CHAIRPERSON: Today we are going to hear the application of Nyawose Ziphakamise aka Khumalo which is application AM6192/97. Ms Thabethe and Mr Mlungisi, I hope we are now ready to proceed. We should have commenced with this application at 9 o'clock. Again our proceedings have been delayed for almost an hour. I do not expect you to advance any reasons for the delay. I however which to register our dissatisfaction with the manner in which these proceedings are going. We hope and trust that we will always be time conscious because if we are not, we will not be in a position to conduct our proceedings in an equitable manner. I expect counsels and lawyers to conduct themselves in a proper manner and that includes observing the time that we have mutually set as a Committee in consultation with counsel and lawyers. I shall now give Mr Molohlanye an opportunity to commence with Mr Nyawose aka Khumalo's application.
MR MOLOHLANYE: Thank you Madame Chair. I'd like to apologise for the delay and I would like to call the applicant in this matter Ziphakamise Nyawose aka Khumalo.
CHAIRPERSON: Mr Khumalo, will you please come forward? Mr Khumalo, which is your correct surname? Is it Khumalo or Nyawose?
CHAIRPERSON: Do you also use Khumalo as a surname?
CHAIRPERSON: Which surname should we use? Khumalo?
ZIPHAKAMISE NYAWOSE: (sworn states)
CHAIRPERSON: Before you proceed, Mr Molohlanye, I note that you have now handed up another affidavit further to the affidavit that was handed up to the Committee on Monday which paragraphs are different from the ones that was handed to us on Monday. Are you in a position to quickly point to us which paragraphs have been included or have been amended from the one that we had on Monday?
MR MOLOHLANYE: Thank you Chairperson. There has been several changes in the affidavit as such. We'll start at the first one, was in connection to paragraph 1 and the second one is paragraph 5 and paragraph 9, there was a change also there. Paragraph 10 was also a change. Paragraph 11 there was a change but I'm not in the position of that.
ADV DE JAGER: Paragraph 11 resembles the old paragraph 12.
ADV DE JAGER: You've combined paragraphs 9 and 10?
MR MOLOHLANYE: That is correct.
Also changes in paragraph 12. According to the new affidavit it's paragraph 11 and paragraph 13 of the old affidavit which is now paragraph 12. That's how far the changes have been.
ADV DE JAGER: Am I correct in saying that the essential paragraph for this application is paragraphs 11 and 12?
MR MOLOHLANYE: That is correct, Honourable Member.
CHAIRPERSON: You will recall that you were to apply for an amendment? Could you please proceed to do so?
MR MOLOHLANYE: Thank you. Before I do so, Madame Chair, I've noticed that after paragraph 19, paragraph 20 to 21 of this is missing in your affidavit. Can I ask our logistical manager to make copies for you before we proceed?
MR PANDAY: Sorry Madame Chair, if I may just intervene here for a moment? Madame Chair, I've been given the amended affidavit as of now as well as the old affidavit as of now. Madame Chair, in the circumstances would it not be advisable that my learned friend get the entire documentation in order so that I can be put in a position to follow what is happening because given the missing pages as my learned friend has indicated to Madame Chair that paragraph 21 of the amended affidavit is now not in it's place, I don't have that as well.
CHAIRPERSON: So you will have it, I mean it is now going to be distributed to all the parties involved.
MR MOLOHLANYE: Madame Chair, I'd like to proceed with my application for an amendment. Madame Chair, I'd like to apply for an amendment in terms of the application by the applicant Mr Nyawose. Mr Nyawose originally applied for amnesty for a murder, for the killing of Mr Bhukunda Cele only and apparently Mr Khumalo was convicted of murder, attempted murder and escaping from prison. I therefore apply to this Committee that we include the attempted murder and escaping from prison because they form part of the same act.
CHAIRPERSON: On what bases would you include the act of escape in your application for an amendment of this application? We have no problem with regard to the act of attempted murder of Mr Ngcobo being included as an act which was omitted specifically as an act was omitted in his amnesty application because it arose out of the same incident to which he applied originally in his amnesty application?
MR MOLOHLANYE: I therefore withdraw the escaping from imprisonment, your Honour.
CHAIRPERSON: Your application for amnesty to include the act of attempted murder of Mr Ngcobo is granted. The applicant will now lead evidence in respect ...(intervention)
MR MALAN: Can we just hear whether there is an objection?
CHAIRPERSON: You are representing the interests of the victims?
MR PANDAY: That is correct, Madame Chair.
CHAIRPERSON: Can we have your name on record?
MR PANDAY: It's Mr Panday, P-A-N-D-A-Y.
CHAIRPERSON: Mr Panday, an application has been made by Mr Molohlanye to include the act of attempted murder of Mr Ngcobo on whose interests we are now appearing today.
MR PANDAY: Your Worship, I represent the victim Goodman Ngcobo.
CHAIRPERSON: Yes, an application has been made to include the act of attempting to kill Mr Ngcobo.
MR PANDAY: No there is no objection ...(indistinct)
CHAIRPERSON: Your application is accordingly granted.
MR MOLOHLANYE: Thank you Honourable Committee.
CHAIRPERSON: You may proceed to lead evidence.
Mr Khumalo, we have been given an affidavit. This will be Exhibit A, page 21 has not yet reached my hands, I mean paragraph 20 to 21 has not yet reached our hands?
MR MOLOHLANYE: Thank you Chairperson. I think the logistical managers are making copies.
CHAIRPERSON: Has paragraph 20 and 21 been read to Mr Khumalo?
MR MOLOHLANYE: Yes they have been.
CHAIRPERSON: Mr Khumalo, is this affidavit the affidavit that you have deposed to? Mr Khumalo, did you depose to this affidavit?
CHAIRPERSON: Do you understand the contents of this affidavit?
CHAIRPERSON: Had you confirmed that they are true?
CHAIRPERSON: We will then accept Mr Molohlanye this as Exhibit A. You don't need to lead him on any aspect which is contained in this affidavit.
NO FURTHER QUESTIONS BY MR MOLOHLANYE
CHAIRPERSON: Mr Panday, is there anything that you - are there any questions that you wish to put to Mr Khumalo?
MR PANDAY: Madame Chair ...(intervention)
CHAIRPERSON: I am mindful of the fact that you don't have paragraph 20 and 21. I think the crux of the matter really lies in what is contained from paragraph 10 or from paragraph 1 to approximately paragraph 12 which really gives an indication of what actually happened prior to the incident and what happened during the incident in question. The other paragraphs relates to what happened after this incident which I think this Committee is least concerned with.
MR PANDAY: Madame Chair, I accept what Madame Chair has said. As I've mentioned, I don't have in my possession the original affidavit that was handed up to Madame Chair and the members. Now at this stage I'm not in a position to comment on both the affidavits that have been handed up or direct any questions.
CHAIRPERSON: There is only one affidavit that has been handed up and that's the affidavit that we have now accepted as Exhibit A. Don't you have a copy of this affidavit?
MR PANDAY: Madame Chair, I have parts of it, I'm just waiting for the completed affidavit.
CHAIRPERSON: If you don't I will give you my copy. Do you require time now to adjourn in order to have sight of this affidavit?
ADV DE JAGER: Let's just get this straight. Do you agree that the murder and the attempted murder applied for were acts related to the political struggle at the time in the vicinity?
MR PANDAY: That point is accepted, Mr Chairman.
CHAIRPERSON: The only point of course that you raised with us in chambers is that of full disclosure and you would want to have sight of the affidavit to be able to be satisfied that the applicant has satisfied that requirement of full disclosure. We'll grant you a two minute adjournment to enable you to go through the affidavit and to be able to come back and take instructions to see whether the full disclosure has been complied with by Mr Khumalo. Will that be sufficient time for you to consult with Mr Ngcobo?
MR PANDAY: Yes Madame Chair, that will be sufficient, thank you.
MR MOLOHLANYE: As the Committee pleases.
CHAIRPERSON: We'll adjourn for two minutes.
CHAIRPERSON: Mr Panday, are you in a position to proceed Sir?
CHAIRPERSON: Have you now taken instructions from Mr Ngcobo.
MR PANDAY: Yes Madame Chair, that's correct.
CROSS-EXAMINATION BY MR PANDAY: Yes Madame Chair, just a few.
Mr Khumalo, in your affidavit handed up today, in paragraph 9 you say that you were approached by Tokozani who was the member of the ANC and informed you of the fighting that was taking place. What position did Tokozani hold in the ANC?
MR NYAWOSE: He was an ANC member.
CHAIRPERSON: I'm not getting any translation, are you?
I think there's a problem with my set. You may proceed Mr Panday.
MR PANDAY: Mr Khumalo, I know that he was an ANC member. I want to know what position he held in the ANC. Was he a marshall, was - he held some higher position in the ANC?
MR NYAWOSE: He used to be a marshall sometimes.
MR PANDAY: And is he from the area that you lived in?
MR NYAWOSE: Would you please repeat that?
MR PANDAY: Tokozani, was he from the area that you lived in?
MR NYAWOSE: They were still building a house there.
CHAIRPERSON: Was he from where you were staying?
MR NYAWOSE: No they were from Mabaleni, that's where they were staying before and then they just came to the area.
CHAIRPERSON: In other words he was in your area?
MR PANDAY: Mr Khumalo, you thereafter mention in paragraph 10 that you went to Sitombi's place with two other gentlemen to attack this place. You say one of them was Duleng Cele, that's the one you can remember. Do you know who brought the second gentleman?
MR NYAWOSE: They both came with Tokozani and I was the fourth one.
CHAIRPERSON: May I interpose Mr Panday?
Were these people members of the ANC to your knowledge, the ones that Tokozani brought with them?
CHAIRPERSON: Do you know the surname of Tokozani?
CHAIRPERSON: What's his surname?
CHAIRPERSON: Yes and is Sitombe, that Mr Panday has questioned you about, the same person as Mr Ngcobo? Is that Goodman Ngcobo?
MR NYAWOSE: Yes, his name is Goodman Sitombe Ngcobo.
CHAIRPERSON: Thank you. You may proceed Mr Panday.
MR PANDAY: Mr Khumalo, I'm going to take you back to the time you gave a statement or a confession to a magistrate. Do you remember that time?
MR NYAWOSE: Yes I do remember.
MR PANDAY: Right. Would you be able to remember the statement you gave to the magistrate?
MR NYAWOSE: Even though I cannot remember very well because when I made the statement I was not well, I was forced and also I was trying to run away from being found guilty or having committed the crime.
MR PANDAY: Mr Khumalo ...(intervention)
ADV DE JAGER: Oh, you lied in that statement, is that correct?
MR NYAWOSE: Yes that is correct, in court.
MR PANDAY: Mr Khumalo, do you remember in court they were arguing to accept your statement or not accept your statement, do you remember that?
CHAIRPERSON: Mr Panday, where is this going to get us in terms of you being able to explore whether in his amnesty application he has made a full disclosure? He has already admitted not to have been entirely true in that statement. Is there a point to which you are getting?
CHAIRPERSON: You obviously now have taken instructions and if there is anything in terms of what is contained before us in this affidavit, that would indicate that he is not telling the truth. Wouldn't it actually expedite matters if you were to put those things that you do not entirely agree with?
MR PANDAY: As you please, Madame Chair.
Mr Khumalo, when you made the statement you mentioned that you had gone to Durban and fetched nine other men and come back to Sitombe's place, do you recall that?
MR NYAWOSE: Yes I do remember.
CHAIRPERSON: What page is that, won't you tell us?
MR PANDAY: That's page 21 of the bundle of documents that was given to me.
CHAIRPERSON: Yes we have that.
MR PANDAY: Seven lines down from the top, Madame Chair.
Now Mr Khumalo, why now in your paragraph in your affidavit you mention only two others accompanied you to Sitombe's place?
MR NYAWOSE: I said there were nine from Durban before. The truth is that we were four and out of these four I only knew one person. The other one I didn't know and then I knew Tokozani and myself.
MR PANDAY: So are you saying that you lied that there was nine of you?
CHAIRPERSON: That's what he's saying.
MR PANDAY: Now Mr Khumalo, which are we to believe, nine or four?
CHAIRPERSON: He is telling you he's now telling the truth, he lied in the statement he made before the magistrate.
MR PANDAY: Mr Khumalo, in paragraph 11 of your affidavit you mention you had hand grenades and AK-47s. Where did you get the hand grenade from?
MR NYAWOSE: Tokozani brought it.
MR NYAWOSE: Tokozani as well brought the AK-47.
CHAIRPERSON: Did Tokozani give an indication from where he had obtained these weapons?
MR NYAWOSE: No, he didn't give me any indication and also myself I didn't even ask him because I actually admired the fact that he had these weapons with him because I also needed weapons and what I had with me, I wasn't happy about it because it was a SP12.
MR PANDAY: So Mr Khumalo, is it correct that the entire factions that took place was not as a result of your brother being killed by Sitombe and his friends, it is what Tokozani came and told you, is that correct?
MR NYAWOSE: It was everything together. Tokozani was being harassed by these people, also myself. I decided that I should accompany Tokozani and if I were to die I was ready to do so.
MR PANDAY: Thank you Madame Chair, nothing further.
NO FURTHER QUESTIONS BY MR PANDAY
CHAIRPERSON: Thank you Mr Panday.
CROSS-EXAMINATION BY MS THABETHE: Thank you Madame Chair, I have one question.
Mr Khumalo, why was Bhukunda Cele and Mr Ngcobo
killed? Why was Bhukunda Cele killed and Mr Ngcobo injured?
MR NYAWOSE: Ngcobo was our enemy, he used to attack the ANC organisation or members and my aim was not to kill Cele, my aim was to kill Ngcobo.
MS THABETHE: No further questions, Madame Chair.
NO FURTHER QUESTIONS BY MS THABETHE
CHAIRPERSON: When you say your aim was not to kill Cele but to kill Ngcobo, how was Mr Cele killed?
MR NYAWOSE: Cele was caught in a crossfire because he was at Ngcobo's place.
CHAIRPERSON: When you left that day to attack Mr Ngcobo's house did you know that Mr Ngcobo would not be the only occupant in the house?
MR NYAWOSE: No we didn't know that.
CHAIRPERSON: What were your intentions when you left, were your intentions not to attack Mr Ngcobo's house?
MR NYAWOSE: Yes, they were to attack Mr Ngcobo's house.
CHAIRPERSON: Yes and by attacking Mr Ngcobo's house that would include attacking anyone who was also inside the house is it not so?
MR NYAWOSE: We thought that he was alone inside the house.
CHAIRPERSON: In your affidavit you've stated that your house had also previously been attacked, do you recall that?
CHAIRPERSON: And who had attacked your house?
MR NYAWOSE: Dodo Mbambo and Mshlate, his brother and Tokozani.
CHAIRPERSON: And to which political organisation did these people belong?
CHAIRPERSON: And then your house was attacked, was it an indiscriminate attack on your house or did they shoot at your house and the people who were inside the house?
MR NYAWOSE: No, they didn't shoot at the people, they came straight and they said they were looking for me and they were told that I wasn't there and they said they must tell me when I come back that they will come back for me and they will catch me and they left. They met my sister on the street, they chased her away until she ran to my uncle's place.
CHAIRPERSON: Why was your sister actually chased away?
MR NYAWOSE: I don't have any idea because she's a female.
CHAIRPERSON: When you took a decision to attack Mr Ngcobo's house what objective did you seek to achieve by that attack?
MR NYAWOSE: Our objectives was to kill him so that the violence will deteriorate because at that time it had gone up.
CHAIRPERSON: Was it your intention to kill any person who would have been in the house and whom you thought was an IFP person?
MR NYAWOSE: No, it wasn't my aim, my aim was to just kill Mr Ngcobo.
CHAIRPERSON: Were you not fighting the IFP, were you not having continuous running battles as an ANC member with IFP people?
MR NYAWOSE: No, we didn't want to have continuous fights with the IFP. We didn't want to fight every single supporter of the IFP. The only problem with Mr Ngcobo was that he was the one who used to attack us. He shot at us and I think I know the reason why he shot us.
CHAIRPERSON: Why did he shoot at you?
MR NYAWOSE: ANC supporters or members killed his mother but I wasn't part of those attackers who attacked and killed his mother.
CHAIRPERSON: When was that? Was it also in 1993?
MR NYAWOSE: I think it was 1990, I'm not sure.
CHAIRPERSON: Would I therefore be correct in assuming that there were continuous fights between members of the ANC and the IFP in your area from 1990 to 1993?
MR NYAWOSE: Yes that is correct.
CHAIRPERSON: And that the members of one political organisation were killing members of the other political organisations?
MR NYAWOSE: Yes that is correct.
CHAIRPERSON: And the organisations concerned were ANC and IFP?
MR NYAWOSE: Yes that is correct.
CHAIRPERSON: And that you personally were aggrieved by the fact that your own brother had been killed in this conflict between the two political organisations?
MR NYAWOSE: Yes that is correct.
CHAIRPERSON: And that you also intended to kill members of the IFP because of this political conflict that you had?
MR MALAN: Mr Nyawose, referring to the first paragraph of your affidavit, the killing of the mother of Sitombe Ngcobo, do you know who attacked and killed her? You said they were other members of the ANC, do you know any of them?
MR NYAWOSE: Yes there are some people that I know that they were among the group who killed the mother.
MR MALAN: Can you mention some of those names that you can remember?
MR NYAWOSE: Yes I will mention the ones that I remember and unfortunately some of them they passed away. Vusi Nglovo, Thabani Nglovo, they are brothers and the others I don't remember because there were quite a number of ANC supporters who came to visit to the area.
MR MALAN: Do you know or did you know a person Dan Cele?
MR NYAWOSE: Yes I know Dan Cele.
MR MALAN: Was he involved in that attack to your knowledge?
MR NYAWOSE: Yes, he was present.
MR MALAN: Was he one of the comrades, Dan Cele?
MR NYAWOSE: Yes he was an ANC.
MR MALAN: Was he a youth leader in the youth league?
MR MALAN: Were you a member of the youth league?
MR MALAN: Did you hold any position?
MR NYAWOSE: No I didn't have a specific position but they would sometimes put me in any position wherever there was a vacancy.
MR MALAN: And Tokozani who accompanied you in this attack, was he a leader?
MR NYAWOSE: Sometimes he would be a marshall since he was working and if he wasn't at work then he will be a marshall in the meeting.
CHAIRPERSON: Mr Molohlanye, I take it that you wouldn't be bold enough to wish to re-examine?
MR MOLOHLANYE: Yes there's only one question I want to ask to ask.
CHAIRPERSON: So you want to be bold? Yes, I will allow you to re-examine.
RE-EXAMINATION BY MR MOLOHLANYE: Thank you.
Mr Nyawose, now that you divulge all your participation in all these acts, how do you feel now?
CHAIRPERSON: That is not re-examination.
CHAIRPERSON: You can re-examine on anything that came out of Mr Panday's questioning, Ms Thabethe and the Committee's questions.
MR MOLOHLANYE: No re-examination.
CHAIRPERSON: You can apply to reopen your evidence in chief to ask Mr Khumalo that question. You may apply to reopen.
MR MOLOHLANYE: Thank you your Worship, I therefore apply for opening of ...(intervention)
CHAIRPERSON: It's granted, you may put that question to him.
Mr Nyawose, now that you've divulged all your participation and your role in the attacks during the killing of Mr Cele and the attempted murder of Mr Ngcobo, how do you feel now?
MR NYAWOSE: I have great regrets and I realise the one thing that what I've done I've done it because I was heartbroken and it wasn't so necessary. I regret whatever I've done and I feel remorse.
MR MOLOHLANYE: Mr Nyawose, have you met any of the victims which are involved in this incident?
MR NYAWOSE: If you could please repeat that for me?
MR MOLOHLANYE: Have you met any of the victims involved in this incident?
MR MOLOHLANYE: How is your relationship or what did you say to them or how do you relate ...(intervention)
CHAIRPERSON: Mr Molohlanye, you applied to reopen your evidence in chief and I granted you that indulgence. It was for only one question. You have exhausted that one question. I don't think this Committee can really be burdened about the relation that he has with the victims. It is common knowledge, it is known to all and sundry that this process is about reconciliation but pertinently we have to be satisfied with regard to whether the applicant in this case, Mr Khumalo, has made a full disclosure and whether the evidence complies with the requirements of Section 20, that is what we have to do. If he wishes to speak to the victims which we will always encourage as a Committee, because we are about reconciliation, he is free to do so. This can be facilitated by our logistics officer, Joe is here around, he can facilitate that, Melani is here, he can facilitate that, we always encourage that but that need not really form part of the record.
MR MOLOHLANYE: Thank you Chairperson, I'll withdraw my question.
NO FURTHER QUESTIONS BY MR MOLOHLANYE: CHAIRPERSON: Mr Malan would like to ask Mr Khumalo one
question which might impinge on what you wanted to elicit from Mr Khumalo.
MR MALAN: Mr Nyawose, have you since met Goodman Ngcobo, Sitombe Ngcobo?
MR MALAN: Is he in the same prison with you?
MR MALAN: Have you reconciled?
CHAIRPERSON: I think that should conclude your re-examination, sorry your evidence-in-chief?
MR MOLOHLANYE: That is correct.
CHAIRPERSON: Are you now in a position to address us on any issue with regard to Mr Khumalo's application?
MR MOLOHLANYE IN ARGUMENT: Yes, I am in a position to address, thank you Madame Chair.
I hereby make a submission in regard to the application of Mr Nyawose in that Mr Nyawose have met all the requirements in terms of the Act, especially Section 20 sub-section 2(a) where Mr Nyawose has divulged or disclosed all the relevant facts in the act in which he was associated with a political objective and Mr Nyawose was a member of a political organisation which was publicly known and his acts where a struggle waged against another political organisation which was publicly known and therefore in terms of Section 20 sub-section 2(f) this person, who was Mr Nyawose, was acting in the course or scope of his duties, within the duties or implied authority of the political organisation.
CHAIRPERSON: Wouldn't he fall pertinently under paragraph (a) rather than (f)? Wouldn't that be your argument that he falls squarely within the provisions of 20, sub-section 2?
MR MOLOHLANYE: That will be so Madame Chair and also further in my submission that in terms of sub-section 3 of Section 20, the criteria which is used in the granting of the amnesty, I believe that Mr Nyawose qualifies in terms from (a) to (f).
CHAIRPERSON: Thank you. Mr Panday?
MR PANDAY IN ARGUMENT: Thank you Madame Chair.
Madame Chair, insofar as the political objective of the applicant is concerned, I think that is now common cause before this Committee that that is not in dispute. Obviously the only issue that now comes to light as to whether there has been full disclosure.
Madame Chair, insofar as the issue of full disclosure is, we've had Mr Khumalo explain to us how the entire incident had taken place at the place of Sitombe Ngcobo's residence, how the killing had led or what led to the killings, Madame Chair.
Madame Chair, it's therefore my submission insofar as to whether what he has put before this Commission as to whether that is full disclosure, Madame Chair. That would have to be left in the hands of the Commission to come to a conclusion whether that satisfies the test of full disclosure.
CHAIRPERSON: But you yourself have not put anything in dispute, you've not disputed the evidence with regard to his explanation as to how the incident occurred, have you?
MR PANDAY: That is accepted, Madame.
CHAIRPERSON: You have not put any different version?
MR PANDAY: That is true Madame Chair insofar as the victims concerned was at this stage as to whether there was just full disclosure.
MS THABETHE: No argument Madame Chair, I have no argument.
CHAIRPERSON: Would you say that the applicant complies with the requirements of Section 20, sub-section 1?
MS THABETHE: Yes Madame Chair.
CHAIRPERSON: And would it be your submission that amnesty should therefore be granted to him?
MS THABETHE: Yes Madame Chair.
I wish to thank the legal representatives, both of the applicant and the objector as well as our evidence leader for their assistance in the speedy conclusion of this application. We will be in a position to pronounce our decision with regard to this application tomorrow morning.
MR PANDAY: As Madame Chair pleases.
MS THABETHE: As the Committee pleases.
MR MOLOHLANYE: As the Committee pleases.
CHAIRPERSON: Mr Panday, I note that you were only involved in this matter. You are excused.