CHAIRPERSON: Good morning to you all. This is the first sitting of the Amnesty Committee, today being the 20th of September 1999. The Hearing taking place at the Durban Christian Centre. The first application which is set down on the roll is the one of Moses Mtu Dlamini, application no AM1574/96. Before I proceed to request the legal representative appearing for Mr Dlamini to put his name on the roll, it is my pleasure to introduce the Members who will be sitting, listening to the evidence for the duration of all the applications set down for this week in Durban. On my right-hand side I have Adv Chris de Jager, Senior Counsel, on my left-hand side Mr Wynand Malan. I am Judge Sisi Khampepe. The legal representative for Mr Dlamini, kindly place your name on the roll.
MR PANDAY: Thank you, Madam Chair. Madam Chair, my name is Mr Panday, initial S and I confirm my appearance for the applicant.
MS MTANGA: Chairperson I am Lulama Mtanga the Evidence Leader. Thank you.
CHAIRPERSON: Thank you. Mr Panday, are we in a position to commence with hearing the evidence of Mr Dlamini?
MR PANDAY: That is correct, Madam Chair.
CHAIRPERSON: Yes. Will Mr Dlamini be giving evidence in Zulu?
CHAIRPERSON: Has he been shown how to use our headphones?
MR PANDAY: I am not aware of that Madam.
MOSES MTU DLAMINI: (sworn states)
CHAIRPERSON: Mr Panday, you may proceed.
EXAMINATION BY MR PANDAY: Mr Dlamini is it correct that you are an applicant for amnesty herein?
MR DLAMINI: Yes, that is correct.
MR PANDAY: Mr Dlamini, is it further correct that you were sentenced for the crime of murder and possession of a firearm during 1994 with four others?
MR DLAMINI: Yes, that is correct.
MR PANDAY: Mr Dlamini during the commission of that offence ...(intervention).
ADV DE JAGER: Mr Panday, is it correct that he received a sentence of 8 years imprisonment for the murder and 1 year imprisonment for the possession of a firearm and 3 months for possession of ammunition, but the last two sentences were running concurrently so he was sentenced to an effective term of imprisonment of 9 years?
MR PANDAY: Mr Chairman, I was going to get to that. I was going to lead his evidence first as to how he found himself to the point of conviction.
CHAIRPERSON: You may proceed, Mr Panday.
MR PANDAY: Thank you. Mr Dlamini, during 1992 when a murder took place in which you were involved, where were you resident at that time?
MR PANDAY: Was this a rural settlement?
MR DLAMINI: It was next to an airport. There was a building there, next to a place like an airport.
MR PANDAY: And in the area that you lived, how many others lived with you?
MR PANDAY: Mr Dlamini, at that time were you a member of any political party?
MR DLAMINI: Yes, I was an ANC member.
MR PANDAY: For how long were you an ANC member?
MR PANDAY: Besides being an ANC member, did you have any active role with the ANC?
MR MALAN: Just a second, did I hear you say that you have been a member of the ANC from 1973?
MR PANDAY: That is what I heard as well, Chairperson.
MR MALAN: Wasn't he only born in 1975?
MR PANDAY: I take the point, Chairperson, I was going to get to it.
MR MALAN: Then get to it please, Mr Panday.
MR PANDAY: Mr Dlamini, if you were born in 1975, how is it that you're now and ANC member since 1973?
MR DLAMINI: The police made some confusion during the writing down of the statement. I told them that I was born in 1969.
MR PANDAY: Mr Dlamini, if you were born in 1969, in 1973 you would have only been 4 years old. Are you sure that you were still a member of the ANC since 1973?
MR DLAMINI: Yes, I am sure, I am certain about that.
CHAIRPERSON: Mr Panday, you are not incorrect in your calculation yourself?
MR PANDAY: Madam Chair, if he was born in 1969, as he says he was and if he had to be a member since 1973, that would make him approximately 4 years, since 1973 - sorry, I understand, I take the point.
CHAIRPERSON: Let's quickly get over this. Won't you just ask the question pointedly?
MR PANDAY: Mr Dlamini, in 1973 you would have been 4 years old, is that correct, if you were born in 1969?
MR DLAMINI: Yes, that is correct.
MR PANDAY: Now I ask you again, if you were 4 years old, how did you even know of the ANC back then?
MR DLAMINI: My parents used to tell me about it.
CHAIRPERSON: The question is very easy. We would request you to listen carefully to the question and answer the question only if you understand the question. I am going to rather warn you, the time in the hands of the Committee is very short. We want to request you to answer the question according to what you know and as a person who is under oath. You have testified that you have joined and became a member of a political organisation, ANC that is, in 1973. Was that the truth?
CHAIRPERSON: You joined the organisation in 1973?
MR DLAMINI: My parents were ANC members from 1973.
CHAIRPERSON: In this Hearing we do not want to know anything that does not concern you. We don't want to hear any evidence that does not reside within you. Do you understand?
MR DLAMINI: Yes, I understand.
CHAIRPERSON: The question when you joined the ANC, you must tell us what you yourself did to join the ANC. We don't want to hear evidence about your family's association with the ANC. We want your personal involvement with the ANC. Did you at any stage have anything to do with the ANC as a political organisation?
MR DLAMINI: From 1990, here at Tongaat, that is when I met with the ANC people and even the place that we were residing at.
CHAIRPERSON: When you allude to meeting with the ANC people, what do you mean? You stayed in the company of people?
MR DLAMINI: Yes, I was staying with them. We were made to join and we bought some membership cards for ANC, that is when we became full members of ANC.
CHAIRPERSON: You joined the ANC by paying a membership fee to a particular person, is that what you are saying?
MR DLAMINI: I had a choice to do that. I did not do that because I was forced.
CHAIRPERSON: My question does not seek to elicit whether you were forced or not. All that I seek to find out is that you became a member of the ANC by paying a membership fee.
CHAIRPERSON: How did you become a member of the ANC in 1990?
MR DLAMINI: That is the organisation that I grew up in front of.
CHAIRPERSON: Proceed, Mr Panday.
MR PANDAY: Mr Dlamini, would you say that during your growing up, the organisation that you believed in was the ANC?
MR DLAMINI: Yes, that is correct.
CHAIRPERSON: Won't you try and put the question pointedly, Mr Panday? I thought the ground had already been laid that he wasn't really a member, he was really a supporter.
MR PANDAY: Yes, Madam Chairperson. Mr Dlamini, just to clarify the point raised by the Madam Chair, is it correct that you were a supporter of the ANC and not a member of any structure in the ANC?
MR DLAMINI: I cannot say for sure that I was a supporter because all I know is that I was a member, I was ANC, that is all I know.
CHAIRPERSON: You did not have a card, isn't that so? A joining card, the one that you had to pay a membership fee for?
MR DLAMINI: I did not have a card, yes, that is true.
MR PANDAY: Mr Dlamini, when you were residing in Tongaat, was the entire area that you resided in supporters of the ANC?
MR DLAMINI: Yes, that is correct. They were only ANC members.
MR PANDAY: Now during 1992, in the area that you resided in, who was in charge of the people that lived in the airport area?
MR DLAMINI: It was Lucky Ntshetha.
MR PANDAY: Is it correct that Lucky Ntshetha was one of the accused in your criminal matter?
MR DLAMINI: Yes, that is correct.
MR PANDAY: Now, you mentioned that Lucky Ntshetha was in charge. What position did he hold in the ANC?
MR DLAMINI: He was a person whom we would forward our grievances or complaints to.
MR PANDAY: Sorry you mentioned you would forward your grievances and complaints to?
MR DLAMINI: Lucky Ntshetha. Lucky Ntshetha.
MR MALAN: Sorry, if I understand you correctly, are you saying that you put your complaints to Lucky?
MR DLAMINI: Yes, that is correct.
MR MALAN: The question, Mr Dlamini, that Mr Panday put to you was, did Lucky hold a position in the ANC structures? Do you know?
MR DLAMINI: He did not hold any position but he was a person who was appointed by us to be in charge in the area.
MR PANDAY: So is it correct that when there was a problem you saw him as leader?
CHAIRPERSON: Won't you qualify what kind of a problem you are referring to so that he can be more precise in his response?
MR PANDAY: Mr Dlamini, if you all had a problem in the area, if someone was fighting with the people in the area, is it correct that you all would then complain to Lucky?
MR DLAMINI: Yes, that is correct.
MR PANDAY: And is it also correct that Lucky would then decide what has to be done with any problems in the area?
MR DLAMINI: Yes, he would take a decision.
MR PANDAY: Did any of Lucky's - did you personally have to follow any of Lucky's decisions or orders that were taken?
MR DLAMINI: Yes, that is correct.
MR PANDAY: Can you tell us, Mr Dlamini, why you had to follow orders and decisions of Lucky?
MR DLAMINI: The reason for that, it's solely because everything that we did, we did it under his authority. Most of the mistakes, he would - the one who would solve the problems of the community.
MR MALAN: If you talk about the community, are you talking about the 16 people who lived together, or what community are you talking about?
MR DLAMINI: Yes, those people who were residing with us in the area.
CHAIRPERSON: The question is, are you referring to the 16 people?
MR DLAMINI: Yes, I'm referring to those 16 people.
MR PANDAY: Mr Dlamini, we're going to go back to now 1992 when you, together with four others, were charged for the murder of a person.
CHAIRPERSON: May I interpose before you proceed to 1992? We feel it is important for us to be fully informed about how the applicant saw Mr Ntshetha as a leader and for him to tell us when he elected him, or appointed him as his leader.
MR PANDAY: Mr Dlamini ...(intervention)
CHAIRPERSON: When did you appoint Mr Ntshetha as your leader?
MR DLAMINI: ...(indistinct) Ntshetha was appointed on the day when the violence erupted when the IFP people came who wanted to force us to join IFP and the youth from the area ran away to a place that was an airport where we were staying.
CHAIRPERSON: Yes, when I say when, I want you to give me an indication with regard to a year and if possible, the month. When was it, was it in 1980, 1990, 19 - what year are we talking about?
MR DLAMINI: That took place in 1990 on the 2nd of February.
CHAIRPERSON: Yes, you may proceed Mr Panday.
MR MALAN: Sorry, just before you proceed, Mr Panday I am - from the record it seems that the applicant is illiterate Mr Panday, is that so?
MR MALAN: Then I just want to put it to you, Mr Dlamini that we have a statement taken from Mr Ntshetha, from Lucky, in which he says that he moved to the airport area and it seems, if we look at the chronology of his statement, shortly before the incident and that you and others had already been living at that airport shacks, he joined you and he met you there. Is that correct, that you were living already in that area when Lucky arrived there?
MR DLAMINI: Yes, that is correct.
MR MALAN: Now when did Lucky arrive?
MR DLAMINI: He arrived in 1990.
MR MALAN: How do you know it was 1990?
MR DLAMINI: That is the time when we arrived at the place and when he came he found us there, we had been staying there for a short while, three weeks if I'm not mistaken, we had been staying there.
MR MALAN: Now who was the leader before he arrived?
MR DLAMINI: We were working with a person called Basil.
MR MALAN: Can we just get that name again?
MR DLAMINI: We were working with a person called Basil.
MR MALAN: Thank you Mr Panday, you may proceed.
MR PANDAY: Mr Dlamini just to confirm, clarify, you say you were working for a person called Basil, was Basil in charge of the 16 people, or did you just work for Basil?
MR DLAMINI: Basil was not a leader, he was just a brave person, we were working with him because he was brave and we were discussing as what to do when a problem comes, therefore we would try and solve problems, me and him, the two of us.
ADV DE JAGER: This Basil, was he a co-accused with you in this trial?
MR DLAMINI: Yes, he is one of the accused.
ADV DE JAGER: Was his name Basil Ngwenye?
MR DLAMINI: Yes, that is correct.
MR PANDAY: Was Basil also an ANC supporter?
CHAIRPERSON: Yes, Mr Panday, all 16 of them were ANC supporters. You may now move into the main incident. I actually interrupted you when you were now taking the applicant into the incident itself.
MR PANDAY: Mr Dlamini, we're now going to go back to 1992, where you, together with 4 others, were involved in the murder of a person. Now Mr Dlamini, I want for you to explain to the Commission how you became involved and partook in the murder of that person.
MR DLAMINI: Mr Ntshetha was in his room in the morning. He came to my room and he said to me: "Moses, there's a person who is just next to my door with a firearm and I want you to go there with me." I woke up and I called upon the others and we left to the place, all of us. We saw this person and I pointed him with a gun and I told him to put whatever, what was in his hand down. He did so and we took him with, we investigated him and we wanted to know where he came from and he told us.
MR PANDAY: Mr Dlamini, let's go back step by step now. First we had Lucky come to you and say to you that there is a person by his room with a gun, is that correct?
MR DLAMINI: Yes, that is correct.
MR PANDAY: Thereafter, you rounded up the others and you all went to approach this person, who came to attack Mr Lucky, is that correct?
MR DLAMINI: Yes, that is correct.
MR MALAN: Mr Panday, did he give evidence that this person was to attack him? Was his evidence not simply that there was a person?
MR PANDAY: I apologise, Mr Chairman. Mr Dlamini, did Lucky tell you what this person came to his room for?
MR DLAMINI: Yes, he told us everything before going to that place.
MR PANDAY: What is it that Lucky did tell you?
MR DLAMINI: He said he had seen a person in front of his door with a firearm and then he tried to use a back door.
MR PANDAY: Mr Dlamini, you thereafter mentioned that you had approached this person and pointed a firearm at him. Who pointed the firearm?
MR DLAMINI: Myself, I pointed him with a firearm.
MR PANDAY: And when you pointed the firearm at him, what did he do?
MR DLAMINI: I did that and I made him to put his firearm down. Ntshetha is the one who picked up his firearm and we drove him to the place where I was staying. We drove him to my room.
MR MALAN: Sorry, before you proceed with this, when you - where did you find this person?
MR DLAMINI: We found him sitting under a tree, that is where we found him. He was no longer at the door or in front of the door.
MR MALAN: Where was this tree?
MR DLAMINI: It was next to Sinangwenye's house.
MR MALAN: Is that next to Basil's parents' home? Which Ngwenye are you talking about?
CHAIRPERSON: ...(not interpreted)
MR DLAMINI: The tree was next to Sinangwenye's house.
MR MALAN: Who is this Ngwenye? Is he related to Basil?
MR DLAMINI: He is also here right now.
MR MALAN: I want to know whether he is the father of Basil. Is he a family of Basil's?
MR DLAMINI: No. Basil was just alone, he had no member of the family there, only the youth.
ADV DE JAGER: Who is Lucky? Is Lucky also known as Sinangwenye?
MR DLAMINI: Yes, that was another name that we were using for him, he was Sinangwenye.
MR MALAN: So then maybe I've misunderstood you. Are you saying he was sitting under a tree at Lucky's house?
MR DLAMINI: Yes, he was sitting under a tree, next to his house.
MR MALAN: Next to Lucky's house?
MR MALAN: Sorry. Thank you Mr Panday.
MR PANDAY: Mr Dlamini, we stopped at where you mentioned that "Lucky picked up a firearm and we drove him to my place." Now were you living somewhere else at the time?
MR DLAMINI: That is one area with different rooms.
ADV DE JAGER: What do you mean "we drove him"? By car or how did you drive him?
ADV DE JAGER: So you forced him to accompany you to your place? To your room?
MR DLAMINI: Yes, we were forcing him because we were in trouble at the time. We had to investigate him and to know his reason to be there. We wanted to know all about that.
MR PANDAY: Mr Dlamini, when you say, "we forced him to come with us", what sort of force did you all use to take the victim with you?
MR DLAMINI: I had pointed a firearm at him and the other people who were with me were also armed and we were taking him towards my house.
MR PANDAY: Mr Dlamini, when you and other people got to your house, what happened thereafter to the victim?
MR DLAMINI: When we arrived there we sat down. We started asking questions one by one. We wanted to know where he was going to and we wanted to know where he was also coming from. He told us everything.
MR PANDAY: Mr Dlamini what sort of questions did you ask him one by one? What questions did you ask him?
MR DLAMINI: We were questioning him about the attacks in our area and we wanted to know to which organisation did he belong to, because he knew very well that as the ANC was on the other side of the road, he was not allowed to come to the other area because killings were taking place.
MR PANDAY: Mr Dlamini you mentioned that you asked him which organisation he belonged to. Did he tell you which organisation he belonged to?
MR DLAMINI: Yes, he told us that he was an IFP member who was coming from the other side of the road.
MR PANDAY: Did he tell you people what did he come into your area for?
MR DLAMINI: No, he did not tell us the whole truth, he kept on evading some questions.
CHAIRPERSON: How were you able to deduce that he had not disclosed the truth?
MR DLAMINI: The way he was - the manner in which he was talking, when you ask him about the leader, he was not prepared to reveal the truth. He would mention someone else who was not known to us.
MR PANDAY: Mr Dlamini you mentioned that he evaded some of your questions, what questions did he evade? Can you think of any of those questions?
CHAIRPERSON: He has just responded to that, hasn't he Mr Panday? He evaded questions pertinently relating to the names of people in the leadership structures of the ANC from whence he came.
MR PANDAY: Yes, Madam Chairperson.
MR PANDAY: Mr Dlamini after questioning the victim, what happened to him thereafter?
MR DLAMINI: That is when we decided to take him with to a place with some lawn and we took a decision that he should be punished. We let him go - decided to let him go and we told him not to come back there because that was not his place.
MR PANDAY: Mr Dlamini let's start all over again. You said "We took him to a place..." ...(intervention).
CHAIRPERSON: Don't start, Mr Panday, you may ask questions of clarity.
MR PANDAY: As Madam Chair pleases. Mr Dlamini, you mentioned that, "We took him to a place with some lawn", do you recall the place?
CHAIRPERSON: I think it's a place with some grass.
MR PANDAY: Do you recall the area that you and the others took the victim to?
CHAIRPERSON: Yes, I still remember that place very well.
MR PANDAY: What is that area called?
MR DLAMINI: It was the same place like the one that we were residing at, it was just nearby.
MR PANDAY: So there is no name of the area?
MR PANDAY: You thereafter mentioned that: "we took a decision to punish him". What sort of punishment did you all administer to the victim?
MR DLAMINI: It was discipline, we were hitting him with a cane. We were using a cane that is used for fishing.
MR PANDAY: So you were using a fishing rod to assault the victim, is that correct?
MR DLAMINI: Yes, that is correct.
MR PANDAY: Did you in any way - did you personally assault the victim with the fishing rod?
MR DLAMINI: Yes, I'm the one who started the assaulting.
MR PANDAY: Can you remember how many times you assaulted the victim?
MR DLAMINI: 16 each on his buttocks.
MR PANDAY: Who decided that the victim needed to be punished?
CHAIRPERSON: He said they took a decision that he must be punished. Now, do you want to know who is the "they" he has referred to?
MR PANDAY: Madam Chair, the applicant earlier on indicated that they always followed orders and took instructions.
CHAIRPERSON: No, I mean his evidence right now, now Mr Panday, that's why I was saying we don't want to go back because he has already given evidence which, in my opinion has been quite succinct and doesn't need clarification. They took a decision, unless you want to elicit who comprises the "they" he has referred to, you may not repeat your question.
MR PANDAY: As Madam Chair pleases. Mr Dlamini, when you mentioned "we took a decision to assault him", how many of you took that decision?
MR DLAMINI: That is a decision that was taken by all of us that he should be punished.
CHAIRPERSON: How many of you were there, Mr Dlamini?
MR DLAMINI: The people who did that, the people who assaulted him were two and after that we let him go.
CHAIRPERSON: My question is, how many of you were there when you took a decision that this person must be punished?
CHAIRPERSON: So all the people residing at the airport rural settlement were there when this decision was taken?
MR DLAMINI: Yes, all of them were there.
CHAIRPERSON: And were all of these people present at the time when you confronted this person as he was sitting under the tree next to Sinangwenye's place?
MR DLAMINI: Yes, they were all present.
CHAIRPERSON: Yes, you may proceed Mr Panday.
MR PANDAY: Mr Dlamini after assaulting the victim, what did you all do with the victim thereafter?
MR DLAMINI: We released him. We told him to go. After that, after walking just a short distance, Sinangwenye asked a question, a very difficult question, that it even became difficult for us to respond and it was decided to go and call the person back.
CHAIRPERSON: What question did he pose to you?
MR DLAMINI: He said, he asked us if we thought about this very well, when we released this person, because he said he was afraid that this person would go and get other IFP members to come back and attack us as usual.
MR PANDAY: After Lucky asked the question, what did you all do thereafter in response to his question?
MR DLAMINI: Some of us went to fetch him and they brought him back and it was further discussed as to what was going to happen. Sinangwenye said the best option is to kill this person.
MR PANDAY: So is it correct that Lucky took the decision to have this person killed?
MR DLAMINI: Yes, that is correct.
MR MALAN: May I just, for my own clarity, summarise this very briefly, Mr Dlamini? Am I correct in understanding that the first decision was simply to punish him, that two of you hit him with that cane, the fishing rod cane, each gave him 16 lashes and you ordered him then to leave. He was released. As he was walking away, Lucky said something to the effect that "What happens if he comes with the Inkatha people for some revenge attack?" and suggested that it would be better that he be killed. That you then went, apprehended the person and brought him back. Is this summary correct?
MR DLAMINI: Yes, that is correct.
MR MALAN: So when he was first questioned, there was no decision to kill him then but simply to punish him.
MR DLAMINI: Yes, that was the agreement, that he should be punished and be released after the punishment.
MR PANDAY: Mr Dlamini, after the decision was taken to kill the victim, did you all take the victim anywhere else to have him killed or was he killed where you all were originally?
MR DLAMINI: Yes, we took him to another place where he was going to be killed.
MR PANDAY: Do you know what is the name of the place you all took him to?
MR DLAMINI: It was not a distance, it was just a place nearby where there were gum trees, that is where we killed him.
MR PANDAY: Mr Dlamini, is it correct that that area is referred to as Ndwedwe area?
MR DLAMINI: I can say Ndwedwe is a farm area where Lucky Ntshetha used to stay. Ndwedwe is quite at a distance from that particular place.
MR PANDAY: So the victim was going to be killed not too
from where 16 people resided, is that correct?
CHAIRPERSON: Hasn't he given evidence to that? That he was taken to a nearby gum tree plantation?
MR PANDAY: As Madam Chair pleases. Mr Dlamini, when the victim was taken to this gum tree plantation, who was it that either shot or stabbed the victim? Was it all of you, or was it one specific person?
CHAIRPERSON: Won't you stop asking leading questions? Just ask him how the deceased was killed. There is no evidence before us from the applicant that the deceased was killed through any kind of stabbing.
MR PANDAY: Yes, Madam Chair. Mr Dlamini, how was the victim killed?
MR DLAMINI: I pointed a firearm at him as I was trying to shoot him, but the firearm just locked and in that situation you were forced to get another weapon. That is when Lucky Ntshetha used a spear. That's how he killed him.
MR PANDAY: So it is correct for us to assume that you attempted to kill the victim first by shooting him but the firearm unfortunately did not fire.
MR DLAMINI: Yes, that is correct.
MR MALAN: Mr Dlamini, where was the deceased at the time? Was he being held by anybody? Was he free-standing? Was he running away? Where was the deceased when he was killed?
MR DLAMINI: He was tied to a tree.
MR MALAN: Now, do I understand you correctly that when you took him to the plantation, this was after he had been released and taken in again, you have now decided to kill him?
MR DLAMINI: Yes, that is correct.
MR MALAN: Then you took him to the gum trees and you tied him to a tree?
MR DLAMINI: Yes, that is correct.
MR MALAN: Did you tie him to the tree with his back against the tree, or with his stomach towards the tree?
MR DLAMINI: He was tied to a tree with his back on the stem of the tree and the chest was slightly bent.
MR MALAN: Why did you tie him?
MR DLAMINI: We did not want him to try to escape.
MR MALAN: But you were going to shoot him, why didn't you simply shoot him? Why did you tie him up first?
MR DLAMINI: It is because it was realised that it was very difficult to shoot him, therefore we had to use a spear.
MR MALAN: No, Mr Dlamini. Let's - please keep to the truth and if you don't tell us the truth and if eventually we don't believe you, we can't grant you amnesty, so we want the whole truth. When you tried to shoot him, was he already tied to the tree?
MR DLAMINI: Yes, he was already tied to the tree.
MR MALAN: Right. Now my question is, why did you have to tie him to a tree in order to shoot him?
MR DLAMINI: That was a place that was more like a forest, therefore we couldn't trust him because the forest was quite big and we decided to tie him to a tree so that he couldn't escape, so that we can kill him at the time.
MR MALAN: Now, when you punished him, was he tied or was he being held?
MR DLAMINI: He was not tied. We made him to lie down.
MR MALAN: Now what did you tie him with when you eventually tied him to the tree after recapturing him?
MR DLAMINI: Some wires were used.
MR MALAN: Where did you get the wires?
MR DLAMINI: They were available in the area.
MR MALAN: No, where did you get the wires, Mr Dlamini?
MR DLAMINI: In the place where was killed, there was an old house. We got those wires from that old house.
MR MALAN: So who went to fetch the wires?
MR DLAMINI: We sent a child to fetch them.
MR MALAN: Now how did you know that the child would get the wires in the old house?
MR DLAMINI: We were sure, we were certain that he was going to get the wires there because we had seen them before in this old house.
MR MALAN: And who was this child that you had sent?
CHAIRPERSON: Proceed, Mr Panday.
MR PANDAY: You mentioned that after you tried shooting the victim, Lucky brought a spear to stab the victim, is that correct?
MR DLAMINI: Yes, that is correct.
MR PANDAY: Where did Lucky get the spear from?
MR DLAMINI: That was his weapon that he was using, the one that he used to protect himself with.
MR PANDAY: Mr Dlamini, after Lucky had stabbed the victim, what was done thereafter to the victim?
CHAIRPERSON: How many times did Lucky stab the victim?
MR DLAMINI: I remember that he stabbed him about three times.
CHAIRPERSON: On which part of his body?
MR PANDAY: Did anyone else assault or stab the victim?
MR DLAMINI: I cannot remember that.
MR PANDAY: Now Mr Dlamini, after Lucky had stabbed the victim three times, what did all of you do with the victim thereafter?
MR DLAMINI: He died and he fell down and we realised that he was no longer breathing and some of us left the scene.
MR PANDAY: Can you recall which of you had left the scene?
MR MALAN: Just before you proceed with that, you say he died and fell down, was he not tied to the tree with wire?
MR DLAMINI: We had untied him at the time.
CHAIRPERSON: Now at what stage did you untie him? Did you untie him before he was stabbed or immediately after he was stabbed?
MR DLAMINI: After he was stabbed, after we had realised that he was dead and we untied him.
CHAIRPERSON: Yes. After Lucky had stabbed him three times and after you thought he was now dead, it's then that you untied him and he fell down?
MR DLAMINI: Yes, that is correct.
MR PANDAY: Mr Dlamini, getting back to our question, you mentioned that "some of us left after stabbing the victim". Can you recall who were the parties that left the area?
MR DLAMINI: We went up because on our way back the children were in front.
ADV DE JAGER: Please listen. Your counsel asked you: "Who were the persons leaving the scene after he fell to the ground?" Did you stay there? Did Lucky stay there? Tell us the names of the people who left the scene.
MR DLAMINI: Two children left before us.
CHAIRPERSON: Mr Dlamini, give us the names of the children.
MR DLAMINI: Fano and Bekho as well as Basil Ngwenye, Michael Khumalo and Sepo whose surname I have forgotten. This would also include myself as well as Lucky Ntshetha.
MR PANDAY: Sorry Mr Dlamini, just to clarify, you mentioned Fano left, Bekho left, Basil left, Michael Khumalo left and Sepo left. What happened to you and Lucky?
CHAIRPERSON: They also left. The Sepo you are referring to, would that be Sepo Nduli?
ADV DE JAGER: So who stayed behind?
MR DLAMINI: Nobody remained behind because we had all left the scene.
CHAIRPERSON: Now why didn't you tell your counsel that nobody was left at the scene? The way the question was posed to you and the way you purported to respond to it, it was as though you were still going to give us a list of those who remained behind. Suddenly you are now saying nobody was left behind.
MR DLAMINI: Nobody remained behind because we took an african path so we could not be on a parallel to each other, we had to follow one another instead on that path back home.
CHAIRPERSON: Mr Panday, you may proceed.
MR PANDAY: Mr Dlamini, after you all had left the scene of the murder, you say you had taken a path back home, is that correct?
MR PANDAY: When you and the others reached home, what took place thereafter?
MR DLAMINI: We prepared our medicine to cleanse ourselves of the bad luck.
MR PANDAY: What bad luck do you refer to Mr Dlamini?
MR DLAMINI: That is the tradition according to amaZulu that after killing, one should cleanse oneself using ntelezi to cleanse oneself of the bad luck.
ADV DE JAGER: Did you take his heart and did you eat his heart?
CHAIRPERSON: I suppose you are still leading to that Mr Panday? We'll allow you.
MR PANDAY: Mr Dlamini, after cleansing yourselves from this murder, do you know what happened to the deceased that was left behind?
CHAIRPERSON: No, what was used for the cleansing ceremony? I thought you were going to ask that question. Well, if you are not, permit me to do so. What did you use for the cleansing ceremony? What ingredients did you use for the muti that was to be used for your cleansing?
MR DLAMINI: ...(no translation)
CHAIRPERSON: There is no translation.
MR DLAMINI: We used some medicine including ntelezi.
CHAIRPERSON: Is that all you used for your cleansing?
You only used ntelezi, is that all?
MR DLAMINI: Will you please repeat the question?
CHAIRPERSON: Are you saying the only medicine that you used in cleansing yourselves was ntelezi only?
CHAIRPERSON: Do you know what ingredients were used for brewing this ntelezi?
CHAIRPERSON: Will you explain?
MR DLAMINI: Yes, I can explain. I am the one who brewed this ntelezi.
CHAIRPERSON: ...(no translation)
MR DLAMINI: I plucked it, I plucked it from the veld.
CHAIRPERSON: You used the ordinary ntelezi?
MR DLAMINI: Yes, that is correct.
CHAIRPERSON: You may proceed Mr Panday, I seem to have covered my point.
MR PANDAY: Mr Dlamini, after using this medicine to clean yourself, do you know what happened to the victim's body?
MR DLAMINI: I had already removed myself from the scene and I did not go back there.
MR PANDAY: Do you know if anybody else had gone back to the scene?
MR DLAMINI: I do not remember.
MR PANDAY: Mr Dlamini, do you recall in the trial that you appeared in, I think it was evidence was led to the effect that the heart was removed and the eyes of the victim were removed, do you know anything of that?
MR DLAMINI: What I can say is that the eyes were removed during my presence, but I cannot testify as to what happened to the heart.
CHAIRPERSON: What do you mean when you say that the eyes were removed during your presence? You have given us evidence and your evidence has never alluded to eyes being removed in your presence. At what stage were these eyes removed in your presence? I want you to give us a logical version of events, we don't have time to be going to and fro, that's why you have counsel who is there to ensure that we have proper evidence, meaning that it must be succinct and it must be properly led in sequence. Now at what stage were these eyes removed in your presence?
MR DLAMINI: The eyes were removed after we had untied him, that is after he had fallen down. The eyes were removed from him as he was lying down there, after which we left.
CHAIRPERSON: Now who removed the eyes?
MR DLAMINI: Yes, that is correct.
CHAIRPERSON: Was it the first thing that he did on the body of the accused after he had fallen down?
MR DLAMINI: Yes, that's the only thing he did.
CHAIRPERSON: What did he use to remove the deceased's eyes? What instrument?
MR DLAMINI: He used a small knife.
CHAIRPERSON: And where were the other people at the time when this removal of the eyes was being conducted by Lucky?
MR DLAMINI: Others were there, all of us were actually there.
MR MALAN: Mr Dlamini, just for your information, we have in our bundle of documents an affidavit by Lucky and on page 11 of the bundle he said that he took out only one of the eyes and someone else took out the other eye. Do you want to comment on that?
MR DLAMINI: I cannot dispute that but I am saying what I saw happen before my eyes.
CHAIRPERSON: So it is your version that what you saw happening was Lucky removing both eyes from the deceased, using a small knife?
CHAIRPERSON: And you saw no one participating but him in that gruesome act?
MR DLAMINI: I cannot recall seeing any other person.
CHAIRPERSON: Yes. Did you do anything else other than that? What else was done to the deceased's body whilst you all were there?
MR DLAMINI: Nothing else happened after that because we all left.
CHAIRPERSON: What did Lucky do with the eyes removed from the deceased's body?
MR DLAMINI: He left them on the scene next to the corpse.
CHAIRPERSON: Did you personally ask Lucky why he had done that gruesome act? Did you ask him why he was removing the eyes from the deceased?
MR DLAMINI: Yes, I did and he explained to me.
CHAIRPERSON: What explanation did he proffer to you?
MR DLAMINI: He said that he is doing this so that in the event of the police coming to take photographs, this should be such that the pictures or shadows, yes pictures of people, should not remain on the person's lenses.
CHAIRPERSON: Did you believe that explanation that was given to you by Lucky?
MR DLAMINI: I was not hearing that for the first time from him. I was used to hearing such things from other people as well.
CHAIRPERSON: So you are saying that was all that was done on the body of the deceased, whilst you were there?
MR MALAN: May I just ask on this score, if you were used to this, having heard from other people as well that the eyes be taken out so as not to show the images or imprints on the lenses, why did you ask Lucky then why he was doing it?
MR DLAMINI: I asked him because it was something that I was quite familiar with. I kept hearing such a thing from other people to the effect that an image of a person can be imprinted on a person's eyes.
MR MALAN: Are you saying that you asked him to remove the eyes or did you ask him why he had removed the eyes?
MR DLAMINI: I did not ask him to remove the eyes, instead I asked him about this thing that I had heard already.
MR MALAN: Was that before or after he had removed the eyes? When did you ask him about this imprint on the lenses?
MR DLAMINI: It was after everything had been done.
MR MALAN: Thank you. Mr Panday.
MR PANDAY: Mr Dlamini, are you now certain that after the victim was killed and the eyes were removed, nothing else was done to the victim?
MR PANDAY: Is it also correct thereafter you all went back home to cleanse yourselves of this act?
MR PANDAY: Mr Dlamini, after all was done, do you know what had become of the body?
MR DLAMINI: I would not know what happened to the corpse after we had left.
MR PANDAY: Did you know if anyone returned to the scene of the murder?
MR DLAMINI: I cannot remember that happening.
ADV DE JAGER: Do you know where the police found the corpse?
MR DLAMINI: Yes, the police found the corpse on the very same spot where we had left it, that is according to the information that I got on our arrest.
ADV DE JAGER: And the corpse was buried there in a plastic bag.
MR DLAMINI: That's news to me. I do not remember him being put in a plastic bag.
ADV DE JAGER: Wasn't that the evidence of the doctor at the trial, that they found the corpse in a plastic bag?
MR DLAMINI: What I can recall and that which was said by the Judge as well is that the deceased was mutilated and his liver was removed as well and my co-accused equally explained that they knew nothing about that, they were only hearing about that for the first time in court.
CHAIRPERSON: It in fact, Mr Dlamini, you will recall that during the trial, one of the witnesses and that is both children, Fano and Bekho, gave evidence to the fact that not only the eyes of the deceased were removed, but further that his heart was also removed and that this was cut out from the body of the deceased and cooked and eaten by all 16 of you who had participated or associated yourselves with the deceased's killing. You recall that evidence, don't you?
MR DLAMINI: Yes, I do remember that evidence very well, but I cannot say what happened to the corpse thereafter, I don't know anything about what happened to the corpse thereafter.
CHAIRPERSON: You are saying to this Committee that as far as you can recall the facts and you've been able to recall the facts quite clearly, whilst you were there, you did not notice Lucky or any of your compatriots removing any part of the deceased's body, other than his eyes, is that what you are saying?
MR DLAMINI: Yes, that is correct.
CHAIRPERSON: Are you also refuting the evidence that was led at the ...(indistinct) that you partook in the eating of the deceased's heart?
MR DLAMINI: I do not remember that. Yes, the judge made mention of that but I explained to them that I was hearing that for the first time. Eating a person, for me, no.
CHAIRPERSON: I don't want you to tell me what the judge said, I want you to tell me whether you did not participate in the eating of either the heart or the liver of the deceased. Did you? It's something that you would know, that would be within your knowledge. Did you or did you not eat a part of the deceased?
MR DLAMINI: No, I've never eaten any part of his body.
CHAIRPERSON: Now if you contend that the reason why his eyes were removed was to remove any kind of evidence that would be left for the police to follow, why then did you not ensure that the eyes are not only left next to the body of the deceased, but are destroyed, because they would then have been able to still send a trail, at least your trail amongst others, of your whereabouts?
MR DLAMINI: Yes, the eyes remained behind next to the corpse. We were not worrying about many things, so that we left the eyes there, because the place was also hidden.
CHAIRPERSON: But you left the eyes next to the corpse, did you not?
CHAIRPERSON: Now didn't you think it was one prized item that you had to ensure that it got totally destroyed, as to make sure not to leave any trail that would lead to your arrest? Wouldn't the police have been able, on discovering the eyes, even though they were no longer inside the body of the deceased, would they not have been able to still take pictures of you?
MR DLAMINI: It never occurred to us.
CHAIRPERSON: Why, if the reason for the removal of the eye is as you put it? The second step and the only step to follow thereafter would be to make sure that every evidence is destroyed that is associated with the eyes.
MR DLAMINI: I had concluded that once the eyes had been removed from his body, that would be it. It would not be easy for the police to get traces of us.
CHAIRPERSON: So the police would be able to get traces of you as long as the eyes remained inside the body of the deceased and you then speculated that the evidence would be completely destroyed by the mere removal of the eyes from the deceased's body, is that what you are saying?
MR DLAMINI: Yes, that's what I'm saying.
MR PANDAY: Mr Dlamini, are you sure that after the eyes were removed, the body was merely left by the plantation, nothing else was done to the body?
MR DLAMINI: That is correct, everything was left behind.
MR PANDAY: Nobody had in any way attempted to bury the body? Are you sure of that as well?
MR DLAMINI: No, I cannot recall any attempt to bury the corpse.
MR PANDAY: The reason I ask you this is that the doctor that gave evidence, says that the body was found in a shallow grave, in a decomposing state. You wouldn't be able to offer any explanation for the shallow grave?
MR DLAMINI: I cannot dispute or accept that, because all I did was that I left the corpse in that state.
MR MALAN: Just to make doubly sure, your evidence was that all of you left the scene. Nobody stayed behind and if I recall the sequence, you were the last to leave in the company of Lucky, those were the last two that left the scene. Is that correct?
MR DLAMINI: That is not correct.
MR MALAN: Well will you then please tell us again? You told us that everybody left. You said the two young boys left, the other three co-accused and you said that yourself and Lucky were the last names that you gave us that left the scene, but you confirmed that all of you left the scene. Tell me then, who was the last to leave the scene?
MR DLAMINI: We all left at the same time, but we were behind, but walking back home with the same group.
MR MALAN: Yes, in a footpath, I think was your evidence.
MR MALAN: Can you remember where did you walk in this sequence? Were you walking at the back?
MR DLAMINI: Yes, I was behind.
MR MALAN: Was Lucky in front of you?
MR DLAMINI: Lucky was following me from behind.
MR MALAN: Was anyone following Lucky from behind?
MR MALAN: Are you sure that Lucky was following you?
MR MALAN: Did Lucky not perhaps stay behind to bury the corpse?
MR DLAMINI: No, I cannot recall because we were chatting and smoking as we were walking back home.
MR MALAN: What were you smoking?
MR MALAN: I think somewhere in Lucky's statement he talks about smoking dagga on occasion. You were not smoking dagga on that day?
MR DLAMINI: We used to smoke dagga at any time, on that day as well.
MR MALAN: Did you smoke dagga on that day as well?
MR DLAMINI: Not at the time when we left the corpse. We were smoking cigarettes when we left the corpse.
CHAIRPERSON: Are you still going to be long because if that is so, I would propose that we break for lunch and ...(intervention)
MR PANDAY: We continue after lunch.
CHAIRPERSON: Will it be too much of an inconvenience if we were to adjourn for 30 minutes instead of an hour?
MR PANDAY: No, it's fine, 30 minutes is fine.
CHAIRPERSON: We'd appreciate that.
CHAIRPERSON: Will that not inconvenience members of Correctional Services with regard to Mr Dlamini and provision for his lunch? May we hear from the members of Correctional Services? Will that be ...? So we'll adjourn for 30 minutes and we'll resume our proceedings at twenty to two. Thank you.
CHAIRPERSON: We're now proceeding to hear the evidence of Mr Dlamini.
CHAIRPERSON: Mr Panday the ball is in your court.
MR PANDAY: Thank you Madam Chair.
EXAMINATION BY MR PANDAY: (cont)
Mr Dlamini, now we move on to after you had cleansed yourself, everyone had cleansed themselves, did any other incident take place at your residence regarding the victim that was murdered? Was anything else decided?
MR DLAMINI: Nothing happened after that. We just sat and everything was okay.
MR PANDAY: Mr Dlamini, now I ask you the most important question, please tell the Committee what was achieved, or what were you all to have achieved by killing the victim?
MR DLAMINI: Our problem is that he was an IFP member.
MR PANDAY: I understand you say it was that he was an IFP member, but what were you to have achieved by killing this IFP member? How did it help your group, your community?
MR DLAMINI: We would not have achieved anything except for our safety.
MR PANDAY: And when you talk about achieving your safety, how did this victim affect your safety?
MR DLAMINI: He affected our safety because we did not trust him.
MR PANDAY: Tell me, did you and the others know the victim?
MR DLAMINI: Makashleni was the one person who knew the deceased.
MR PANDAY: Who is Makashleni? Was he known by any other name?
MR DLAMINI: That's the only name by which we knew him in the area.
MR PANDAY: I'm going to ...(intervention)
CHAIRPERSON: Was he one of the accused in the trial that you had?
ADV DE JAGER: Was he one of your group of 16?
MR DLAMINI: Yes, he was part of us.
ADV DE JAGER: So you said he knew the deceased?
MR DLAMINI: Yes, he knew him very well.
ADV DE JAGER: Where is this man now, do you know? Did he stay with you, Makashleni?
MR DLAMINI: I left him at a place where we resided.
ADV DE JAGER: What did he tell you about this man? What was this man's name?
MR DLAMINI: He did not mention his name, save to say he knew the person. He was hiding in a sheepskin.
ADV DE JAGER: Who was hiding in a sheepskin, the deceased?
MR DLAMINI: Yes, the deceased.
ADV DE JAGER: So you didn't inquire about the name of the deceased and to which party he belonged, because Makashleni could tell you all about it?
MR DLAMINI: Makashleni did mention that this person was an IFP member and he had known him for a very long time.
ADV DE JAGER: Now, in the affidavit by Lucky, he stated that
"The stranger was questioned"
"as to why he was in the area and where was he from."
MR DLAMINI: Yes, that is correct.
ADV DE JAGER: And later on in paragraph 18
"I honestly don't remember the name and the surname of the victim. It is true he told us his particulars during torture, prior to his death."
Did he in fact tell you his particulars, his name and where he was from?
MR DLAMINI: He did not give us his details.
ADV DE JAGER: But Makashleni could give you all the details?
MR DLAMINI: Yes, Makashleni knew him very well, but then the only information that we got from Makashleni was that this person was known to him to be an IFP member.
ADV DE JAGER: Did Makashleni also attend the cleansing ceremony?
MR DLAMINI: No, he was not present.
ADV DE JAGER: Did he stay with you at the same shacks?
MR DLAMINI: Yes, he was a resident in the area.
ADV DE JAGER: Was he one of the 16 members who held this gathering, or who came together and decided to kill this man?
MR DLAMINI: No, he was not part of the group of 16.
ADV DE JAGER: Was he present at all on the day of the killing?
MR DLAMINI: He came in the middle of discussions.
ADV DE JAGER: Did he also interrogate the deceased, asking him questions?
MR DLAMINI: No. He did not ask him any question.
ADV DE JAGER: Was he present when you asked him the questions?
MR DLAMINI: He came after we had concluded asking him questions.
ADV DE JAGER: Before you released him or after you had released him and recaptured him?
MR DLAMINI: He came at the time when we were punishing him.
ADV DE JAGER: And when you tied him to the tree was he present?
MR DLAMINI: No, he had already left at the time.
CHAIRPERSON: Mr Panday, let's come back to you. I think you were still pursuing your questioning with regard to what political objective was sought to be achieved by the applicant, by killing the deceased. You may proceed.
MR PANDAY: Mr Dlamini, when I asked you what your objective was to achieve by the killing of the victim you said that we did not trust him, now what was there not to trust in him?
MR DLAMINI: I did explain that he was a member of the IFP, him being so, so that we did not trust him, fearing that he might come back with other IFP members to attack us.
MR PANDAY: Now, I must ask you, your fear that he may come back with other IFP members to attack you, when did this fear arise? Was it when you all released him, or before you all released, or when you apprehended him? When did you all have this fear?
MR DLAMINI: This occurred to us after we had disciplined him.
MR PANDAY: Now Mr Dlamini, besides the fact that he may come back with other IFP members, was there any other fear he posed by virtue of the fact that he was an IFP member?
MR PANDAY: What are those fears, Mr Dlamini?
MR DLAMINI: They came one evening at 12 and shots were fired just down the street and they kept advancing, such that we fled and took refuge in the veld where we slept and only came back on the following morning. Our belongings had been destroyed but we continued staying there.
CHAIRPERSON: Has your question been answered Mr Panday, is he not repeating his earlier fear, because what seems to be repeated to me is that he is still repeating his fear of having to be subjected to retaliatory attacks and there is no other fear that he has evidenced to.
MR PANDAY: Yes, he hasn't answered my question, I will pursue until I get a reasonable answer.
CHAIRPERSON: Do you have probably other instructions which would suggest that there were more fears than he has already given testimony to and that's why you are pursuing that line of questioning?
MR PANDAY: That is correct, Madam Chair.
CHAIRPERSON: Maybe try and phrase it in such a way that he can speedily come to what you want him to say.
MR PANDAY: Mr Dlamini, did the victim pose any threat to the community in your area?
CHAIRPERSON: Other than having to be subjected to attacks from the IFP members, is that what you are asking him?
MR DLAMINI: He was problematic in addition to what explanation was given. They also killed one of us and they'd indicated that they were going to wipe us out one after another and they were going to do it such that it would look like we'd been hit or knocked down by a car and they also wrote a letter to my father indicating that my father had given birth to comrades and therefore his lifespan would be short.
CHAIRPERSON: Who are you referring to in particular in the IFP who wrote the letter to your dad about yourself?
MR DLAMINI: I'm talking about the IFP leader at Shayamoya.
CHAIRPERSON: Is that where the deceased came from?
CHAIRPERSON: And what was the name of this leader?
MR DLAMINI: Mashinela is the name.
CHAIRPERSON: Did this name feature during your interrogation of the deceased? Did you ask him if he knew Mr Mashinela? Did he then admit to knowing Mr Mashinela, if you did ask him?
MR DLAMINI: That is when he started becoming evasive. He did not want to admit to us whether he knew Mashinela or not. We knew he knew him because he came from that place.
MR MALAN: Sorry, just before you proceed. How did you know he was coming from that place if he didn't admit to it and if he didn't want to give you any of his details?
MR DLAMINI: We were quite sure that he was coming from that area. We knew as well that Mashinela used to instruct people to kill ANC members.
CHAIRPERSON: What you are basically saying is that you speculated that he came from that area, you couldn't have known that for sure.
MR DLAMINI: I am saying he was residing from that area because he too mentioned that. There was only one Shayamoya in Tongaat and the IFP were our enemies, each time we met we would exchange gunfire.
MR MALAN: Just before you proceed, Mr Panday please. Mr Dlamini, you were asked by Mr de Jager when he referred you to the affidavit by Lucky and you said when you were asked whether he told you his particulars, you answer was: "He did not give us his details." Now what details did he give you? Let's get this clear so we know where we stand. Did he tell you anything about himself?
MR DLAMINI: I explained earlier on that we questioned the deceased and he confessed his IFP membership to us, but then he did not want to reveal the name of his leader and he indicated that his leader would inform them that they should not mention his name each time something happened.
MR MALAN: Please listen to my question. Did he tell you anything about his details, or did he only tell you that he was IFP?
MR DLAMINI: He told us that he was an IFP member.
MR MALAN: Yes, did he tell you anything else about himself?
MR DLAMINI: I cannot remember him telling us anything else.
MR MALAN: Now I want to ask you a few specific questions. Did you torture him during the interrogation? When you asked him questions, did you hit him?
MR DLAMINI: During the questioning we did not assault him.
MR MALAN: You didn't beat him, with fists?
MR DLAMINI: Not at all. We didn't even touch him.
MR MALAN: You didn't even touch him? Are you sure about that?
MR DLAMINI: Yes, I am sure about that.
MR MALAN: Now if I tell you that in the affidavit of Lucky, on page 11, in paragraph 18, Lucky says
"It is true, he told us his particulars during the torture, prior to his death."
MR DLAMINI: When he was assaulted - he was assaulted when he was being disciplined and even - but at the place where he was caught, nothing was done to him, he was just taken somewhere else.
MR MALAN: Yes but, listen to my question. Lucky says that he told you his particulars. Is Lucky lying, or is Lucky telling the truth?
MR DLAMINI: Yes, Lucky is telling the truth.
MR MALAN: Now why are you telling us that he did not tell you his particulars? Are you lying or are you telling the truth?
MR DLAMINI: What I'm saying is this, I am actually referring to the very first time when we approached him, he was never touched. In my room where he was being investigated, he was never touched. He was only assaulted or tortured during the discipline.
MR MALAN: Yes, he wasn't tortured, he was only disciplined, that's what you told us. He had 16 cuts from two of you, you administering the first 16 cuts with the rod, that's what your evidence was, is that correct?
MR MALAN: But you didn't question him then, you simply disciplined him and you released him.
MR DLAMINI: At that time he was being questioned by the other people. There was chaos, there was a lot of noise and I couldn't hear everything, you would only hear what you were saying at the time because everyone was posing a question.
MR MALAN: Did he tell you that he came there to kill Lucky?
MR DLAMINI: That is something that he mentioned later, before he was taken to be killed.
MR MALAN: Did he tell you who sent him?
MR DLAMINI: I did not hear anything about that.
MR MALAN: Lucky says in his affidavit that this deceased told you that he had been sent as an IFP hit man by Lucky's brother, to kill Lucky. Is that true, or is it not true? Did you hear that?
MR DLAMINI: Yes. I cannot remember everything.
MR MALAN: You have no recollection of him telling you that he was an IFP hit man, sent by Lucky's brother, to kill Lucky? You can't recall such statement by the deceased?
MR DLAMINI: It used to happen that his brother would send IFP members and when the deceased was talking, there was a lot of noise, you wouldn't grasp everything, you wouldn't hear everything that the people were uttering.
MR MALAN: I just have one question. You're in Durban Westville?
MR MALAN: Lucky is also in Durban Westville?
MR DLAMINI: We are at different places.
MR MALAN: Is he not in Westville prison?
MR DLAMINI: No, he is in Ncoma.
CHAIRPERSON: Mr Panday, you may proceed. You are still pursuing ...(intervention)
MR PANDAY: Mr Dlamini just to clarify something, were you sentenced to Westville Prison all this time?
MR PANDAY: Where were you sentenced to?
MR DLAMINI: I was in Watervan Prison.
MR PANDAY: And when did you come to Westville Prison?
MR DLAMINI: I arrived on Wednesday.
MR PANDAY: Now Mr Dlamini I'm going to ask you one more time, I want you to think very carefully about the answer you're going to give to me and the Committee Members. You mentioned that the IFP members were coming to attack the ANC members and the ANC members would have to defend themselves or maybe attack the IFP members. Do you know why the IFP members were coming to kill the ANC members in the area? Do you have a reason? Do you know specifically why that was happening?
MR DLAMINI: Yes, I do know the reason.
MR PANDAY: Tell us that reason.
MR DLAMINI: The reason is that IFP were our enemies, we were not in good terms with IFP. When they were attacking they killed my brother, Mdo, who was an MK member. That is when we got very angry as ANC people. Same day in the evening we also attacked them. That is when this whole thing started and it went further up until today.
MR PANDAY: Do you know what the IFP hoped to accomplish by killing your brother Mdo.
CHAIRPERSON: When was he killed, Mr Panday?
MR PANDAY: Mr Dlamini, firstly, when was Mdo killed by the IFP?
MR DLAMINI: Mdo was killed in 1992.
CHAIRPERSON: In what area? Is it in the same area?
MR DLAMINI: He was killed in the IFP territory.
CHAIRPERSON: Which is what area?
MR PANDAY: Do you know what Mdo was doing in the IFP territory?
MR DLAMINI: Mdo had a girlfriend there.
MR PANDAY: Was Mdo's girlfriend IFP?
MR PANDAY: I am going to ask you again. What did the IFP accomplish or hope to accomplish by killing Mdo?
MR DLAMINI: I also do not know as to what is it that they were going to achieve because they were famous, or rather popular IFP leaders there who had a meeting.
MR PANDAY: Mr Panday, maybe we don't understand what you are trying to elicit from your witness. Hasn't you answer been responded to by Mr Dlamini, by stating that there were continual fights between the ANC and the IFP? Do you need more than that? Doesn't that give you the political context of what was happening at the time? Do you need far much more than that?
MR PANDAY: No, Madam Chair, it's fine. Now Mr Dlamini, after the killing of the victim you were arrested and then charged for the murder of the victim as well as the possession of a firearm, is that correct?
MR DLAMINI: Yes, that is correct.
MR PANDAY: Is it also correct that you were convicted on these two charges?
MR DLAMINI: Yes, that is correct.
MR PANDAY: Is it further correct that you received an 8 year imprisonment sentence for the murder of the victim and a one year imprisonment sentence for the possession of the firearm?
MR DLAMINI: Yes, that is correct.
MR PANDAY: Duly giving you a 9 year imprisonment sentence?
MR DLAMINI: Yes, that is correct.
MR PANDAY: Mr Dlamini, how many years thus far have you served of the sentence?
CHAIRPERSON: Mr Panday, is that information relevant for purposes of us deciding whether to grant him amnesty or not? If not, I would request you not to complicate our lives by leading irrelevant evidence.
MR PANDAY: As Madam Chair pleases.
MR MALAN: Mr Panday was he not also convicted of possession of ammunition and sentenced for 3 months to run concurrently with the sentence on the possession of the firearm?
MR PANDAY: We believe that is the position.
MR MALAN: That is indeed so from the record.
CHAIRPERSON: That has already been covered, I think, right at the initial stages of our proceedings.
MR PANDAY: Mr Dlamini, to summarise your application for the amnesty...(intervention).
CHAIRPERSON: May I interpose? Before you can summarise his application, have you led any evidence with regard to his application for amnesty in respect of the unlawful possession of a firearm and ammunition? We don't have that evidence. Where were these weapons, I mean where was this weapon obtained, and what about the ammunition?
MR PANDAY: As Madam Chair pleases. Mr Dlamini we have heard your evidence so far as it related to the killing of the victim. Now I'm going to ask of you to disclose to the Committee firstly, how did you obtain the firearm that you used or attempted to use in the murder of the victim?
MR DLAMINI: This firearm, I obtained it from the deceased, the one of ANC, he had pointed out to me where he used to keep his weapons. He told me that if I ever need something I would get it there.
MR PANDAY: What is the name of this deceased person who told you of the firearm?
MR PANDAY: Are you referring to your brother?
CHAIRPERSON: Is that your brother?
MR DLAMINI: No, he is not my blood brother, but he is my brother because we were in the same organisation.
CHAIRPERSON: Haven't you given evidence that Mdo was your brother who was killed at Shayamoya because of the conflict between the ANC and the IFP?
CHAIRPERSON: Are you now saying that you made a mistake when you said he was your brother, you meant brother in the sense of him being a member of the ANC?
MR DLAMINI: Yes, that is correct.
CHAIRPERSON: Well, you actually left a very wrong picture in our minds, I must tell you, because we are now of the opinion that your evidence was talking to the fact that that Mdo was your brother, you didn't say a member of the ANC, or a colleague or a compatriot was killed, you said your brother, leaving an impression and suggesting that it was your own brother, your personal brother, not your brother by virtue of belonging to the same political organisation. Now how did he come to tell you about that firearm?
MR DLAMINI: We would stay with him most of the times in our area, he used to be one of us, we would be together throughout, even on that particular day when he was about to visit his girlfriend on a Saturday, he told me and the following day was going to be a Sunday and that is when he died.
CHAIRPERSON: Are you saying that throughout the many years, or many months that you knew him, you were fortuitously told by him a day or so before his death, about where you could obtain this gun? Is that what you want us to believe?
MR DLAMINI: The way we were so close and the other comrades who were with us, he brought some, he pointed out some weapons and he showed myself and the others and he told us that if we happen to encounter some problems, we should use them for protection.
CHAIRPERSON: And this was done a day of so prior to his death?
MR DLAMINI: Yes it happened just before he died.
CHAIRPERSON: And this was a member of the ANC and he participated in all the activities that your formation participated in during his lifetime? That is correct, is it not?
MR DLAMINI: We were working together with him.
CHAIRPERSON: Now did he not at any stage, whilst being a member of your formation, and this was a small formation from the evidence you have given, did he not use these weapons and did he not disclose to the other members their existence?
MR DLAMINI: He was always armed all the time protecting himself.
CHAIRPERSON: Was he the only one who had possession of a firearm in your formation?
MR DLAMINI: He is the only person who had a lot of firearms, because others, we did not have the firearms we were using some home made guns that we used to buy for R30-00 from ordinary people.
CHAIRPERSON: Mr Panday, proceed.
MR PANDAY: Mr Dlamini, you just mentioned that he was the only one who had a firearm and you used to buy some home- made guns for R30-00, now on the day that you tried to shoot the victim, with what sort of gun did you try to shoot the victim? A home-made firearm, or a real firearm?
CHAIRPERSON: It's a real firearm. Don't we have that evidence Mr Panday? Yes. What - the evidence that we need is to show that this firearm was used for pursuing the political objectives that they sought to pursue.
MR PANDAY: Mr Dlamini, you mentioned to us that the firearms you would have got is the one Mdo showed to you, where to get it from. Now what was the purpose of Mdo showing you where these firearms were kept or hidden?
MR MALAN: Can't we just find out where they were kept or hidden? Isn't that important?
MR PANDAY: Yes, Mr Chairman. Mr Dlamini, where were these firearms kept?
MR DLAMINI: They were buried somewhere.
CHAIRPERSON: Whose premises were those? Please just give us full information.
MR DLAMINI: He had buried them in his premises just next to his door. There was a box that he had made and he put those weapons in that box and buried the box.
CHAIRPERSON: Was it the first time that you had used that firearm?
MR DLAMINI: No, I was not using it for the first time.
CHAIRPERSON: Was that firearm used for purposes of pursuing the objectives of fighting with the IFP at Shayamoya?
MR DLAMINI: Yes, that was used, that was for the very first time.
CHAIRPERSON: Did you use the firearm for purposes of attacking members of the IFP at Shayamoya? Did you personally use the firearm prior to this incident? Did you ever use the firearm for purposes of attacking IFP members at Shayamoya, that you had this conflict with as ANC members.
MR DLAMINI: No, that was never used before by myself.
CHAIRPERSON: Thank you Mr Panday.
CHAIRPERSON: Mr Dlamini, with the firearms, was there ammunition provided?
MR MALAN: I'm not following your question Mr Panday, can you repeat that please?
MR PANDAY: Where they obtained the firearms ...(intervention).
MR MALAN: Well is he talking about one firearm, or are we talking about more firearms? What are we establishing?
MR PANDAY: Mr Chairman, the applicant mentioned that a box was buried with firearms.
MR MALAN: That right. Did he take out the box? We have only evidence about the one. Can we find out about the other arms? Who had them? What happened to them?
MR PANDAY: Mr Dlamini, when you all discovered the firearms, how many firearms did you take?
MR DLAMINI: He pointed out to me and I took a look at them and I took only one firearm and I stayed with that one, I left the others in that hole.
MR PANDAY: Mr Dlamini, you say you left the other firearms in the hole, did you cover the hole, or were they just left open or visible, for others to find the firearms?
MR DLAMINI: I covered the others.
MR MALAN: May I ask you, Mr Dlamini, why did you not tell Lucky that there were other weapons? Mdo is dead. He told you about his arms cache, why did you not tell Lucky, "Let's go and fetch these weapons. We can fight the IFP with them, then everybody's got a firearm"?
MR DLAMINI: There was no reason yet, or incident yet that had happened that could make me tell Lucky about the firearms.
MR MALAN: Did you not say Lucky was your leader?
MR DLAMINI: Yes, that is correct.
MR MALAN: Did you not say you had to take orders from Lucky?
MR DLAMINI: Yes, that is correct.
MR MALAN: Now if you find a lot of firearms, don't you tell you leader?
MR DLAMINI: The situation is like this. We used to tell him about our problems, not of our secrets concerning the weapons, because we couldn't trust one another as far as the weapons were concerned.
MR MALAN: Are you saying you didn't trust Lucky as far as weapons are concerned?
MR DLAMINI: A weapon is something that is taken very serious, to such an extent that I can show it to the other person and during my absence the person would come back and steal that firearm.
CHAIRPERSON: Are you suggesting that everything was quiet in your area, that there was no need for you to have discussed with Lucky about this arms cache, nor even disclose to the other members of your formation about your knowledge that there could be useful weapons that could be used in averting attacks, that would have come from the IFP? Are you saying things were that peaceful, that there was no need for you to have discussed this arms cache with the leader or any member of your formation?
MR DLAMINI: Mdo was still alive at the time and I did not know anything about the firearms, that was Mdo's secret only and just before his death he pointed out to me where the firearms were and he even told me not to tell just anyone because firearms are trouble and those were not South African weapons. For those reasons, Lucky knew only the firearm that I used to be armed with and the others knew that firearm, but those that were buried, they knew nothing about it, they only knew about them afterwards, after Mdo's death, when during the attack.
ADV DE JAGER: Could we clear that up perhaps?
CHAIRPERSON: Yes, I'm still proceeding, I'll give you a chance Mr de Jager. Now when you say these firearms were not of local origin, what make were they? Are you able to shed more light on that?
MR DLAMINI: Like and AK47 is not a South African make.
CHAIRPERSON: Now the firearm that you took out from the box, what make was it?
MR DLAMINI: The one that I took from the box was a small one, 9mm.
CHAIRPERSON: Now is that the firearm that you used, you attempted to use on the deceased?
MR DLAMINI: Yes, that is correct.
ADV DE JAGER: Wasn't the firearm that you attempted to use on the deceased, a home made gun which had a spring and the spring wasn't working?
MR DLAMINI: That home-made gun, I did not know a thing about it, I only saw it when the police brought it at the police station, they did not get that from me, when they got me there was no firearm. That home-made arm with R1 bullets came with the police and I never used an R1 in my life.
ADV DE JAGER: What happened to the deceased's gun?
MR DLAMINI: It was taken by Lucky Ntshetha.
ADV DE JAGER: Did that gun have bullets?
MR DLAMINI: Yes, there were two bullets inside.
ADV DE JAGER: So when your gun didn't fire, why didn't they use that gun to shoot him?
MR DLAMINI: That firearm was in Lucky Ntshetha's possession and he did not trust that firearm.
ADV DE JAGER: Was Mdo killed before or after you killed the deceased in this matter?
MR DLAMINI: This conflict started after Mdo's death, after Mdo's killing.
ADV DE JAGER: Another thing, did you know of any personal hatred between Lucky and the deceased?
MR DLAMINI: I cannot say that there was a personal grudge or something because Ntshetha regarded IFP as an enemy just like myself. The aim was to kill that person, that's all.
ADV DE JAGER: Yes see, because in these documents of ours we find a written document and there's a signature beneath it, your signature. Can you remember such a document? On page 8. The document is not in your handwriting, so I presume it's information that you might have given to a warder or somebody to write down and you've only signed the document afterwards and in that document it is stated
"Then later on we get that the deceased was not aiming to kill Lucky Ntshetha, he has a natural hatred for the deceased."
Can you remember telling anybody that?
MR DLAMINI: Someone was asking me and I told that person that that was discussed after we were sentenced, that was discussed by Basil Ngwenye and he was just speculating, he was not sure. He got that information from the other people making such utterances.
ADV DE JAGER: So afterwards, you weren't sure and Basil wasn't sure whether it was in fact a political murder or something to do with the IFP or whether it was personal between Lucky and the deceased?
MR DLAMINI: Basil knew very well that the deceased was an IFP member. He took something that was being said by the other people, people who were not from our area.
ADV DE JAGER: You yourself, what did you believe at the stage when you had killed, or assisted in the killing of this man, what was your belief about the deceased and his political objectives?
MR DLAMINI: What I would think of at the time was very bad because they did something very bad or painful to me and even when I was arrested, they did something very bad to me. There was no way that I could sympathise with him.
ADV DE JAGER: Right thank you.
CHAIRPERSON: Mr Panday you are still proceeding with his evidence-in-chief with regard to the offence of the unlawful possession, firearm and ammunition? Try and show us that that is an act associated with a political objective. Have you exhausted your evidence-in-chief?
MR PANDAY: No, Madam Chair. Mr Dlamini, when Moses told you about the firearms that were buried, Mdo, sorry Mdo told you about the firearms that were buried, do you know why he told you where you could find these firearms, or did he have a reason for telling you where you could find these firearms?
MR DLAMINI: Mdo told me but I did not know the reason for him to tell me about these firearms, but he called me and he pointed out the firearms to me and I saw them and the following day he died.
MR PANDAY: Now after Mdo died, you went and helped yourself to the firearm. What was the purpose of you helping yourself to the firearm?
MR DLAMINI: The purpose, I had to give the other comrades some of the firearms, I had to give them to the comrades who - the comrades were with me when we were going to attack the IFP members.
CHAIRPERSON: Are you certain of that? I thought not a few minutes ago, you said that you were the only person who had access to that arms cache and you did not disclose to any of your members, not even to your leader about the existence of such a catch and that you only helped yourself to one firearm, that being a 9mm pistol. Now you are saying something different to what I earlier on understood you to be saying. You are now saying that you distributed the arms cache disclosed to you by Mdo, to your fellow members of your formation when you had to go and launch an attack against the IFP subsequent to his death, is that what you are saying?
MR DLAMINI: Yes, that is correct. That was just before all these things, there was no reason for me to distribute the firearms without any problems. I only distributed the firearms after comrade Mdo was killed because we wanted to go and revenge and no one was arrested for Mdo's death.
CHAIRPERSON: Was Lucky one of the persons who was present when you had to launch these retaliatory attacks against the IFP after Mdo's death?
MR DLAMINI: Yes, he was present.
CHAIRPERSON: Did you not discuss with him about the existence of such an arms cache?
MR DLAMINI: I told him before going there to that place, I told him that I had some firearms that I was about to distribute.
CHAIRPERSON: How long before this incident for which you see amnesty, did you distribute these firearms?
MR DLAMINI: I told him just after Mdo's death.
CHAIRPERSON: My question is, how long before the deceased was killed, did you distribute the firearms to members within your formation?
MR DLAMINI: The death of - this incident of the killing of this person was among the last events.
CHAIRPERSON: Was that 2, 3, 6 months ago? I'm trying to put a time span.
MR PANDAY: Madam Chair, if I could just rephrase that question?
MR PANDAY: Mr Dlamini, when was Mdo murdered?
MR PANDAY: What month in 1992?
MR DLAMINI: I cannot remember.
MR PANDAY: Now how, to your recollection and try and recollect as best you can, the incident for which you seek amnesty happened in September of 1992.
CHAIRPERSON: November/December of 1992. Now when did Mdo get killed? Was that a few weeks before this incident happened, or was it a few months, was it a year? Are you not able to give an approximation?
MR DLAMINI: I cannot remember the date, but all I can remember is that it was in 1992 and it was on a Saturday and Mdo died on a Sunday and he had disclosed the arms cache on a Saturday and he died on a Sunday.
CHAIRPERSON: I seem to have a recollection that you said something about the 2nd of February. Wasn't that the date you stated as having been the date when Mdo died?
MR DLAMINI: Yes, that is correct.
CHAIRPERSON: There was a reference to February 1992 which was made. I seem to recollect, I didn't make a particular note thereof. It was strange that you could recollect the date as well as the month of an innocuous incident.
MS MTANGA: Chairperson, my voice is gone. I'm sorry I've ... my voice is gone.
CHAIRPERSON: Yes. How are you going to talk to us Ma'am with laryngitis? Did you want to assist us? Maybe Ms Kolane can come to your assistance. Just read out what you would have wanted to say to us.
MS MTANGA: Sorry Chairperson, they moved to the new area on the 2nd of February 1990.
CHAIRPERSON: Yes, thanks. Are you not able to give us any reference with regard to this approximation in terms of telling us whether this happened in summer, when it was raining, this happened in winter, or this was in fall? You are not in a position to give an approximation.
CHAIRPERSON: When Mdo was killed?
CHAIRPERSON: Now if you say that was in summer, was that at the middle of summer which we know to be around November, or was it towards the end of summer which we know to be towards February?
MR DLAMINI: I did not take note of whether it was towards the end of the season or what, I did not take note of that.
CHAIRPERSON: And neither are you able to tell us whether it was a long, long time ago, after Mdo had passed away, when you distributed the arms cache to members within your formation? You are unable to give us even that indication?
MR DLAMINI: Mdo's killing, we attacked on the very same day of Mdo's killing.
CHAIRPERSON: How long do you think, after you had distributed these firearms, did you collect them from
members within your formation, to return them to the case from which you had taken these firearms?
MR DLAMINI: I managed to collect some of them and other firearms were taken by the other comrades.
CHAIRPERSON: Was that the only incident that these firearms were used by members within your formation, that is in retaliation to Mdo's death? Was that the only incident when you used these firearms?
MR DLAMINI: Yes, that is the only incident that I can think of.
CHAIRPERSON: And in your case you retained the 9mm pistol? You retained it in your possession?
MR DLAMINI: Yes, that is correct.
CHAIRPERSON: Proceed, Mr Panday.
MR MALAN: Just before, sorry Chair, before Mr Panday proceeds. When the deceased was found guilty of the illegal possession of a home made gun, not a 9 mm pistol, furthermore the applicant was also found guilty of possession of one SSG shotgun capsule, or whatever you call them, "patroon", now the applicant here in his evidence made reference to having no knowledge about an AK47 or something, that that was the first time, that was a false accusation, but that was not the charge. The charge was a home-made shotgun and one SSG bullet. Now does he have any knowledge of those items and can he explain it to us? If he can't, we can't help him, Mr Panday and you know that.
MR PANDAY: Mr Chairman, just to clarify the point about the AK47, I think what the applicant did say, with the arms cache was an AK47, that's not a local made firearm.
MR MALAN: But he said he took a 9mm pistol, he didn't say he took a home made shotgun and the question that you led in the beginning was to tell us about the firearm that he had in his possession, for which he was found guilty.
MR PANDAY: Mr Dlamini, ...(intervention).
CHAIRPERSON: Before you proceed, Mr Panday, are your instructions that Mr Dlamini was in possession of a home- made firearm?
MR PANDAY: Yes, Madam Chair, I understood it he discovered a ...(indistinct) that's the home-made firearm.
CHAIRPERSON: Yes, but those were instructions. Obviously you are aware that the evidence before us is pointing to something completely different.
MR PANDAY: To that of an arms cache, Madam Chair.
CHAIRPERSON: Well, to be pertinent, it was a 9mm. He says he was in possession of a 9mm and that is the pistol that he attempted to use on the deceased.
MR PANDAY: I accept what Madam Chair is trying to say.
CHAIRPERSON: Yes, I just wanted to find out if you were actually asking questions which are within your mandate, as the instructed attorney, because if that is not so, we would afford you an opportunity of a short adjournment to clear that issue with your client, because I think you can see that putting questions, if you don't have instructions which are pertinent to the issue that we must cover for purposes of amnesty and bearing in mind obviously that he is convicted of being in possession of a home made gun and not in possession of a 9mm pistol.
CHAIRPERSON: Do you want to be afforded an opportunity?
MR PANDAY: Madam Chair, may we stand down for 5 minutes.
MR MALAN: Just before we, Chair with your permission, may I also ask you on your return, or during the break, to clarify with the applicant the first part of his evidence where he said he took, I think he said the 9mm, he took a gun from that arms cache and we're not sure whether this is the home-made gun or the pistol now, but he also told us then in the beginning, in his evidence-in-chief as you led it, that he did not tell any of the others, specifically not even Lucky and I questioned him on that and he said that Lucky could not be trusted, then suddenly a little later on emerges evidence that he distributed those guns. Can we have - can you also clear this with him please?
ADV DE JAGER: While we're at clearing things, I asked him whether he had a home-made gun and he said he knows nothing about it, it was - he heard for the first time in the court about it, he never possessed it.
CHAIRPERSON: We'll adjourn for 5 minutes and we'll return at 10 past 3.
CHAIRPERSON: We hope that you've been able to use the 10 minute adjournment appropriately and you will now be able to redirect these proceedings to the course they should be taking. Over to you.
MR PANDAY: Thank you Madam Chair.
EXAMINATION BY MR PANDAY: (cont.)
Mr Dlamini, during the leading of your evidence, you've led evidence about an arms cache and you also led evidence about the murder of Mdo. Now I am going to ask you certain questions that will pertain to the arms cache, to Mdo and as well as the conviction that you received as a result of the murder of the victim, more specifically related to the type of weapon you were convicted of having as well as the ammunition that was allegedly found. Now let's go now to the murder of Mdo. Right?
In your evidence you mentioned that there was an attack on the IFP from your side and your members, as a result of the murder of Mdo. Now I ask you again can you recall approximately when was Mdo murdered?
MR DLAMINI: Mdo was killed on a Sunday if I still remember very well, but I cannot recall what month it was.
MR PANDAY: Are you sure that you cannot recall the month, or from the year, how many months was it in the year that he was killed? Can you recall that? From the beginning to the time he was killed, can you recall how many months had gone by?
MR PANDAY: You understand, it is 3 months from the beginning of the year, is that correct?
MR PANDAY: So would it be safe for us to assume that it was in March...(intervention).
ADV DE JAGER: Okay, we've worked that out, Mr Panday. He won't be able to give you an answer on that.
MR PANDAY: As the Chair... Now Mr Dlamini, you mentioned that you were told of an arms cache by Mdo. Is that also correct?
MR DLAMINI: Yes, that is correct.
MR PANDAY: You also mentioned that when Mdo was attacked, your members took retaliation on the attack of Mdo, is that also correct?
MR PANDAY: Now, what weapons did your members use in the attack on the IFP members?
MR DLAMINI: I had a 9mm pistol.
MR PANDAY: And what weapons did the other members have?
MR DLAMINI: They had other firearms, including these home- made firearms.
MR PANDAY: Now Mr Dlamini, this 9mm pistol, was it used in retaliation of the attack on Mdo?
MR DLAMINI: Yes, it was used on this revenge attack for the death of Mdo.
MR PANDAY: Now Mr Dlamini, I'm going to take you now to when you were convicted for having a home-made firearm, that was used in the murder of the victim. Now firstly, in your evidence you mentioned that you tried to shoot the victim with a firearm. What firearm did you try and shoot the victim with, a 9mm or?
ADV DE JAGER: ...really that's the crux of the matter.
MR PANDAY: Mr Dlamini what firearm did you use to try and shoot the victim?
MR DLAMINI: I used the home-made firearm.
MR PANDAY: Is that what you refer to as "kwasha"?
MR PANDAY: And where did you obtain this "kwasha" from?
MR PANDAY: How much did you pay for this "kwasha"?
MR PANDAY: Mr Dlamini, how long did you have this "kwasha"?
MR PANDAY: And what did you have this "kwasha" for?
CHAIRPERSON: Elucidation, Mr Panday. When did you buy this firearm? It's important for us to know.
MR PANDAY: Okay. Mr Dlamini, when did you buy this firearm?
MR DLAMINI: Around 1990 I had this firearm.
CHAIRPERSON: For what purpose did you buy it?
MR DLAMINI: For self-protection.
CHAIRPERSON: Self-protection against what? Against common criminals?
MR DLAMINI: Many things, during fights, in case I'm attacked and so on.
CHAIRPERSON: Have you dared to take that up, Mr Panday?
MR PANDAY: Mr Dlamini, you mentioned that during fights and when you were attacked. When you were attacked by whom? Or who did you fear from being attacked by?
MR DLAMINI: There was fighting going on around my place of residence.
CHAIRPERSON: Mr Dlamini, what do you mean by the fact that there were fighting going on? Are you talking about criminal fighting, where people would fight for criminal purposes? What are you referring to by these fighting? Are you alluding to the political conflicts, or just mere criminal activity that usually exists in any given place in this country?
MR DLAMINI: I would say that the IFP and the ANC were not in good relations in our area.
MR PANDAY: So Mr Dlamini, are you trying to say to us that you were trying to avoid, or defend yourself from attacks from the IFP members?
CHAIRPERSON: That's what he's saying.
MR PANDAY: Mr Dlamini, now when you were giving evidence regarding the arms cache and in relation to this application for amnesty, the 9mm you referred to during your evidence, was it at any stage used when the victim was murdered?
MR DLAMINI: No, it was not used.
ADV DE JAGER: Are you applying for amnesty in regard to the 9mm pistol?
ADV DE JAGER: For what are you applying, for which weapon are you applying for amnesty?
MR DLAMINI: The 9 mm was only involved when the revenge attack was conducted after the death of Mdo.
ADV DE JAGER: Are you applying for amnesty with regard to the weapon for the possession of which you were convicted, or are you applying for the amnesty in connection with the weapons which you found in Mdo's place?
MR DLAMINI: No, I am seeking amnesty for the death of this IFP member, not weapons.
CHAIRPERSON: Proceed, Mr Panday.
MR PANDAY: Mr Dlamini, when you tried - when the victim, the IFP member was killed, you were also convicted of having one home-made firearm and one round of ammunition, is that correct?
MR DLAMINI: Yes, I had this home-made firearm.
MR PANDAY: Now is it not true that you are applying for amnesty as a result of that entire incident that took place in November/December 1992?
MR PANDAY: Well, you are applying for one amnesty of the murder of the IFP member, is that correct?
MR PANDAY: Now is it also correct, on the form you filled in, that you are seeking amnesty for the possession of a firearm?
MR PANDAY: So when Adv de Jager asked you about - are you applying for amnesty on the weapons, were you confused with regards to his question?
MR DLAMINI: The amnesty application includes the home-made weapon that I had on my person on the day of the death of the victim.
MR MALAN: Just to make sure, and that was the home-made weapon that they had at the trial in the court, is that correct?
MR DLAMINI: Yes, that is correct, but I do not know the home made weapon or firearm that was brought to court as evidence. I still have the one home-made weapon at home to this day.
MR PANDAY: Mr Dlamini, you mentioned that you still have this one home-made weapon...(intervention).
ADV DE JAGER: You were wrongly convicted in court?
MR DLAMINI: The one home-made firearm that was brought before the court, really is something that I do not know. I can, given a chance, produce the firearm that I am talking about. I don't even know the weapons that they brought to court. I was using a 9mm ammunition for my home-made firearm.
ADV DE JAGER: Why didn't you take your 9mm on that day? Why did you take this home-made thing?
MR DLAMINI: I had my home-made firearm and not the 9mm.
ADV DE JAGER: But you had the 9mm with you since you took it from Mdo's cache, after a day after his death?
MR DLAMINI: Yes, I used it during the attack and then I put it away and instead used the home-made weapon and used the 9mm ammunition instead.
MR PANDAY: Mr Dlamini, on the day that the victim was murdered, was the 9mm on your possession, or on your person?
CHAIRPERSON: Does it really matter, Mr Panday?
MR PANDAY: Madam Chair, I believe the applicant led evidence to the effect that he put the 9mm away and used the 9mm ammunition.
CHAIRPERSON: Yes, we will request you to confine yourself to what he himself is asking for amnesty which is the home made gun.
MR PANDAY: Yes, Madam. Mr Dlamini, you mentioned now that the home-made gun is up to today, still kept. Do you know where that gun is?
CHAIRPERSON: Hasn't he given evidence with regard to that? His evidence is that he can produce it because it is still with him at his home. That's the evidence I heard.
MR PANDAY: Mr Dlamini, now I'm going to ask you about the ammunition that you used in the home-made gun. Where did you get ...(intervention).
MR MALAN: Sorry Chair, if I may just pursue this, I know you've made a certain statement about this, but how would know that the home-made gun is still at your place, since you were arrested and taken to court. You never had bail and you haven't been out since your arrest? Why do you tell us that you know where this home-made gun is and you can still produce it?
MR DLAMINI: The reason why I am saying this is because I was arrested at home where I was sleeping. I left this firearm in the hands of my father.
MR MALAN: Yes, but who tells you that they did not get the firearm from your father?
MR DLAMINI: Nobody told me so. I am sure that the police cannot find it at the place where it is hidden.
MR MALAN: How do you know that the firearm in court was not the same firearm? Why do you tell us that it was not the same firearm?
MR DLAMINI: They produced the firearm in the Supreme Court, but I realised that it was not mine. Maybe they brought somebody else's firearm, somebody who maybe was present on the day of my arrest, I don't know.
MR MALAN: Was there a difference? Was it a different kind of firearm, the one in court?
MR DLAMINI: Yes, it was different in the - the one produced in court had been made using a blank and a pipe and a door shooter.
MR MALAN: I'm not sure that I understand this and I don't know whether I have to look towards the interpreters or the applicant. You say it was a pipe gun? Like a - what kind of bullets did the one in the court fire? Not 9mm? Can you describe us your home-made gun?
MR DLAMINI: The one that I bought in Tongaat, was made such that it uses 9mm pistol, it was made with a steel, an iron and the kind of an iron that is used for making chairs.
ADV DE JAGER: So it was quite different from the one in court?
MR DLAMINI: Yes, it was different.
MR MALAN: Right, I don't think we can get any further. We won't get further.
CHAIRPERSON: Mr Panday, you were still leading him with regard to unlawful possession of ammunition.
MR PANDAY: Mr Dlamini, at court you were also convicted of possession or unlawful possession of ammunition, that being a shotgun round SSG, shotgun round. Now can you explain to the Committee as to your possession of such a round? Firstly where did you get this round from?
MR DLAMINI: We buy this ammunition.
MR PANDAY: Where do you buy this ammunition?
ADV DE JAGER: Were you in possession of this cartridge that they've shown in court?
MR DLAMINI: No, I did not see it.
ADV DE JAGER: Did you ever have a shotgun cartridge in your possession?
MR DLAMINI: No, I cannot remember.
MR PANDAY: Mr Dlamini, when the police arrested you, did they arrest you at the place you stay?
MR PANDAY: And when they arrested you, did they find any ammunition on yourself or in the house?
MR DLAMINI: No, they did not find any firearms on my person, but in the house where I was sleeping.
MR PANDAY: You say in the house where you were sleeping they found this ammunition?
CHAIRPERSON: Won't you identify what kind of ammunition was found in the house, we've got two kinds of ammunition?
MR PANDAY: Mr Dlamini, you mentioned that they found ammunition in your house, what type of ammunition did they find in your house?
MR DLAMINI: They found in the house 9mm ammunition.
MR PANDAY: Mr Dlamini, is it also possible that you may have had shotgun cartridges in your house that you can't recall?
MR DLAMINI: I cannot remember very well.
MR PANDAY: But it is possible?
CHAIRPERSON: We don't deal with possibilities, Mr Panday, we deal with facts. Was it within personal knowledge that a shotgun cartridge that he was convicted of, was his or not?
MR PANDAY: Mr Dlamini, the shotgun cartridge that you have been convicted of having, was that cartridge your cartridge or not?
MR DLAMINI: If they were 9mm cartridges, they must be mine.
CHAIRPERSON: Mr Dlamini, your counsel is not putting to you whether these were 9mm cartridges, you are being told that shotgun cartridges were found, a cartridge from a shotgun was found in your house, do you know anything about that?
MR DLAMINI: No, I do not remember them.
CHAIRPERSON: You have never possessed a shotgun cartridge?
MR DLAMINI: Empty cartridges, no I do not keep such things.
MR PANDAY: Mr Dlamini, are you now 100% denying that you had this shotgun cartridge?
CHAIRPERSON: No, Mr Panday, we don't want to know to what extent he is denying. A denial is a denial. It needn't be in terms of degrees. He has denied that. I don't think you can elicit anything other than what he has already given evidence to.
MR PANDAY: As Madam Chair pleases. Mr Dlamini, you mentioned that the ammunition was also purchased from town, ...(intervention)
ADV DE JAGER: He didn't possess this ammunition, so I don't know why we're further pursuing it because if he hadn't had it in his possession, he can't get amnesty for something that he didn't have in his possession. As far as the shotgun ammunition is concerned and in the Indictment he was convicted of having 1 SSG shotgun round in his possession and he denies, so he was wrongly convicted.
MR PANDAY: Mr Dlamini, I'm going to summarise ...(intervention).
MR MALAN: Sorry, Mr Panday, I just want to put this to the witness, because I'm referring now to the Judgment on page 32 of the bundle. Mr Dlamini, in the trial you pleaded guilty to the possession of that firearm that was produced in court, I'm referring to the middle paragraph on that page, page 32, where the Judge says
"It is finally not in dispute that upon his arrest, accused number 1", and that is the applicant, "was found in possession of that firearm, exhibit 1. Accused number 1 pleaded guilty to count 6", that's that specific charge, "but his plea was changed to one of not guilty because he disputes that the firearm was capable of discharging ammunition."
Mr Dlamini, could you understand what I was reading here?
MR DLAMINI: Yes, I do understand that.
MR MALAN: So at your trial you told the Judge that that firearm that they produced was indeed your firearm, but it couldn't fire a shot because it was broken. You understand that?
MR MALAN: Now why did you at your trial say it was your gun and now at the amnesty you say it was not your gun? Why did you lie to the Judge, telling him that that firearm that they produced was yours?
MR DLAMINI: They agreed among themselves, I did not say a thing in the Supreme Court, they were doing the talking.
MR PANDAY: Mr Dlamini, ...(intervention).
CHAIRPERSON: Mr Dlamini, if I may interpose Mr Panday, you are aware obviously that if you state that you've been unlawfully convicted of something that you did not possess and this is with regard to the conviction of being in unlawful possession of a firearm, that when you state that you were unlawfully convicted thereof, this Committee is not in a position to grant you amnesty, because you were convicted of something that did not belong to you, you did not unlawfully possess the weapon for which you were convicted. You are aware of that?
MR DLAMINI: The Judges were obviously using apartheid laws which were still active, so they succeeded in sentencing us.
CHAIRPERSON: What I merely wanted to draw your attention to is the fact that unfortunately we as a Committee will not be in a position to entertain your application, if you state and I don't have a problem with what you are stating, if you state that you were unlawfully and wrongfully convicted of this offence. We can only grant you amnesty if your conviction was the correct one. Do you understand what I am putting to you?
CHAIRPERSON: I just want you to be aware of the procedure that we are operating with. We only grant amnesty to people who have been correctly and lawfully convicted, not people who have been incorrectly convicted, as in your case.
CHAIRPERSON: You may proceed, Mr Panday.
MR MALAN: May I just follow up? Sorry Chair. When I asked you, when I read this paragraph out to you from the Judgment, I heard you answer that they agreed amongst themselves in the court and then you said, "I did not say a thing." Did I hear you correctly? Let me take it further, did you give evidence in court? Mr Dlamini, I'm speaking to you. Did you give evidence in court?
MR DLAMINI: I have explained that they spoke among themselves and made a decision among themselves.
MR DLAMINI: I did not say a thing.
MR MALAN: But Mr Dlamini, the whole Judgment analyses also your evidence, you gave evidence in your own defence and you were cross-examined on that evidence. Now why do you tell us that you didn't speak a word? I'm asking you these questions because it's important that you make a full disclosure and that you tell us the truth about everything that we think is relevant to your application. Now, I don't think we can find that you did not give evidence in court on the papers before us, yet you're telling us you did not speak, you did not say a thing. What must we believe?
MR DLAMINI: I would appeal that you withdraw this application, just forget about it.
MR PANDAY: Sorry, Madam Chair, maybe, may I have an adjournment.
CHAIRPERSON: No, you may not Mr Panday, you may proceed and conclude your evidence-in-chief.
MR PANDAY: Mr Dlamini, to summarise your evidence before this Committee I'm going to put forward the following statements and you will either confirm or deny what I have said.
CHAIRPERSON: May I interpose, Mr Panday and know what's the import of that summary? He has already given evidence. You have led him and all the evidence that you wanted him to give before this Committee has been given as a result of you having led him. Is it really necessary to summarise. Isn't it something that you can do when you address us in argument.
MR PANDAY: As Madam Chair pleases. Madam Chair, I just have one question to put to Mr Dlamini before I close Mr Dlamini's evidence. Mr Dlamini, I'm going to take you back to the time when the victim was allowed to go after the disciplining. Do you remember that time?
MR DLAMINI: I am not going to talk about this anymore. It just gives me a sore heart. I lost someone that is why I am saying this whole thing should be discontinued.
MR PANDAY: Mr Dlamini, I am going to appeal to you. This is only one question I need to ask from you and I hope that you give me an answer. When the decision was taken to kill the victim, who took that decision?
CHAIRPERSON: Hasn't this issue been sufficiently covered, Mr Panday? Or are you laying the basis in order to lead more critical evidence, which was omitted earlier on.
MR PANDAY: I'm laying the basis to lead evidence that may have been omitted Madam Chair, that may be crucial to the actual murder of the victim, which the applicant is applying for amnesty for.
CHAIRPERSON: Bearing in mind that we do have the first decision which was taken by the entire group and that was to meter out the punishment and the subsequent decision that was, in terms of the evidence tendered before us, taken by Mr Ntshetha, bearing in mind those two distinctions, you still wish to pursue the giving of further evidence in relation to the first incident?
MR PANDAY: This is not in relation to the first incident, Madam Chair, it's in relation to the second incident where Mr Ntshetha had advised that the victim be killed.
MR PANDAY: It's just bearing on that incident there. Once that is clarified that will be the end of the evidence required.
CHAIRPERSON: Yes, I hope you do get to the 2nd incident, which is the basis of his application much quicker.
CHAIRPERSON: Don't take too long laying a basis for something that's not going to be that materially relevant to us or which I think is not going to be sufficiently relevant.
MR PANDAY: Mr Dlamini, when Mr Lucky Ntshetha in the evidence mentioned that the victim needs to be killed because he can bring back more IFP supporters to attack us, were you at any stage given any instructions?
MR DLAMINI: I did explain that Sinangwenye was the one who informed us that the victim should be killed.
MR PANDAY: Mr Dlamini, you mentioned that you tried to fire your weapon and the weapon did not fire. On whose instructions did you try to fire the weapon? Was it on your own account or on someone's instructions?
MR DLAMINI: Lucky Ntshetha said I should fire. I tried but the weapon failed. He stabbed him and that's how he died.
MR PANDAY: And why did you listen to Lucky Ntshetha?
MR PANDAY: Thank you Mr Dlamini. Nothing further Madam Chair.
NO FURTHER QUESTIONS BY MR DLAMINI
CHAIRPERSON: Thank you, Ms Mtanga do you have any questions to put to Mr Dlamini?
MS MTANGA: Thank you Chairperson, I only have one question.
CHAIRPERSON: Yes, you may proceed and put your question to Mr Dlamini.
CROSS-EXAMINATION BY MS MTANGA: Mr Dlamini I just want to get to understand the grounds upon which you suspected this victim of being a danger to your safety as ANC people. In your evidence and also in the affidavit of Lucky Ntshetha, you have both indicated that there were continuous attacks between the two political groups. What I want to know from you is, the nature in which these attacks took place, did you get individuals coming to attack you or assassinate your people, or did the IFP, when attacking you, come in groups? I'm trying to understand, how did you form the grounds to suspect the victim of being there to kill one of you or to endanger your safety?
MR DLAMINI: The deceased...(no translation)
CHAIRPERSON: We didn't get a translation of...
INTERPRETER: I'm inquiring about that Chairperson.
MR DLAMINI: Teleweni is a member of Inkatha.
CHAIRPERSON: I can hear you Mr Dlamini, but the people that I'm sitting with here don't know or understand the names or the words that you're using. Please try and use common words so that the interpreters can be in the position to understand this. I will know this.
MR DLAMINI: This person was a member of the IFP and once an instruction had been issued that he should die for being a member of the IFP and for harassing us.
MS MTANGA: Mr Dlamini, my understanding of your answer is that, besides the victim being seen as a danger to your safety, he was also killed because he was a member of the IFP, the IFP that had been harassing you. Am I correct to say this?
MS MTANGA: No further questions, Chairperson.
NO FURTHER QUESTIONS BY MS MTANGA
CHAIRPERSON: Thank you Ms Mtanga. Mr Panday, do you wish to re-examination?
NO RE-EXAMINATION BY MR PANDAY
MR MALAN: I have only one question. At the beginning you told us that Makashleni was the person who knew the deceased. Is that correct? He knew that he was an IFP member?
MR DLAMINI: That is indeed so.
MR MALAN: And then at some later stage you told us that Basil knew that the deceased was IFP. Who's this Basil? Is it the same person, or is Basil your co-accused, Basil Ngwenye?
MR DLAMINI: Basil Ngwenye was one of us, we stayed together as comrades, or ...(indistinct).
MR MALAN: Yes, but in your evidence, you were referred to paragraph 8 by I think, by Adv de Jager and then you made this following statement and this is how I wrote my note. You said: "Basil knew that the deceased was IFP."
MR DLAMINI: The one person with whom we were arrested or convicted.
MR MALAN: How did he know that the deceased was IFP?
MR DLAMINI: We meet these people in town everyday chanting IFP slogans, shambokking us and chasing us and Basil saw this person on the day they were beaten up in town as these IFP people were singing, singing, getting off the bus.
MR MALAN: Why did you not tell us that in the beginning when you talked about his interrogation? Why did you actually tell us then that Makashleni arrived during the discussions and that he knew the deceased and that he told you that the deceased was IFP? You made not mention of Basil then.
MR DLAMINI: Yes, it was because I was not asked anything about Basil as to whether he had any knowledge of the deceased. I was instead asked about Makashleni whom I indicated that came at the time and I said he was in a sheepskin.
MR MALAN: Thank you, I have no further questions.
CHAIRPERSON: Do you wish to have - do you want to address informally?
MR PANDAY: Well informally I wouldn't mind, it's just ...(indistinct - not speaking into the mike)
CHAIRPERSON: I thought we had actually sensitised you to the fact that we would have liked to have disposed of Mr Ntshetha's evidence. Indeed it might actually be to your own benefit to dispose of his evidence-in-chief and probably mainly of his whole evidence, so that there is no need for him to be here tomorrow and we don't burden Correctional Services in having to transport Mr Ntshetha here, in which event I think it really would have expedited these proceedings, if we could have been accommodated that far. We do not think that Mr Ntshetha's evidence is going to be protracted. We thought we had your understanding that the evidence was going to be brief and to the point, in which event it would really have expedited these proceedings if we would have been able to dispose of his evidence. Are you sure you are unable to accommodate us?
MR PANDAY: Madam Chair, my problem is that I need to get back to my office which is not in town, because I have the clients waiting at my office and we need to go to Counsel's chambers, which is in town. I do apologise. I understand that, I did explain to Mr Malan that we'll try and get through the evidence, but looking at the lateness of the hour, that places a constraint on me and I must apologise for that.
CHAIRPERSON: May I make inquiries from members of Correctional Services whether it is possible for us to commence at 9 o'clock tomorrow and if that is so, if they would be kind enough to have both Mr Dlamini and Mr Ntshetha ...(indistinct) being here by half past eight tomorrow morning, to enable counsel to consult before we commence at 9 o'clock, is that possible? I seem to be getting a unanimous agreement. Thanks a lot to members of Correctional Services for accommodating us.
MR PANDAY: Thank you Madam. I will be at eight, half past eight in the morning...
CHAIRPERSON: Yes. We'll adjourn these proceedings until tomorrow morning at 9 o'clock. Thank you.