrong, why has the record of the proceedings not been put before us?
MR MAPOMA: Sir, it will be appreciated that all these problems now which would call upon us to call those witnesses, arose at the public hearing now otherwise as it was before, the application as it was, together with the affidavit as it was, were not that much contradictory to the judgment itself.
It only came out at this hearing. If Chairperson would - the circumstances would force it, then we may be compelled to subpoena those witnesses who gave evidence in court.
CHAIRPERSON: Was there a pre-trial hearing?
MR MAPOMA: No sir, we did not have a pre-trial hearing.
CHAIRPERSON: Why not, I thought that was the practise?
MR MAPOMA: Yes, that was the practise, but unfortunately the circumstances as they were, Mr Mkanunu arrived when we were about to start, unfortunately.
CHAIRPERSON: But you could have made contact with him beforehand and asked him whether he was prepared to admit the correctness of the transcript of the judgment and what was set out, matters of that nature should be settled at pre-trial hearings so time is not wasted and Attorneys are not put in an embarrassing position by not having settled it beforehand. It wasn't done here, you weren't asked were you?
ADV POTGIETER: Is your position that on what was placed before the Commission in terms of the papers, there didn't appear to be this kind of potential difficulty arising in regard to testimony given at the trial and possible testimony at the hearing itself?
MR MAPOMA: Absolutely sir, that is exactly what I am saying. As it were, we were labouring under the assumption that the applicant is here to confirm what is contained in the affidavit and what is contained in the application.
That is all that I wanted to make submission.
CHAIRPERSON: Do you want to say anything further Mr Mkanunu?
MR MKANUNU: Mr Chairman, save to say that you know, I have heard certain submissions that were made in particular by the representative of the family, and you are here not as people who are coming from another world, who have just, you know, landed on earth and having landed on earth, you look - you have that kind of scenario.
The Act was provided you know that you should look into the various aspects and establish and satisfy yourself that amongst other things I think, the primary factor is that there was an offence committed and secondly it was, there as a political objective.
CHAIRPERSON: And full disclosure I regret to say. It appears in the heading of the Act, it appears in Section 21(c), it is a requirement.
MR MKANUNU: I accept that that is a requirement, but I am saying you are not here to interpret the Act in a narrow way, but here to look at all the factors and broaden your scope because this was intended to you know, to give amnesty to people who had committed offences which were related to political activity and if you look at the totality of the documents before you, those documents then you know, bear testimony to that.
I understand perhaps I personally would have no difficulty about (c), because I think I dealt with (c), the required full disclosure and so forth in the sense that you know, the documents before you had made a full disclosure and the question of conflict only arose when the applicant testified and was subjected to cross-examination.
One would go back to the same scenario where one would say had the applicant merely said I confirm all this, I am not answering any questions, would you have said he has not made a full disclosure?
CHAIRPERSON: Yes, he is not entitled to say I am not answering any questions.
MR MKANUNU: But that would not impact on full disclosure, that is the point I am making Mr Chairman. In any event I am saying you should look at it broadly and arrive at a decision that is fair to all and in keeping with you know the mission you are charged with.
CHAIRPERSON: Very well, we will take time to consider our decision. I think also it would be only fair Mr Mkanunu to give you also a copy, we are getting a copy of the submissions and to say that if we then what is today, Tuesday, by Friday you wish to make any certain submissions arising from that, you may do so if you let us have them in writing by Friday.
MR MKANUNU: Thank you Chairperson.
CHAIRPERSON: We will now take a short adjournment while we prepare to deal with the next matter.
COMMITTEE ADJOURNS
