MR THUSI: ... today to hear the application of Bongani Cyril Thusi. The Committee is the same. Will the other legal advisors please put themselves on record.

MR MEEDING: Mr Chairman, I've been instructed by Captain Johan Meeding. I'm Petrus Coetzee from Maison Wynberg Attorneys in Pietermaritzburg. May it please you.

MR WILLS: Thank you, Mr Chairperson, I'm John for Pietermaritzburg, I'm representing the applicants.

Thank you, Your Worship, I'm Shireen Jelal from Shireen Jelal and Associates and I represent Lulu Thomas, a victim.

MS ARCHER: Jeanine Archer from Larson Brouton and Falconer Inc., instructed by Brigadier Mzimela, Robert Mzimela, Phillip Power and Toti Zulu.

MR MAPOMA: Thank you, Mr Chairman, I'm Zuko Mapoma, the Evidence Leader for the Committee.

CHAIRPERSON: I regret to say that it appears impossible to proceed with the application today for a number of reasons, which I will outline first, I will then ask legal advisors to advance their comments.

The first problem that arises as we see it, is that Mr Thusi is applying for amnesty in respect of an offence in which his co-conspirators, Messrs Gumbi and Zuma, have already applied for amnesty. No decision has been made in that matter pending the hearing of this application and it may be that the versions given are somewhat different.

What has happened is that a transcript of the evidence led at the hearing of the application has been made and is available. Despite this I understand that neither Mr Gubmi or Mr Zuma have been informed of today's hearing, although they are obviously extremely implicated parties and it may well be that they may have to subject themselves to cross-examination or that they wish to cross-examine Mr Thusi and I am of the opinion, as are the other members of the Committee, that they and their legal advisors should be given adequate notice of such a hearing but that is not an end to the matter.

As I understand it, Mr Wills who appears for the applicant was not aware until a few minutes ago, of the fact that there is a transcript of the evidence available. So he has not been able to read it, to compare it with his client's version or to take instruction on it. I don't if Mr Coetzee has been given a copy, I don't think so.

Mr Coetzee who appears for an implicated party who is mentioned by Mr Thusi, has as yet, as I understand it from a letter we have been handed, not been properly instructed by the South African Police Force, for whom is client was acting at the time and for whose client is still a serving officer. This is matter that obviously should be attended to before the hearing continues. His client has already also raised other problems in his letter, arising from the fact that he only received the documentation on the 7th of December and has not been able to obtain other documents or trace other documents which he makes a valid case out for requiring for the hearing.

The next problem is that the victims at the Gumbi and Zuma hearing were presented by Mr Rethman(?). He has apparently notified them now that he is not available to appear at this hearing and Ms Jelal has been given slightly less than 24 hours notice to appear for the victims, and has obviously also not been able to take proper instructions from them.

In all these circumstances it seems to us, subject of course to what you all may have to say, that it is impossible to conduct a proper and fair hearing today because it will be necessary to adjourn the matter to a date to be arranged so that the parties can receive the necessary documentation and consult fully with their clients before the matter proceeds.

Mr Coetzee?

MR COETZEE ADDRESSES: Mr Chairman, I have nothing further to add, I'm indebted to you. I have set out to try and save time, my client's concerns. I've got nothing further to add.

CHAIRPERSON: One matter I would comment on in your client's letter, is that it is not our responsibility to provide him with transcripts of previous hearings, he must make arrangements to obtain them. We think that you should be informed of the existence of such transcripts and that they are available, and then arrangements can be made to obtain them.

The same applies to you, Mr Wills. Do you wish to say anything?

MR WILLS ADDRESSES: No, thank you, Mr Chairman, only to say that I agree with your sentiments that we cannot proceed properly today, thank you.

MR JELAL: I have no submissions, Your Honour.

MS ARCHER: No submissions.

CHAIRPERSON: ...(inaudible)

MR MAPOMA ADDRESSES: I'm indebted to the Chairperson's sentiments which you have outlined and I'm convinced myself, Chairperson, that we cannot be in a position to proceed today.

CHAIRPERSON: Well I would like to stress that during the adjournment of this matter we should, and by "we", I mean the Amnesty Committee and its office, should make every attempt to ensure that all the interested parties, implicated parties are given sufficient notice of the next hearing so that they can make proper arrangements to be represented there, that they should also be informed, they should be given, as I think they have been, copies of this application but they should also be informed of other documentation which is available and which they can obtain copies of if they consider it necessary or can at least have an opportunity to read through, and that as they are all now on record, consultation is held with them to ascertain a suitable day for the next hearing of this matter, a day that would be convenient, perhaps not all that convenient but a day that we can all manage to be here for.

It seems to me, and I would like to hear comment on this too, that it would be safest to say that we will require three days. I think it would probably finish in two, but I think it might be, rather to avoid any further adjournments, to have a day in reserve. Do you agree or do you think ...(inaudible).

MR COETZEE: Mr Chairman, at least three.

CHAIRPERSON: At least three?

MR COETZEE: Yes.

CHAIRPERSON: Perhaps four then?

MR COETZEE: Yes, if you look at each interested party.

CHAIRPERSON: Yes, but one doesn't know till one has heard the evidence. On paper there may be a great deal they may wish to deal with and lead evidence about but we won't know till we've heard the evidence. So perhaps four might be a safer thing to ask, that they make arrangements for four days.

One other matter. Mr Coetzee, I said to you when I was discussing the possible adjournment beforehand, that your client was not implicated in the transcript of the evidence but I think I should draw your attention to the fact that there are certain passages in the evidence that may well be of interest to your client, which you may wish to expand on or investigate further. So I don't want you to get the impression that there is nothing there.

MR COETZEE: I'm indebted to you, Mr Chairman.

CHAIRPERSON: Is there anything further anybody wishes to comment on? Right, this matter is ...(intervention)

MR MAPOMA: Except, Chairperson, just to notify the Committee that the transcript of the previous hearing has just been given to Mr Meeding, who is going to hand it over to his legal representative.

CHAIRPERSON: ...(inaudible). There are other matters involved in Mr Thusi's application, which do not involve the present parties and which I have not commented on, but I would urge that the papers are gone through carefully and if there are any other persons who should be notified or informed of the existence of documentation, that that is done before the matter is set down and to ensure that those people also get adequate notice.

They have not seen fit to appear here, they have not instructed anyone here but we should not I think on that basis, assume that they have no further interest and ignore them from now on.

The matter is adjourned to a date to be arranged. I hope that those of you that have come here today to hear the hearing have heard the reasons that I have given, that there have been numerous problems that arise that make it impossible for us to hear the matter today, to hear it fairly that is, and to get the complete picture of what happened, which is as I understand it, why you are here, you want to know what happened, why these things were done.

We trust that when we come to the next hearing, all of that will be laid before you and I do apologise to you all for having made the effort to come here today and have not heard anything, have not learnt anything. Please have patience with us and we trust that you will, we have your names now and arrangements will be made to have present at the next hearing. Thank you.

We are now waiting for the next matter, Mr Zondi, but that only interests Mr Wills as I understand it and Mr Mapoma. So can I thank the rest of you for having come here today and to apologise to you too, that you've had to come here for a fruitless errand but trust that you will now be able to use the time available to make sure that when we start next time we can go through without any delays and if necessary to inform your clients of the dates of the next hearing in case they are required to be here as witnesses.

We'll adjourn till later in the morning. I understand transport is available for them now.

CHAIRPERSON: ... Zondi. The Committee remains the same but the applicant is now represented by Mr Wills.

MR WILLS: Yes, thank you, Mr Chairperson. I call the applicant, can he be sworn it?

MR LAX: Mr Zondi, do you have any objection to taking the oath?

P ZONDI: (sworn states)

EXAMINATION BY MR WILLS: Thank you, Mr Chairperson, Members of the Committee.

Mr Phulani, you applied for amnesty by way of filling out the prescribed form and you attached an affidavit and this affidavit you attested to on the 7th of day of May 1997.

MR ZONDI: That's correct.

MR WILLS: Do you confirm the contents of both the prescribed form, that is Form 1 and the attached

affidavit?

MR ZONDI: Yes, I do confirm that contents.

MR WILLS: You are applying for amnesty in respect of one murder and that is arising as a result of an incident outside the offices of the ANC in Empangeni, is that correct?

MR ZONDI: That is correct.

MR WILLS: And the application is in respect of a murder for which you were convicted in the then Supreme Court of South African, in May 1994, is that right?

MR ZONDI: That is correct.

MR WILLS: The deceased person in that incident was a certain Sikle Mpanza, is that right?

MR ZONDI: That's correct.

MR WILLS: And you were sentenced to a 10 year term of imprisonment, some of which was suspended?

MR ZONDI: That's correct.

MR WILLS: In fact you served a short period of your period of imprisonment and you are presently still performing community service in fulfilment of the conditions of that sentence, is that right?

MR ZONDI: That is so, although I have no completed it.

MR WILLS: You were at the time of this incident a member of the ANC, acting as a security aid for the then ANC Secretary, Mr Zenzo Mkunu in Northern Natal, is that right?

MR ZONDI: That is correct.

MR WILLS: Prior to that you had received training in Tanzanzia and you became a, sorry, training in Uganda, and you became a member of Umkhonto weSizwe.

MR ZONDI: That's correct.

MR WILLS: You left South Africa in late, sorry, through the borders with Swaziland at Ingwuvuma, without crossing through a recognised border post?

MR ZONDI: That's correct.

MR WILLS: You came back into South Africa after your training in Uganda, together with other ANC persons in 1992, is that right?

MR ZONDI: That is correct.

MR WILLS: Now at the time this incident occurred you were employed as an ANC Security Aide to Senzo Mkunu who was the Regional Secretary of the ANC in Northern Natal?

MR ZONDI: That is correct.

MR WILLS: Can you tell the members of the Committee what happened on the day in question.

MR ZONDI: We were on our way to the office at about eight in the morning. We were travelling to the Empangeni office. As we were driving along the way we saw a group of about 10 to 15 people. These people were carrying sticks, removing ANC election campaign placards. When we saw them, Senzo said we must go and actually stop them from doing this. Mr Mkunu was the Secretary General in Northern Natal.

When the car stopped in front of them, they fled. We got out of the car, those of us who were carrying firearms. It was myself, Thulani and Makoba. Makoba did not use his firearm though. When we got out of the car and they fled, we fired shots in the air and I realised that they were actually speeding off. Because we had to stop them, I realised we had to stop them, I started shooting, pointing my firearm directly to the deceased.

CHAIRPERSON: Why did you feel you had to stop them?

MR ZONDI: ANC posters had been removed quite a number of times before, therefore we realised we should stop them from the practice because it was not the first time that the posters had been put up, thereafter removed and this undermined the ANC as an organisation.

MR LAX: No, the question is, why did you want to stop them from getting away, not so much stop them from pulling down the posters, everyone understands that. In other words, why did you have to shoot at them if they were running away? That is the question.

MR ZONDI: I am not sure, I will not be able to answer that because Senzo had said that we should stop them.

CHAIRPERSON: Wasn't that that you should stop them taking the posters down?

MR ZONDI: I do not understand the question well.

CHAIRPERSON: Didn't Mr Mkunu say that you should stop them taking the posters down?

MR ZONDI: ...(no English translation). The way he put it, he said we should actually stop them from what they were doing.

MR WILLS: Is it not so, Mr Zondi, that you got carried away by acting in the way that you did on that day?

MR ZONDI: From the way that things happened I am not myself sure what happened, I just found myself pointing the firearm. Moreover, once you have pointed a firearm at someone and you are a trained soldier, there is no way that they are not going to die if you actually fire the firearm.

CHAIRPERSON: Was the position - at that time, was there a great deal of tension between the ANC and the IFP?

MR ZONDI: At that time it was just before the elections, it was March, and the IFP had actually issued an order that its members should not participate in the election. I then felt that the removal of ANC posters was in furtherance of that campaign. The situation was quite tense at the time because they were also many attacks carried out by the IFP against the ANC at the time.

CHAIRPERSON: It was almost a war situation the Judge said who heard your case, the country was virtually in a state of - this part of the country was virtually in a state of civil war. That was the position wasn't it, things were very tense in that part of the country?

MR ZONDI: Yes, it was.

CHAIRPERSON: Carry on.

MR WILLS: How do you feel about this incident now?

MR ZONDI: I do not have the words to express how I feel because I myself cannot forget about the incident because it was actually the first time that I actually killed someone.

MR WILLS: Now do you have anything to say to the victims of the deceased person, sorry, I mean the relatives of the deceased person?

MR ZONDI: It is difficult, I do not know what to say. I don't know what to say.

MR WILLS: Are you sorry?

MR ZONDI: By this I mean that I do not know what words to express to them, how to apologise to them, because you can actually not raise the dead, their loved one.

MR WILLS: Thank you, Mr Chairperson.

CHAIRPERSON: Mr Mapoma?

CROSS-EXAMINATION BY MR MAPOMA: Now Senzo Mkunu according to your evidence, instructed you to stop them from taking away the placards and that is all, is it not so?

MR ZONDI: That is what he said.

MR MAPOMA: And at the time you were chasing them they had already ceased to take away the placards?

MR ZONDI: Yes.

MR MAPOMA: Now how do you justify the act of killing somebody when the placards were already not being taken away?

MR ZONDI: Maybe this instance of taking down the posters may have continued because it was not the first time that the posters were actually taken down.

CHAIRPERSON: Was the position that they had taken down posters before, you'd put the posters up again, they'd come and taken them down again and this was just going on and on?

MR ZONDI: Yes, that is how it usually happened because that place was just in front of our office, so that when people approached the office there would see ANC posters along the way.

MR MAPOMA: So are you saying you were stopping the very tendency of taking away those placards?

MR ZONDI: Yes.

MR MAPOMA: Thank you, I've no further questions, Chairperson.

CHAIRPERSON: As I understand your affidavit, this took place when you were going to the office in the morning.

MR ZONDI: That is correct.

CHAIRPERSON: It was broad daylight?

MR ZONDI: Yes.

CHAIRPERSON: And this was an office where you worked and where you were well-known?

MR ZONDI: I was not well-known in the area.

CHAIRPERSON: Well you were seen in the area as working in the office?

MR ZONDI: I would agree with that.

CHAIRPERSON: And you made no attempt to conceal yourself, to hide your face or anything of that nature?

MR ZONDI: No, I did not.

CHAIRPERSON: You just got carried away and started shooting?

MR ZONDI: That's how it happened.

CHAIRPERSON: And you were visible to your own colleagues, to the other people who had been taking the posters down and to anyone who happened to be in the street at the time?

MR ZONDI: That is correct.

CHAIRPERSON: Thank you.

Mr Mapoma, have you had a chance of speaking to the so-called victims? Do you any of them wish to participate, do you know?

MR MAPOMA: Yes, Chairperson, I've spoken to them and they have indicated that they would not want to testify, they've just come to listen.

CHAIRPERSON: Thank you.

MR WILLS: That is the case for the applicant, Chairperson.

MR MAPOMA: Mr Chairman, I've no evidence from the side of the victims or from anywhere else, except Sir, to point out that the mother of the victim is GRACE MPANZA and her sister is ZIKLE MPANZA. They are all members of the family. They are here.

CHAIRPERSON: Yes, it is the mother who has suffered the loss?

MR MAPOMA: Yes, Chairperson.

MR LAX: The deceased wasn't married or didn't have any children, did he? I know he was quite young but you never know what may be possible.

MR MAPOMA: No, unfortunately I did not canvass that area because it was a young boy.

CHAIRPERSON: Perhaps we could ask the relatives of the deceased who I see sitting in the audience there if he had any children, could they inform us of that?

MR MAPOMA: No.

CHAIRPERSON: No, no children. Thank you.

I should perhaps indicate that there are approximately six female relatives of the deceased including his mother amongst the audience.

Sorry, Mr Mapoma, you say you have nothing to say beyond that. Is it correct that it would appear that the version given by the applicant, which was the same as that advanced by him at his trial, appears to agree entirely with the statements taken from the deceased's companion, except the one statement which denied that they were doing anything but the others all admit that they were taking posters down when this happened. There appears to be no conflict of fact whatsoever?

MR MAPOMA: Yes, Chairperson, there is no dispute on that. In fact unfortunately the victims say they cannot dispute it because they were not there but they can confirm that the deceased and his group were members of the IFP.

CHAIRPERSON: And we do have statements taken from all the members of his group I think and as I say, apart from the one gentleman, the others all agree that they were there and decided to take off the ANC election posters.

Mr Wills?

MR WILLS IN ARGUMENT: Thank you, Mr Chairperson.

I submit that whilst the immediate act of the applicant in shooting the deceased, was possibly more impulsive than politically motivated, I submit that in the broader context of the political struggle at the time, that it must with respect, be seen that this act was committed in a political context and was politically motivated.

I think as is indicated in the affidavit of the applicant, the fact that the election campaign was in progress, the fact that he was an ANC Security Aide and the level of the political violence and the intensity of that at that stage, and had the deceased not been pulling down a poster at the time, is indicative of the fact that this incident was committed against a political opponent in a political context and to that extent he satisfies the requirements of Section 20.

You Worship, the - sorry, Mr Chairperson, I don't think there can be any dispute as regards the aspect of disclosure, certainly nothing has been put to him, and clearly, as the Chairperson correctly pointed out, it appears that the facts as deposed to in an affidavit or identical to what was found in the criminal trial. I submit that in the circumstances that he has satisfied the requirements of the Act and amnesty should be granted.

CHAIRPERSON: ... that the political objective was the election and to safeguard the interests of the ANC in the forthcoming election?

MR WILLS: Certainly, Mr Chairperson.

CHAIRPERSON: The question that still arises, because I think we all agree about that one, was the question of proportionality. And here one has to accept, in judging this, the conditions that existed at the time, that this was not the first instance and one can well imagine, I don't think it would be contested, that there must have been enormous pressures on the person working for the ANC in Empangeni.

MR WILLS: Certainly, Mr Chairperson. I'm sure that you will have heard a lot of evidence in your other hearings in these matters, people were killed on a frequent basis who were associated with the ANC. I recall - just the one incident that comes to mind immediately was the Saturday prior to the election where

ANC campaigners were attacked and killed in Ulundi, I think on the Saturday prior to the elections. So clearly the intensity of the conflict was enormous.

CHAIRPERSON: We will adjourn for a short while to consider what we are going to do.

... Zondi seeks amnesty for the murder of Sikle Makapeni Mpanza, on the 22nd of March 1994, and according to what is set out in his affidavit, in respect of illegally crossing the borders of South Africa when he went to and from military training.

The applicant was born on the 24th June 1973. He was 20 years old at the time of the commission of the offence. He had already joined the ANC and its military arm, Umkhonto weSizwe, and at the age of 17 had been sent for military training in Uganda. He returned in late 1992, some two years later, and both occasions crossed the border illegally.

On his return he was employed by the ANC as a Security Aide to Senzo Mkunu, who was the Regional Secretary of the ANC in Northern Natal.

The incident took place shortly before the first open general election held in this country in 1994, and at that time he was working in the ANC offices in Empangeni, at Empangeni Rail. Although Empangeni itself may have been an ANC area, it was situated in the midst of strong IFP areas and there must have been extreme tension between the members of the various parties at that time.

It will be recollected, as was testified to by the applicant, that the IFP had up till that time chosen not to participate in an election. It will be remembered they very shortly thereafter elected to take part.

When he was going to the offices of the ANC, he noticed a group of young men who were in the process of removing ANC election posters which had been put up in the street in the vicinity of the ANC offices.

This was not the first time this happened, it had happened before, the posters had been replaced and removed again. One can imagine the frustration that was building up.

He and the others with him were ordered by Mr Mkunu to stop these people. He jumped out of the car as did the others, and drew his pistol. I am satisfied that the pistol he was using was a licensed weapon and that he was not charged with possession of an unlawful weapon and he and the other person were both carrying similar pistols, 9mm Mauzers and it appears probable that they would have been given them as part of their employment. It was not something that was held against him at his trial.

The people who were taking down the posters, about 10 or 15 of them, scattered and ran. He shot as did his companion, into the air but realised this was doing nothing to stop the people, using the word: "stop" in the sense not of preventing them from carrying on what they were doing but in the sense of stopping them from getting away, so that steps could be taken to ensure they did not do it again.

We are quite satisfied that the action taken by the applicant was completely unjustified, if assessed in a cold calm atmosphere but it is quite clear that in the atmosphere that prevailed at the time, the applicant did not judge it as coldly and calmly as he should have, he was carried away emotionally and shot to prevent these people getting away so they couldn't do it again.

In answer to questions by me, it is quite clear he made no attempt to conceal his identity, he must have had he stopped for a moment, been aware of the fact that people there would recognise him, would be able to identify him and that he would be held liable for what he was doing.

We are satisfied on the evidence and having regard in particular to the finding of the trial Judge who had the benefit of seeing and hearing the witnesses and hearing evidence of conditions, that what the applicant did was something done with a political objective, that is the objective of preventing interference with the election process and that although as I said, judged in a calm calculating manner, it could be classified as excessive, in the circumstances existing at the time, it would be wrong of us to come to such a conclusion. The trial Judge in his judgment on sentence said:

The trial Judge accepted that the applicant had been politicised at an early stage and also accepted, as I have done, that he was given the firearm when he was made into a security guard of the party.

He did not appear to have the requisite training in the responsibility of the use of a firearm, but that is not something that one can blame a young man for, there may be others in the party who should have foreseen this.

The trial Judge found that the applicant simply got carried away and he gunned this man down in circumstances which under normal circumstances in a normal climate he would not have done so.

In the light of this and of the evidence we have heard, and I omitted to say that in the documents put before us there were statements from the other person who were with the deceased, which confirms that they were in the process of taking down the posters, and on the basis of all this, we are satisfied that the unlawful act committed by the applicant in connection with the shooting was an act committed with a political objective and was covered by the provisions of the Amnesty Act.

We accordingly GRANT him amnesty in respect of the KILLING OF THE DECEASED. It also appears to us that his going to military training was clearly an act with a political objective and we grand him amnesty in respect of his ILLEGAL CROSSING OF THE SOUTH AFRICAN BORDERS when he went for and returned from military training.

The application is accordingly GRANTED.

We would also like to place on record that we are satisfied from what we have heard, that the mother of the deceased GRACE MPANZA suffered as a result of this unlawful political act and is entitled to reparation in respect thereof. We accordingly refer her to the Reparation Committee which now forms part of the Amnesty Committee. If she would give her details we could attend to that. Thank you.

Does that conclude the matters set down for hearing?

MR MAPOMA: Yes, Sir.

CHAIRPERSON: So we now adjourn till next year.

MR MAPOMA: Yes, Chairperson.

CHAIRPERSON: I'd like to thank you both for your assistance in this matter and thank the victims for their patience, they've spent a long journey to come here and we hope they have now realised that this is yet another one of those tragedies of the past, which we hope that we can now put behind us while we all work towards a new South Africa.

------------------