MR NDOU: I now call Mditsheni Johannes Makananise.
NDITSHENI JOHANNES MAKANANISE: (sworn states)
MR NDOU: Thank you Mr Chairman.
EXAMINATION BY MR NDOU: Mr Makananise, you made an application for amnesty. You've heard Mr Leshaba giving evidence. Now what I would like you to explain to the Committee is the role that you played during the killing of this person.
CHAIRPERSON: Mr Makananise, you heard of those meetings, were you at the second meeting at the bus stop?
MR MAKANANISE: What happened is that ...(intervention)
CHAIRPERSON: No, I'm asking you if you were at that meeting or not.
MR MAKANANISE: Yes, I was.
CHAIRPERSON: I understand from that meeting, the deceased ran away and he was burning. Correct?
MR MAKANANISE: Yes.
CHAIRPERSON: What did you do in respect of that?
MR MAKANANISE: I hit him with a stick.
CHAIRPERSON: While he was running away?
MR MAKANANISE: Yes.
CHAIRPERSON: And while he was burning?
MR MAKANANISE: No.
CHAIRPERSON: And then we were told that at some stage he was pelted with stones as a result of which he fell on the ground. Did you throw stones at him?
MR MAKANANISE: I didn't throw stones.
CHAIRPERSON: And now when he was on the ground, what did you do, if anything?
MR MAKANANISE: I was chanting freedom songs and I was quite far.
JUDGE DE JAGER: Did you see the previous witness trying to force him to drink petrol?
MR MAKANANISE: Yes, I saw him.
JUDGE DE JAGER: And that tyres were put on him and that he'd been hooked by a wire, did you see all those details?
MR MAKANANISE: I saw the tyres only, I didn't see the wire.
JUDGE DE JAGER: Could you hear him being questioned?
MR MAKANANISE: Yes, I could hear that.
JUDGE DE JAGER: What did he say, on being questioned?
MR MAKANANISE: He was asked as to who the co-witchcraft practising people were.
JUDGE DE JAGER: Ja.
CHAIRPERSON: Mr Ndou, you are going to have to explain something here to me. The affidavit under the hand of Makananise, seems to me the one that should have been under the hand of the first applicant. If you look at paragraphs 20, 21, 22, 23, 24, 25, 26, that's the evidence that the first applicant gave. How - this witness have signed an affidavit like that?
MR NDOU: I think I can explain that. What happened was, you're consulting with people coming from the same incident and explaining these things and they all agree as to that's exactly what happened and each one of them is telling the same story and at the end of the day they tell you what each one of them did.
CHAIRPERSON: On page 40(d), it's exactly what the personal contribution to the death of the deceased was of the first applicant. He's the one that says look, in my affidavit delete the words: "And I doused him with petrol". No, let's just get that right.
"As the deceased lay down, one Tyson Raphulu stabbed him with a sword. Matala said he could donate vehicle tyres. I then took a small pipe and tried to cause the deceased to drink it, but he would not."
Now that is missing in the original affidavit and it's obvious to me, unless there's one very good explanation why it's like that, these affidavits were swopped and the applicants cannot be blamed for that.
MR NDOU: What I see, the problem there, that paragraph because he was also explaining ...(indistinct - mike not on)
INTERPRETER: The speaker's mike is not on. The mike is not on.
CHAIRPERSON: Alright, you don't have to translate this. Carry on. You say you have no more questions.
MR NDOU: You've explained to the Committee that all you did was to hit the deceased with a stick and that you ...(indistinct) is there anything else that you did?
MR MAKANANISE: Nothing else.
NO FURTHER QUESTIONS BY MR NDOU
CHAIRPERSON: When you hit the deceased with a stick, did you do so according to the decision to kill him?
MR MAKANANISE: Well, that was in agreement with the decision taken. Yes, to kill him.
CHAIRPERSON: Mr van Rensburg.
MR VAN RENSBURG: Thank you Mr Chairperson.
CROSS-EXAMINATION BY MR VAN RENSBURG: So you did not force the deceased to drink petrol as stated in paragraph 23 of your affidavit, is that correct?
MR MAKANANISE: No, I didn't force the deceased to drink petrol.
MR VAN RENSBURG: You also didn't douse him with petrol as set out in paragraph 24 of your affidavit, is that correct?
MR MAKANANISE: Yes, it is true, I didn't douse him with petrol.
MR VAN RENSBURG: At the criminal trial there was evidence led by a certain Elvis and Angus that you in fact tried to put the tyre back on the deceased when the tyre slipped off, can you remember that?
CHAIRPERSON: Can you remember that was the evidence?
MR MAKANANISE: Could you just repeat the question?
MR VAN RENSBURG: Yes. At the criminal trial there was evidence led by these two witnesses, Elvis and Angus that you in fact tried to put the tyre back onto the deceased when the tyre slipped off. What I want to know is, can you remember that those witnesses testified to that effect at the criminal trial?
MR MAKANANISE: No, it is not true. I dispute that.
MR VAN RENSBURG: Yes, perhaps you don't understand me. I'm not asking you if that is in fact what happened. I just want to know if you can remember that they testified to that effect at the criminal trial.
MR MAKANANISE: I can remember.
MR VAN RENSBURG: But they did not speak the truth, is what you're saying, is that correct?
MR MAKANANISE: No, they did not speak the truth.
MR VAN RENSBURG: Okay. And they also testified that you were the one, or one of the persons pouring petrol on the deceased. Did they also lie when they testified that?
MR MAKANANISE: Yes, they were lying about that, it's not true.
MR VAN RENSBURG: Okay. And can you then just explain to us, in view of this serious evidence about your involvement, why did you decide not to give evidence at the criminal trial, to deny these allegations?
MR MAKANANISE: What happened, when I was arrested my legal representative then told us to close the case and as such, because I didn't have any legal knowledge, I just submitted, it was my first time to be arrested.
MR VAN RENSBURG: Are you now saying that that legal representative did not act in your best interest?
MR MAKANANISE: Well, it means that because he took what came from the State Witnesses and left my own version.
MR VAN RENSBURG: Would you try to venture any explanation why the legal representative did not act in your best interest?
MR NDOU: Chairperson, I've got a problem with this line of questioning. I have not heard of any evidence which suggests quite explicitly that the legal representative who acted for the applicant in the criminal trial, did not act in his best interests at that criminal trial then. It is my submission, Chairperson, that that question is very unfair to the applicant, or the applicant cannot be able ...(intervention)
CHAIRPERSON: Well, if the applicant is going to testify here that look he followed the advice of his legal representative, then that's the end of the matter.
MR NDOU: Yes, that is my position also.
CHAIRPERSON: Well, what are you saying, so the question can be put and the witness can be in a position to answer and if he says: "Look, I followed the advice of my legal representative in not testifying", then that's the end of the matter.
MR NDOU: Yes, but it is taken further to say that the legal representative did not act in his best interests. In fact that is what is being extracted from the applicant.
CHAIRPERSON: Ja. Maybe you must rephrase your question Mr van Rensburg, because I don't think it's acceptable to question legal representation and advice given to clients.
MR VAN RENSBURG: Yes of course. That is not what I'm trying to do, I'm trying to find out what the accused or the applicant's specific view on this issue is.
CHAIRPERSON: But does it matter? I mean you know and I know that when you appear, especially in a criminal court, client will come to you and look into your eyes and plead: "What must I do next, because that's why I employed you."
MR VAN RENSBURG: Yes, exactly, that is why you give him the best evidence in the circumstances.
CHAIRPERSON: No, I accept that, but if you, for example, or me, were to tell our client: "Look, I don't think it's in your best interest to testify", that may be correct or wrong advice, but nonetheless advice that's accepted and acted upon and I don't know if one can ask the receiver of such advice, why such advice was given.
MR VAN RENSBURG: Yes, but that is not what I'm asking him.
CHAIRPERSON: Well, let's hear the question again then.
MR VAN RENSBURG: Yes, it was following on the previous question. The previous question was, are you now of the opinion, taking all the facts into consideration, that that legal representative did not act in your best interest when he gave you such information? The answer was: "Yes."
CHAIRPERSON: Well, that is precisely the objection. You elicit a question, an answer from him that he obviously cannot answer. That question should be directed at the legal adviser.
MR VAN RENSBURG: Yes, but also there was no objection at the time to the question.
CHAIRPERSON: No, I accept that, but I mean I'm just trying to be fair here. Maybe the answer slipped in and inadvertently got onto record, but really, both of us would know that you can't expect the client to explain that.
JUDGE DE JAGER: And another thing, Mr van Rensburg, unfortunately it wouldn't assist us in interpreting the Act and the requirements of the Act as far as amnesty is concerned.
MR VAN RENSBURG: Yes. Perhaps I can be a bit clearer about my motive for asking these questions. Obviously my argument will be that the accused in the circumstances, did get the best legal advice and on account of the evidence which was led at the criminal trial which was obviously the truth, they received that evidence and in as far as that evidence that was led is now contrary to the disclosure made by this applicant, that should have a serious influence on his credibility, but as I say, that is possibly a question for argument and I will have no further questions to this specific applicant.
NO FURTHER QUESTIONS BY MR VAN RENSBURG
CHAIRPERSON: Thank you. Mr Mapoma.
MR MAPOMA: I have no questions, Chairperson, thank you.
NO QUESTIONS BY MR MAPOMA
MR NDOU: Nothing further Chair.
NO RE-EXAMINATION BY MR NDOU
CHAIRPERSON: No, no questions thank you. You're excused.
WITNESS EXCUSED
CHAIRPERSON: ...(indistinct - mike not on)
Mr Ndou, we're about concerned about the next applicant. In his primary document of application he indicates that he's done nothing at paragraph 9(a). He contradicts his affidavit which is, similarly to the others, I must emphasise, as far as I'm concerned a mess-up, but I'd like you to address us as to whether there is in fact an application now because of his statement in his primary document which says he did nothing to the deceased. Let us read exactly what he says there. He says:
"I address the meeting. It was agreed to kill these people. I did not participate for I was against it."
Now is there a proper application then? Can he get amnesty?
MR NDOU: Honourable Chair and Honourable Members, I accept, in fact what has not become very clear is that these forms, they were not filled in by a legally trained person who would have appreciated what was going at the time, they were filled by the Committee that was appointed by the prisoners at the time and these documents were taken to Cape Town and even at the stage when we consulted with them, these documents were not before us because there were no copies of the documents.
CHAIRPERSON: It's all very well giving us that history. The fact of the matter is that we're faced with this application today. The formality was that it's supposed to be completed at a particular time before a particular date indicating broadly, not in detail, what they apply for in terms of act, date, place, wherever. Here he says: "I did not commit any act or omission or offence. While it was agreed" and I assume it means agreed to kill the witches, "I did not participate for I was against it." So all he did was to address that meeting at which this decision was made and he opposed it. That's what is contained here.
JUDGE DE JAGER: So our problem is you could never argue that he had common purpose, but his own motive was: "I'm against it and I didn't participate."
CHAIRPERSON: He's not guilty of an offence and therefore he can't get amnesty. It's an important aspect and it's the future of this person that's at stake and maybe - I don't know how we overcome this.
MR NDOU: Thank you Honourable Chair. By virtue of the fact that this application, at the time when it was filled in, the applicant did not really appreciate, as can be seen even from the others, some of the aspects are being left out, but after a proper consultation and a proper explanation as to the purpose of this application, I think most of the people were now coming out and trying to explain exactly as to what has happened.
CHAIRPERSON: How do you reconcile what he's written there?
JUDGE DE JAGER: The trouble is, he's not a lay person. He was in fact a well-educated person.
CHAIRPERSON: The fact of the matter is, if he was guilty or if he is guilty, he tried to deny complicity here, isn't it?
MR NDOU: As I understand from his explanation now, he says the idea that he wanted to convey was that at the original meeting when this group of people was mentioned and the people were of the opinion that those people should all be killed, he was against that idea, but he agreed that this particular person had to be killed. It's just that he didn't come clearly on the application form.
CHAIRPERSON: But as valiant as your argument may be Mr Ndou, the problem is that in this application it states : "I address the meeting. It was agreed ..." whatever, "I did not participate, for I was", he did not participate in what, the killing? "For I was against it". That is my problem. He denies complicity. No matter what meeting he's talking about, he says: "I did not participate." Obviously "I did not participate in the commission of the crime for I was against it." Now whether he was against it in the first meeting or the second meeting doesn't matter. He says: "I did not participate because I was against it." How do we overcome that?
MR NDOU: May I reply, with the permission of the Honourable Committee, that I apply that that paragraph be amended at this stage if possible?
CHAIRPERSON: ... would suggest this, that we hear the evidence and we'll reserve judgment on it and we'll decide whether there's a proper application or not. If we decide there's not a proper application, then we'll refuse it. If we are able to say that there is a proper application, then we'll deal with it in the normal fashion.
MR NDOU: Thank you, Honourable Chair.
