CHAIRPERSON: You can call your next witness, we will deal with his evidence-in-chief.
MR SAMUELS: I call Lucky Richard Molahlehi, application number 7098/97 and it's on page 111 ...(indistinct)
CHAIRPERSON: Mr Molahlehi, what language would you like to use?
MR MOLAHLEHI: Lucky Molahlehi, that is my name.
CHAIRPERSON: What language would you like to use?
MR MOLAHLEHI: I'd use South Sesotho.
INTERPRETER: We are requesting a minute, Sir. The interpreters did not hear your question, Sir.
LUCKY RICHARD MOLAHLEHI: (sworn states)
CHAIRPERSON: Please be seated.
MR SAMUELS: Mr Chairman, before I start, may I have leave to amend the list that I'd handed up to you this morning, recording the specific details about Lucky Molahleni's offences? It has been listed as attempted murder only. May I have leave to increase that list by adding possession of an AK47 and possession of an R4 rifle? It all relates to the same incident at the same time. May I proceed?
EXAMINATION BY MR SAMUELS: Mr Molahleni, how old are you?
MR MOLAHLEHI: 27 years old, Sir.
MR SAMUELS: And you belong to the ANC?
MR MOLAHLEHI: That is correct.
MR SAMUELS: Do you live in Thokoza?
MR SAMUELS: And were you a Self Defence Unit member in Thokoza during the early 90's?
MR MOLAHLEHI: Yes, that is correct.
MR SAMUELS: And who was your commander?
MR SAMUELS: I see. You are applying for amnesty for three offences, attempted murder, possession of AK47 and possession of an R4, is that correct?
MR MOLAHLEHI: Yes, that is correct.
ADV DE JAGER: Could you perhaps in his application itself, from page 111, show us where he mentions any of these offences.
MR SAMUELS: No, it's not mentioned specifically. On page 113, 112, in answer to the question: Furnish sufficient particulars of any acts, he says
"General defence of the community against the IFP."
My submission is that at the time when these applications were filled in, not all the applicants were ad idem on what it is that they were going to specifically write in each application. There had been - and it may be viewed incorrectly that a policy decision was taken on how to fill in these forms and on that reason my submission is, there will logically be a difference between what the applicant will be saying now in oral testimony as opposed to that paragraph A(1).
I appreciate that can be argued on a matter of inconsistency and therefore can be rejected as evidence. My argument would be that a general phrase was written and it is only now that the specifics are available, that we have tried to hand them up. I understand your question.
CHAIRPERSON: You see the problem that we face, and I think you're going to have to argue this very strongly, is that when they say "in general defence of the community", that in itself is not a crime.
CHAIRPERSON: And hence the question, how does the application fit in here?
MR SAMUELS: Yes, again my only submission is, it was a general policy decision taken not by this specific applicant, by his political party, that these forms will be filled in in a certain way. And in fact this also reflects on our previous difficulties of wanting to lead previous witnesses and history and the manner in which the hearings would have been held.
My submission is that the specific acts that the applicant will now testify to, or the general defence of the community encompasses those specific acts, being defending his community against marchers along a certain street. I would submit that his specific acts that he will tell us about now can be included within that very, very general phrase, "general defence of the community." That is my only submission on that point. If you wish us to argue on ...(intervention)
CHAIRPERSON: No, I think let me allow you to lead the evidence, with the rider that I'm not particularly convinced that this is a proper application at this stage. Perhaps you will at the end persuade us all that is okay, and we will wait till then.
MR SAMUELS: Okay, thank you. May I continue?
ADV DE JAGER: Only for the record, Ms Patel, were particulars asked at a certain stage and where they supplied, when and so on?
MS PATEL: If you grant me a moment I will double-check.
ADV MOTATA: Mr Samuels, I just want to clear one thing. I just want the correct spelling of his surname.
ADV MOTATA: Are you Molahlehi or Molahleni?
MR MOLAHLEHI: That is Molahlehi, H-I at the end.
MR MOLAHLEHI: M-O-L-O-L-A-H-I, H-L-E-H-I, Molahlehi.
MR SAMUELS: You have applied for amnesty for the attempted murder of IFP marchers, is that correct?
MR MOLAHLEHI: Yes, that is correct.
MR SAMUELS: When did this incident occur?
MR MOLAHLEHI: It was late 1992, towards the end of 1992.
MR SAMUELS: And in which street did this incident occur?
MR SAMUELS: And where about is that, in which neighbourhood?
MR MOLAHLEHI: It is between Unit F and Buyafuti hostel.
MR SAMUELS: Now describe in your own words what happened.
MR MOLAHLEHI: What happened that day, the Inkatha marchers were singing from the hostel. Because we were afraid that when they come back they will come and attack us we went into Unit F so that we could see the direction that they were taking.
When we arrived there, we saw them moving towards our houses, so we tried to stop them. While trying to stop them we were armed with AK47s as members of the ...(inaudible)
CHAIRPERSON: What were you trying to stop them from doing?
MR MOLAHLEHI: It is known that whenever they march, when they come back they will kill people and we didn't want them to reach our places because we knew that they would attack us. That's why we stopped them.
So the shootout ensued because they were also shooting at us and we were also shooting at them. They were accompanied by the Stability Unit. This unit was also helping them to shoot us until we surrendered because we realised that they were being helped by the Stability Unit. Then we ran away.
During that incident one member of Inkatha was in the front. During that shootout he fell. He had an R4. So I had a chance to go and take that R4 and then I took that R4 and ran away with it.
MR SAMUELS: Where is that R4 now?
MR MOLAHLEHI: When we were told to hand our hand over our weapons after the elections, I returned that R4, I handed it over.
MR SAMUELS: Who did you give it to?
MR MOLAHLEHI: I didn't give it to a specific person, we just handed them over at the stadium. We didn't know where they were taken to.
MR SAMUELS: Now you said that when the IFP marchers were coming along Schoeman Street, you were shooting in their direction, how far away did you stand from these marchers, approximately?
MR MOLAHLEHI: It could be about 100 metres from where I was standing.
MR SAMUELS: I see. And the AK47 that you had in your possession, did you know that it was illegal to have an Ak47 in your possession?
MR MOLAHLEHI: Yes, I did, but because of the situation then, I was forced to have it in my possession.
MR SAMUELS: And did you also know that to hold the R4 was unlawful, illegal?
MR SAMUELS: I see, thank you. Thank you, Mr Chairman.
NO FURTHER QUESTIONS BY MR SAMUELS
CHAIRPERSON: Do you know if anybody was killed or injured during that event?
MR MOLAHLEHI: No, Chairperson, I don't know of any person that was injured or killed during that shoot-out.
ADV DE JAGER: Sorry, but didn't you tell us about somebody, and you in fact took his R4 or was that not on that occasion?
MR MOLAHLEHI: That's correct, he was injured but I don't know him.
CHAIRPERSON: That's what I asked, if anybody was injured or killed. ...(inaudible) the name.
MR MOLAHLEHI: Yes, I agree that people got injured because we were fighting.
CHAIRPERSON: Yes, we'll break for the lunch adjournment.
MR SAMUELS: That is the applicant's evidence-in-chief.
CROSS-EXAMINATION BY MR SWANEPOEL: Thank you, Mr Chairman. I have a few questions. I just want to clarify something.
Sir, you were present when the previous applicant gave evidence about a shooting at a funeral which proceeded down Schoeman Street, do you recall that evidence?
ADV DE JAGER: I think it's the same applicant. He testified about a shooting down Schoeman Street.
MR SWANEPOEL: Indeed Sir, but the previous applicant also testified about a shooting down Schoeman Street, near the tennis courts, if I remember correctly.
CHAIRPERSON: Did he say Schoeman Street? I'm not too sure.
MR SWANEPOEL: If my memory serves me correctly, I'm just trying to ascertain whether we are talking about the same event. If not, I will ... Thank you, Mr Chairperson.
Shall I repeat the question, Sir?
MR SWANEPOEL: You were present when the previous applicant testified about a shooting that occurred at a funeral march down Schoeman Street, and if my memory serves me correctly, he specifically mentioned near the tennis courts and he also mentioned people shooting from houses, do you recall that testimony.
MR MOLAHLEHI: Yes, I remember, but it's not the same incident.
MR SWANEPOEL: Alright. I'll leave that there then ...(intervention)
CHAIRPERSON: Schoeman Street seems to be a war zone.
MR SWANEPOEL: Apparently so, Sir, also very close to the cemetery.
Let me ask you this. When the person at the front of the march fell, did he fall because he was shot?
MR MOLAHLEHI: Can you repeat the question, Sir?
MR SWANEPOEL: When the person at the front of the march, the person whose R4 rifle you took fell, did he fall because he was shot?
MR SWANEPOEL: And did you see where he was shot?
MR SWANEPOEL: I have nothing further, Mr Chairman.
NO FURTHER QUESTIONS BY MR SWANEPOEL
CHAIRPERSON: Ms Patel, have you got any questions?
CROSS-EXAMINATION BY MS PATEL: Yes, just one aspect I'd like clarity on, Honourable Chairperson.
Mr Molahlehi, can you recall at the start of the incident where the first shots came from? Did you act in response to shots being fired upon you or were you the aggressors in this matter?
MR MOLAHLEHI: They started shooting and then we responded.
MS PATEL: Are you saying then that you acted in self defence?
MR MOLAHLEHI: Yes, that is correct.
MS PATEL: Thank you, Honourable Chairperson, I have no further questions.
NO FURTHER QUESTIONS BY MS PATEL
ADV DE JAGER: Were any people on your side injured?
ADV DE JAGER: Was there a lot of gunfire from the other side?
MR MOLAHLEHI: Yes, that is correct.
ADV DE JAGER: Anybody injured on your side?
MR MOLAHLEHI: No person on our side was injured because we had a place where we shielded ourselves.
ADV DE JAGER: So you were not openly confronting each other?
MR MOLAHLEHI: We were confronting each other but we took cover.
ADV DE JAGER: Were you taking cover in houses, or where did you take cover?
MR MOLAHLEHI: We were outside the houses but inside the yard. We used the whole fences of those houses.
ADV DE JAGER: When you ran out to take the R4, were they still shooting at that stage?
MR MOLAHLEHI: Yes, they were shooting at that time. The person who was leading the march was near me, that is why I was able to go and take that R5.
ADV DE JAGER: How far from you did he fall?
MR MOLAHLEHI: Approximately 40 metres.
CHAIRPERSON: Have you got any re-examination?
MR SWANEPOEL: No re-examination, thank you.
NO RE-EXAMINATION BY MR SWANEPOEL
RECALL OF MR THEMBA RICHARD XABA
MR SAMUELS: Mr Chairperson, earlier on we indicated that Perry Dlamini who was a co-conspirator with Mr Xaba who gave evidence today, was unavailable. We have since traced him and I would now like to call Parry Dlamini to the witness stand.
MR SWANEPOEL: Mr Chairperson, if I may. I have in the meantime taken instructions from the victims whom I represent in this matter. Maybe this is a convenient time to finish the cross-examination of Mr Xaba and then proceed with ...(intervention)
CHAIRPERSON: Do you have any questions of him?
MR SWANEPOEL: I have one or two questions, depending on the answers, Mr Chair. As you please.
CHAIRPERSON: We recall Mr Xaba.
Mr Xaba, you are still under oath to speak the truth, do you understand? Has he heard that?
INTERPRETER: If he can just tune in on channel 4.
CHAIRPERSON: You are still under oath to speak the truth, do you understand?
MR SWANEPOEL: Thank you, Mr Chairperson.
Mr Xaba, do I understand your evidence correctly to be that you based your assumption that only Mr Msizi was in the house, on information that you received from people who watched the house for you in the street?
MR XABA: Yes, I've said so. We were sure that it was only Mr Msizi and his children were not there, and his wife wasn't there, we confirmed this.
CHAIRPERSON: In other words, you only make application in respect of an attempt to murder Mr Msizi?
MR XABA: Yes, he was an IFP member and a leader. We wanted him to resign.
MR SWANEPOEL: Now, I have taken instructions, and Mr Msizi will come and testify if necessary, but my instructions are that his whole family was in the house that evening when you threw the petrol bomb into the house, what do you say to that?
MR XABA: I'm certain his family wasn't inside the house. It's a lie that his family was inside the house.
CHAIRPERSON: But you said you relied on the information of your informants, correct?
MR XABA: I said like that and I also said that I took it my job to make sure that Msizi was alone and his family wasn't inside the house. When he came at ten to nine he was alone, his family wasn't there.
CHAIRPERSON: Mr Xaba, I don't want to sound rude but you've told us this so you don't have to repeat it. We don't want to hear a long version. All I'm asking is simply, that as I understand your evidence thusfar, that you had people watching the house and prior to your throwing or the group throwing that petrol bomb into the Msizi house, your information from those people who were watching that house was that Mr Msizi took his family away and returned alone, and consequently you drew the conclusion that when you threw or when your group threw that petrol bomb into the house, Mr Msizi was there alone, am I correct?
MR XABA: Yes, you are correct.
CHAIRPERSON: Now if your informants were incorrect or they were wrong or they lied to you, you wouldn't know, isn't it?
CHAIRPERSON: And therefore it was put to you that you would not be able to dispute in those circumstances, if Mr Msizi were to come and testify that he and his family were indeed in the house when that petrol bomb was thrown into it.
MR XABA: Let me just explain this this way. I came 15 minutes before we did what we did and when Msizi came into his house I was outside his house, and he was alone.
CHAIRPERSON: Yes, but his family may have been inside the house. I'm not saying, and I don't think the advocate is suggesting that your honest belief may have been that Mr Msizi was alone, but the factual issue may have been otherwise, would you not agree with that?
MR XABA: I do agree that probably there may have been other people in the house.
MR SWANEPOEL: Thank you, Mr Chair.
Now let me understand your complaint against Mr Msizi correctly, is your only complaint that he was an IFP member and a council member and that he was opposed to the ANC?
CHAIRPERSON: I don't think that was - his complaint was initially, you may get other answers now, but he was councillor whose activities didn't favour the community.
MR SWANEPOEL: Thank you, Mr Chair.
Let me rephrase my question. Did you ever see Mr Msizi attack the community or being involved in crimes against the community?
MR XABA: ...(no English translation)
CHAIRPERSON: I think you better be very careful, to define what you mean by crime to the witness. What you and I may regard as common law crimes or statutory crimes, there are other crimes which are moral, which the witness may refer to as crimes. They've always being doing so in political talk.
MR SWANEPOEL: Thank you, Mr Chair.
I'll rephrase to state: did you ever see Mr Msizi involved in attacks against the community?
MR SWANEPOEL: So when you say that the reason for you committing the offence, in your application on page 70 of the bundle, is
"General defence of the community."
the word "defence" is not strictly speaking correct, is that true?
CHAIRPERSON: That's precisely what I was getting to, Mr Swanepoel. I don't want to put words into the witness's mouth but I have come across interpretations of offences by victims, for example corruption, taking away their homes for whatever reason, manipulating a list of people who are waiting to be allocated houses, that sort of thing.
Strictly speaking that may not be crime as we understand it, but there have been applications that I've come across, where people refer to those kind of activities as crimes and defending the community against such activities.
MR SWANEPOEL: Thank you, Mr Chair, I'll leave that aspect for argument.
One final question, Mr Xaba. Could you just refresh my memory, who exactly was with you when the attack was launched?
MR XABA: It was Perry Dlamini, Bafana Baloi and Jacky Macheo.
MR SWANEPOEL: I have no further questions, Mr Chairperson.
NO FURTHER QUESTIONS BY MR SWANEPOEL
ADV DE JAGER: You testified that you prepared the petrol bombs.
ADV DE JAGER: When were those bombs prepared?
MR XABA: Before we went and attacked Mr Msizi's house.
ADV DE JAGER: Yes, how long before, an hour before or two hours before?
MR XABA: We prepared these from 6 o'clock and the attack took place at 9 o'clock.
ADV DE JAGER: And when did you start - you said you went to the house, I couldn't catch it, was it 50 minutes, 50, or 15 before the attack?
MR XABA: 15 minutes before the attack.
ADV DE JAGER: And you didn't look into the house at that stage, through a window or a door?
MR XABA: Msizi's house used to have policemen all the time and it was not easy for one to look through the windows or the doors because of that.
ADV DE JAGER: Ja, but we know that there were no policemen on that evening.
MR XABA: I'm talking about 9 o'clock, and these people changed shifts, so the other group left and the other group was about to come. It was not easy for us to enter, to actually enter Msizi's house but we could see from a distance.
ADV DE JAGER: When did the police leave, the first shift? Did you see them leaving?
MR XABA: Yes, we saw the police leaving.
ADV DE JAGER: And after they left, didn't you go up to the window to look who is there?
MR XABA: No, Msizi was there and he was our only target. We were not worried about others. As soon as the police left, we attacked.
ADV DE JAGER: So you don't know whether there were others in the house?
MR XABA: As I have mentioned, we were sure that Msizi's family had already gone and he came back alone and the police had gone already, so we were sure that he was alone. We didn't know that there were other people whom we don't know.
ADV DE JAGER: And how long before the attack did the police go?
MR XABA: It took us three minutes. As soon as the police left, we attacked.
ADV MOTATA: Mr Xaba, you said after you hurled these petrol bombs you ran away, did I hear you correctly?
ADV MOTATA: Do you know what damage was done to Mr Msizi's house?
MR XABA: I saw the damage the following day.
ADV MOTATA: How much was the damage?
MR XABA: Now if you're talking about monetary, I wouldn't know but it was damaged.
ADV MOTATA: I mean how were the walls damaged or what burnt because of the petrol bombs?
MR XABA: The roof was damaged but the walls were still there.
ADV MOTATA: Thank you, Chairperson, I've got no further questions.
MR SAMUELS: I have no further questions, Mr Chairman. May the witness be excused? Thank you.