TRUTH AND RECONCILIATION COMMISSION

--------------------------------------------------------------------------CHAIRPERSON: Good afternoon. We want to start the proceedings. We have unfortunately experienced some delays in getting the proceedings off the ground but it has been inevitable and it has not really been within our control, but at least we are able to proceed at this point.

The Panel, just for the record, is chaired by myself Denzil Potgieter. I am assisted by Advs Bosman and Sandi. Today is Wednesday the 13th of October 1999 and we are sitting in amnesty hearings at JISS Centre Johannesburg. The first matter that we will attend to is the application of Thanjekwayo and three others. Yes, I think you must just put yourselves on record Gentlemen, first for the applicants.

MR HONNORAT: E, the initial and the surname is H-O-N-N-O-R-A-T.

CHAIRPERSON: Yes, Mr Honnorat, thank you.

MR ZULU: S J Zulu, for the applicant.

CHAIRPERSON: Yes, thank you, Gentlemen. Then for the next of kin?

MS VILAKAZI: Adv L E Vilakazi for the Manoto family.

CHAIRPERSON: Thank you, Ms Vilakazi. And for the implicated party?

MR CHELOPO: Mr Chelopo, C-H-E-L-O-P-O.

CHAIRPERSON: And on whose behalf are you appearing?

MR CHELOPO: For Ms Gumede, Anna Gumede.

CHAIRPERSON: Miss Gumede?

MR CHELOPO: Yes.

CHAIRPERSON: Mr Chelopo?

MR CHELOPO: Yes.

CHAIRPERSON: And then the Evidence Leader.

MS THABETHE: Thabile Thabethe, the Evidence Leader for the TRC.

CHAIRPERSON: Thank you. Yes, we've got all the parties on the record, I think. Ms Vilakazi, what is the position of your client?

MS VILAKAZI ADDRESSES: Thank you, Honourable Chairperson. The position of the client is that she received notice last week Friday about the hearing and her perception has always been that her input in the hearings is not going to make any difference because whether or not she attends the hearings,

amnesty will still be granted. I only had an opportunity to consult with her this morning and after I had outlined to her the impact that her evidence would make on the decision that the Committee has to take, it's only then that she came to appreciate the importance of her presence and decided that it would be necessary that she attend the hearings. Based on the fact that she has to consult with her in-laws in terms of tradition to discuss the issue with them and highlight the importance of the hearings to the family, she has asked that she be given that opportunity of consulting with them and then getting direction from them. She feels morally bound to have to consult with the in-laws, because of the fact that the deceased was their son, so that they could have an input as well. On the other hand Mr Manoto's children, who are also victims because they were assaulted, are busy writing examinations and they would not be in a position to attend the hearings at the present moment.

Based on that, the request from the Manoto family is that the hearings be postponed. I have two dates which I would put to the Committee, the earliest date being the 8th of November, being the date on which Mrs Manoto could appear, shortly after consulting with her in-laws. The reason why she cannot consult immediately with her in-laws is the fact that her in-laws are in KwaNdebele and she does not have telephone communication with them, so she would have to physically go to them and because of financial constraints, the earliest that she can go to see them is on the weekend of the 7th of November, so she would be in a position to be at the hearings on the 8th of November at the very earliest, but if she appears on the 8th, it would be without her children because they would still be writing examinations. The examinations would be finished on the 18th of November, so the 19th of November would be the latest date on which she could appear together with her children.

It would be up to the Committee to decide as to whether or not, if the postponement is granted, it is essential that the children should also be present in the hearings, but just for the record, given the fact that the children are also victims of the incident, the evidence that they could give to the Committee would be relevant in assisting the Committee in reaching a decision.

With regard to the question as to whether or not there would be any prejudice if the postponement is not granted, the task of the Committee is to reach a decision as to whether or not to grant amnesty or indemnity to the applicants and in order to reach a decision, the Committee has to have evidence of all the relevant parties. The evidence of the Manoto family, from the consultation that I had with Mr Manoto this morning, would be very, very crucial in assisting the Committee in deciding as to whether or not the incidents were politically motivated. As a legal representative I appreciate that fact that a postponement might be adversarial to the applicants seeing that they are in custody, but on the other hand, the Committee would be, to some extent, prejudiced in having to base it's decision on the version of the applicants only.

It is in that light that I move for an application for the postponement of the matter. Thank you Chairperson.

CHAIRPERSON: Thank you, Ms Vilakazi.

ADV BOSMAN: Ms Vilakazi may I just ask, are you in a position to give us an indication of the ages of the two children, are they old enough to appreciate the proceedings?

MS VILAKAZI: Thank you. I'll have to consult my papers.

ADV BOSMAN: Perhaps you can do it later.

MS VILAKAZI: Thank you.

CHAIRPERSON: I see Mrs Manoto is not present here.

MS VILAKAZI: I beg Your Worship's pardon?

CHAIRPERSON: I see that Mrs Manoto is not present here.

MS VILAKAZI: She is not present.

CHAIRPERSON: And you say that she must consult her in-laws to get directions from them, so there's no indication at this stage what the outcome of that consultation is going to be, whether it would result in the matter being opposed, in the sense of Mrs Manoto and members of the in-laws wanting to present evidence to the Committee, or not, that's not clear at this point. There must first be a consultation and then there will be clarity on how they intend to approach the matter?

MS VILAKAZI: Yes, there is no clarity as to what the viewpoint of the family would be, the in-laws would be, but based on the fact that she was persuaded, after our consultation, to appreciate the importance of attending, she would convey the same to the family, so there is, to be honest, no guarantee that it would be positive, but the possibility exists that the family would be inclined to take part in these proceedings.

CHAIRPERSON: Yes, but she has to consult before she has got any direction on that?

MS VILAKAZI: That is the position.

ADV SANDI: Sorry Chair, if I may just ask, are you able to give us any light as to the nature of the evidence that could be given by members of the in-laws, family?

MS VILAKAZI: I would be in a position to do so, although it would be hearsay. It would be better conveyed by the family itself, but from the consultation, what came to light is the fact that there have been personal problems, call it jealousy if you wish, between the deceased, his family and people in the immediate neighbourhood and the applicants in this matter are from the same neighbourhood. There is nothing whatsoever, as far as the family is concerned, which would substantiate the claim that the deceased was an informer and for that reason there is a lack of political motivation with regard to the incidents being applied for amnesty for.

ADV SANDI: Is it not correct that Mrs Manoto was staying with the deceased at the time of the occurrence of this incident?

MS VILAKAZI: Yes, she was.

ADV SANDI: Because one would have thought that perhaps she would have been the best person to give evidence concerning the problems, relationships with members of the immediate neighbourhood, applicants and so on.

MS VILAKAZI: Yes, that is correct.

CHAIRPERSON: On the face of it, is there any dispute about the incident itself?

MS VILAKAZI: Yes, there is a dispute.

CHAIRPERSON: Is there a dispute of fact on that? Because the applicant seems to admit the attack and the killing and the assaults.

MS VILAKAZI: The dispute that exists is a dispute of law, not a dispute of facts.

CHAIRPERSON: Alright. So the thrust of, should the Manoto family decide to come into this case, the thrust of their opposition would be directed at the political objective, in other words, they would be arguing that the deceased was not a police informer?

MS VILAKAZI: Exactly.

CHAIRPERSON: That's the ambit of the possible dispute.

MS VILAKAZI: Yes.

CHAIRPERSON: Yes. Mr Honnorat have you got any submissions on this application for a postponement?

MR HONNORAT ADDRESSES: Yes I've got, Mr Chairman. From what I've gathered, the deceased's widow has been notified timeously of these proceedings. She saw fit never to react to that. She had a consultation only this morning, but previously she'd already intimated that she particularly didn't care about the way these proceedings would have ended and it was her own impression that they would invariably end in an amnesty, which is lacking trust, I mean, in the Committee and basically attaching no importance whatsoever to have her presence there and eventual finding by this Committee.

Now this morning we are met with a sudden turn-around, that it is very important to attack the alleged political motivation of the killing, which is an afterthought, one day after the proceedings were supposed to be started. Definitely if her opposition was not to the question of fact, but to the political motivation for the killing, that would have surfaced a long time ago and the need to bring the in-laws to produce evidence on that score, although as Ms Vilakazi herself admitted, the deceased's widow is the best person to shed light on that aspect. That aspect would have already been raised by the time that she had been notified of the proceedings or very quickly afterwards. So it is my submission that clearly this is an afterthought on her part. Well I cannot speak on behalf of the TRC members who can say something about her generally unco-operative attitude towards these proceedings, but I believe that there is no real significance in the evidence of the in-laws, it was an afterthought on the part of the applicant, she didn't care about the proceedings including the finding or the political motivation of the killing, in the first place, so she's just playing hard to get, which is my own submission. There is no assurance whatsoever that the in-laws would in any event recommend that she or the kids come to testify at the proceedings. From the record of the Judgment, which was handed down by the late Justice Levison, it appears that the boy was 14 years old at the time, so he must be approximately 19 years old and certainly capable of understanding proceedings of this nature. As far as, I mean, the sister is concerned, Beverley, it appears from the Judgment that she was of close age, if not even older than Marvin himself and even, the question of deferring their participation, which is in any event suspended by the condition of the approval of the in-laws, till the end of examinations whilst they are almost young adults I submit it's totally unjustified.

On top of that, I would submit, the applicants are in prison. If there is good grounds for the granting of amnesty in their favour, they would suffer further, I mean their stay in prison without their application being heard. The matter was supposed to proceed already yesterday. Mr Zondo was informed timeously and he was here, in order to testify at the proceedings. In terms of the money that we have, I mean, to be spent by the applicants or the family, in support of this application for amnesty, every day that passes by is a loss for them. Today we have already entered into the second day. If we postpone then it will mean a third day and even financially wise, not talking in terms of their own personal suffering in prison, it is a strain on them which is caused by these unnecessary demands and ...(indistinct) and game playing on the part of the deceased's widow.

The applicants are ready to proceed. They have been summoned today especially from the prison, there was a problem yesterday in bringing the applicants, other than Zondo, here. There are some almost 10 applicants here ready to proceed today and I feel that they all will be unduly prejudiced by a postponement being granted in favour of the eccentric widow of the deceased.

On the basis of all those facts, I don't know if my instructing attorney would like to add some more, I submit that the applicants are quite entitled to vigorously oppose the grant of any postponement and to proceed with the matter today, they are ready to do so.

CHAIRPERSON: It appears from the judgment of the trial court that apparently this question of the deceased having been perceived to be a police informer, has featured in the trial as well. We haven't had access to the actual record. I don't know whether you have any instructions on that, but was that point ever opposed at the trial, because the judge seemed to have accepted.

MR HONNORAT: Yes, it doesn't seem to have been opposed. It particularly featured here in the evidence of accused no 2, Sipho Victor Tshabalala in his cross-examination, that accusation was levelled against the deceased. It doesn't seem to have been opposed by the deceased's widow and she never found fit to call any of the relatives, in-laws, to disprove the particular point, which adds further emphasis to my submission that it's an afterthought which has been concocted basically this morning when she saw Ms Vilakazi.

CHAIRPERSON: And the other point is, Ms Vilakazi has indicated that the basis of the opposition is limited to this question of the status of the deceased. On the face of it, would the children, would testimony on the part of the children serve any useful purpose on that score because the merits of the attack are not in dispute really?

MR HONNORAT: Probably not. The only thing which appears from the record, the judgment is that the boy, Marvin, did hear part of the conversation which took place between the deceased and the accused number 2 of the trial, again Sipho Victor Tshabalala and Sipho Victor is going to testify about why he believes that he was harassed by the deceased, as being a police informer, so it doesn't appear clearly from the record that the boy Marvin was aware of the kind of implications concerning the deceased being a police informer, being there during the discussion outside the house of the deceased by Mr Tshabalala. He seems to have picked up a possibility of threats against his father and acrimonious exchange of words between the two of them, so all the things he said, I wouldn't be able to give a positive answer on whether it is really necessary for the two of them to be vehement ...(indistinct), certainly the best person is the deceased's widow.

CHAIRPERSON: Thank you. Have you got any other submissions?

MR HONNORAT: No further submissions.

CHAIRPERSON: Thank you. Mr Zulu, have you got anything you want to add.

MR ZULU: As the house pleases. Mr Chairman ...(intervention)

INTERPRETER: May the current speaker switch on the microphone please.

MR ZULU ADDRESSES: Sorry. As the house pleases, Mr Chairman. Just to add on the submissions that have been submitted by counsel on brief. In fact it seems as if the reasons for the widow Mrs Manoto not to be present today, Mr Chairman, they keep on varying from one day to the next, the strongest reason for her not appearing yesterday was the fact that the children were presently writing examinations and when the applicant's attorney objected to their exam having commenced and only commencing on the 2nd of November, now all of a sudden we've got another reason, that the in-laws of Mrs Manoto have got to be consulted, the reason being the tradition as such and you know, from the TRC staff members, I think they can confirm it as well, that they have not been receiving co-operation on the part of Mrs Manoto, since the investigation of this matter or since, at the time the applications were lodged, in the sense that although Mr Madlala(?), who's been the investigating officer in this matter is not present and I'm informed that he's actually on leave, he has never received co-operation from her, in fact he would even come and consult with me on the basis of how to get Mrs Manoto to attend the proceedings and further Mr Pumzo Tofile, the legal officer at the TRC office in Cape Town informed me recently that he has been in communication with Mrs Manoto who says that no, this is pure, this is a criminal act other than a political act and then therefore she sees no reason why she should attend to these proceedings. Although maybe these persons I'm talking about now are not present and my submission might amount to hearsay, but I would like to stress it to this house that now in fact it means Mrs Manoto has got more than one reason for not appearing at this hearing and as such, the applicants, Mr Chairman, are being prejudiced by the fact that, since they have made written submissions to this house as to their participation in the whole act and are prepared to co-operate with this house as such, then if they are to be again postponed and taking into account the fact that the date on which this Commission was constituted, they have the strongest feeling that they're not entitled to be in prison now and they are on their own accord prepared to co-operate with the Commission in this regard.

CHAIRPERSON: When did they submit their applications, on what date?

MR ZULU: If I might just...(intervention)

CHAIRPERSON: Yes, yes please refer to it.

MR ZULU: That was in May 1997, Mr Chairman.

CHAIRPERSON: Thank you, Mr Zulu. Then one other thing, you referred to date of examinations. I'm just trying to ascertain whether I understood what you were saying. Are you saying that the excuse for Mrs Manoto's absence yesterday was given as the fact that her children are engaged in writing examinations, but the date of the exam turned out to be a different date?

MR ZULU: That's correct, Mr Chairman.

CHAIRPERSON: What are the details? Can you just repeat it? I just want to make a note of that.

MR ZULU: In fact on our arrival yesterday here at this house, we were informed by the TRC staff members that the reason for Mrs Manoto's absence today is that her children are writing exams and I personally objected to that, to say no, the exams only commence on the 2nd of November 1999.

CHAIRPERSON: Is that a fact? Is that common cause?

MR ZULU: In fact, the fact of the matter is the exams commence on the 1st of November and not the 2nd of November.

ADV BOSMAN: Which exams are these?

MR ZULU: Both primary and secondary level exams.

CHAIRPERSON: In Gauteng province?

MR ZULU: In Gauteng province.

CHAIRPERSON: Thank you, Mr Zulu. Are those your submissions?

MR ZULU: That's correct, Mr Chairman.

CHAIRPERSON: Yes, Mr Chelopo, have you got anything that you want to say?

MR CHELOPO: Thank you, Mr Chairman. From the consultation that I had with Ms Gumede, she is neither objecting nor saying we may start. Anything that the house can come with, is suitable to her.

CHAIRPERSON: Thank you. Ms Thabethe.

MS THABETHE ADDRESSES: Thank you, Mr Chairman. Maybe I should, for the record, clarify a few issues before I get to the issue of postponement. I was advised by Mr Tofile, our analyst, when this matter was still being investigated they had problems locating Mrs Manoto because after this incident, she changed the address or rather she changed the place of residence and she was not known where she was. Finally, she was traced at a late hour and her notice, as a result, was served late, that was on Friday.

ADV BOSMAN: I take it Ms Thabethe, you do not agree with the submission that was made that she was notified timeously? Do you regard this notification as timeous?

MS THABETHE: Yes, I would say the notice was not timeous, because it was 6 days notice. However, if I can elaborate on this, considering the fact that the Committee has got a short time-span and considering the fact that we've had situations or cases where victims have agreed and co-operated with us when we explained the pressure we are under to finish the work that is upon the Committee, I would say that if the victim was more co-operative with us and if she was willing to listen to what we had to explain, notwithstanding the late notification, the hearing would still have proceeded.

ADV SANDI: Should we deduce from what you've just said that she has not been co-operative to you?

MS THABETHE: Yes, I would say she had not been too co-operative and just to elaborate on that, my impression when I spoke to Mrs Manoto is that, as a victim in this matter, she was really traumatised by what happened and as a result, she was very - she doubted the whole process, she did not understand what the process was about and when I say she was not co-operative, it's because, when we tried to explain to her on Monday and when Mr Pumzo Tofile tried to explain to her on Monday, her response was that the whole process you know, encourages criminals to come out of prison and she didn't see what her role was going to be in that whole process. As a result, that is why we did not want to get involved any further and we asked an independent legal representative, that is Adv Vilakazi, to go and speak to her.

Coming to the question of the relatives, my submission would be that Mrs Manoto stayed with the deceased and she would be in a better position to give the kind of evidence that would throw some light, or would give the kind of evidence that would assist the Committee to reach a decision. I don't see how the consultation of the in-laws will take the matter any further.

ADV SANDI: By the way, this is a question I thought I would ask earlier on, these in-laws, who are we talking about? Is it the mother, the father?

MS THABETHE: We're talking about the mother, who also happens to have brought up some of the applicants.

ADV SANDI: Thank you.

CHAIRPERSON: Ms Thabethe.

MS THABETHE: Thank you, Mr Chair. I was still explaining that from Monday we tried to explain to Mrs Manoto the importance of her coming to the hearings and I have explained that she is really a bitter person and she communicated her lack of interest in the whole process until we sent Adv Vilakazi and even this morning Adv Vilakazi was on her way back to Pretoria because she had told her that she doesn't see what her role is going to be in the hearing, it's only after she had spoken to Miss Fiza Brown that her attitude appeared to have changed. I'm actually not sure as well exactly when her attitude changed because when we spoke to Adv Vilakazi, she was going back to Pretoria and I'm not sure, maybe she can explain. I don't know whether she had given up or she had experienced problems with her co-operativeness as well because she didn't even want to sign the legal aid forms for her payment, so I'm actually not sure when she started having a positive attitude towards the process, but as I have outlined, she's a victim, she's been traumatised and she is very, very bitter.

ADV BOSMAN: Ms Thabethe, submissions have been made that there's game-playing, that there's reticence and she's an eccentric widow of the deceased. Do you have any information to substantiate these claims that she's playing games, that she's making unnecessary demands, she's unnecessarily reticent and that she's eccentric?

MS THABETHE: Madam Chair, to be fair on the victim and I think in the interests of justice, considering the fact that she was traumatised and considering the fact that between Friday and today she has had to think about this, you know, make decisions about this ...(intervention)

ADV BOSMAN: On her own.

MS THABETHE: On her own, and of course she had to make this decision under pressure, I wouldn't say she was playing games with us, but I would say she did not understand the process more than saying she played games with us and like I say, because of what she's experienced and because of the fear of what her kids are going to go through, especially during exam time, she did come out as being bitter and unco-operative with us.

CHAIRPERSON: Was the reason for her non-attendance yesterday initially given as that her children were engaged in writing exams?

MS THABETHE: Yes, that's what she communicated to Pumzo Tofile and after various discussions with Pumzo Tofile she said she was not interested and then she changed again. It appears that she was very much unstable. She couldn't decide whether she wanted to come or not to come, but yes, she did give the reason that her children are writing exams.

CHAIRPERSON: Did that turn out to be incorrect, that there are no exams being written at this point, but only from the beginning of next month.

MS THABETHE: Well unfortunately I didn't inquire because she communicated this to Pumzo Tofile and Pumzo Tofile communicated this to me. I didn't inquire what kind of exams the children were writing, whether they are at tertiary level or whether they are writing matric, but that's what she said, yes, that her children are busy writing exams. I think at this stage it's not clear whether they are writing exams or not. It may be that that point would need to be pursued with her and I can make arrangements to that effect.

CHAIRPERSON: Yes. Have you got any other submissions?

MS THABETHE: No, Mr Chair.

CHAIRPERSON: Thank you. Ms Vilakazi, do you have anything else?

MS VILAKAZI: Thank you, Honourable Chair, I think I should correct some misconceptions, a few misconceptions that have been created. Firstly with regard to your question of the examinations, Mrs Manoto impressed it upon me that the kids are busy, they had started with the examinations, so they are busy with the examinations. What I have not established is what type of examinations are they writing, but the type of examinations that they are writing would not really be relevant to the question, what is relevant is whether they have started with the examinations or not, because examinations are examinations.

CHAIRPERSON: It's just that either they are writing or they're not writing. Either it's true or it's false and if it's false, then it raises question marks on whether or not there is full co-operation or not, so that's the only relevance of that point.

MS VILAKAZI: Thank you, Honourable Chair. With regard to the question of lack of co-operation on behalf of Mrs Manoto, I think the Committee should at this point in time, try to pause and put itself in the shoes of Mrs Manoto. The Evidence Leader has already outlined the picture of the type of bitterness that is on her part and it is understandable that she did not only lose a husband, she was also assaulted and from what she told me, she was left for dead, so she was personally traumatised, she was physically injured, she still has to recover from that and the fact that the communication with her has been throughout, from the office of the TRC, which she has perceived to be a system which is intended at freeing her husband's killer and her own assailants, so the lack of co-operation should not be seen as a lack of co-operation of a normal person who just sits and decides I'm not going to co-operate with these people. It should be understood in the context of the fact that she's a bitter person and she was ill-informed with regard to the nature of the proceedings, because her perception has been, and that I think the Committee could take judicial notice of, the perception of the victims in amnesty applications is that the hearings are pro-applicants and anti-victims, so ...(intervention)

CHAIRPERSON: Are you suggesting we must take notice of that, judicial notice of that fact?

MS VILAKAZI: That is my request, Honourable Chair.

CHAIRPERSON: Well, on what basis are we supposed to take judicial notice of that? Are we not only able to take judicial notice of something that is generally known, that is general knowledge? It might be the view of Mrs Manoto, but to submit that that is a general situation without any other grounds backing it up, isn't that pushing it a bit too far? We understood that she holds that view about the Commission, we accept it on that basis.

MS VILAKAZI: Perhaps I could put it as Mrs Manoto's view, but it has happened even in other hearings, the perception being put in the media, let me say, that the victims feel that this process is really too soft on the criminals.

CHAIRPERSON: Yes.

MS VILAKAZI: If the Committee has a problem of accepting that as a general perception, perhaps then it should be put as the perception of Mrs Manoto in this particular case.

CHAIRPERSON: Yes, I don't know how that submission assists the issue that we have to decide, whether this matter should be postponed or not. You have, and Ms Thabethe have indicated apparently Mrs Manoto's attitude towards the process and we've taken note of that. Is it necessary to take it any further than that?

MS VILAKAZI: No, it was just in response to what has been said, that she's generally unco-operative, but I do not really wish to take the matter further. But I don't think the question of whether or not Mrs Manoto has been co-operating is not the primary consideration that the Committee has to take, the primary consideration is whether the Committee is willing to decide on the matter, based on only one version, when it could have the other version as well, the version of the victims.

CHAIRPERSON: Yes, that is obviously a very relevant consideration which we have to take into account, as we have to take into account very many other factors that weigh in this regard, not least of which is the fact that the amnesty applications have been submitted in May of 1997 and we're only hearing it in, we have it on the roll in 1999. So those are all factors that are very relevant, but what is the position, Ms Thabethe has apparently now ...(end of side A of tape) ...situation this morning. Would you like to clarify what was the position this morning? You were apparently on your way back to Pretoria?

MS VILAKAZI: Okay. With regard to what transpired this morning, after I had persuaded Mrs Manoto with regard to the importance of her giving testimony in the hearings, the problem that she had was to have to disclose her financial position. Her own perception was that she did not bring the application. She was informed that an application has been made and therefore she does not understand why she has to pay to be legally represented in the hearing that she's invited to take part in, or at the least to prove that she is not in a financial to pay for her legal representative. So it was on that basis. Her reason is not connected with the importance of her attending the proceedings, it's related to the question of legal representation, that she is invited to attend the proceedings but then she's expected to either pay for legal representation or to give a financial position that would indicate that she is not in a position to afford legal representation herself.

CHAIRPERSON: She didn't understand that she's under no obligation to attend, that it is a matter of choice? It's her choice if she wants to attend and if she wants to attend and she also wants legal representation and she is unable to financially afford that legal representation, then of course she could be assisted financially in that regard, but she's got the right to bring her own attorney if she wants to, but of course she must pay for it then.

MS VILAKAZI: Yes, she understands that she has a right to legal representation.

CHAIRPERSON: Yes, now I don't follow how this featured with - what was her attitude after that? Was her attitude that this matter must proceed, or why did you have to then leave? Was there a breakdown of communication between the two of you, or what?

MS VILAKAZI: Yes, when we parted, she was willing still to attend the matter and she felt it was important for her to attend. What she could not understand is the fact that - she understands also that she's entitled to legal representation but then what she did not understand is the fact that she has to either pay or to show that she cannot afford to pay for that legal representation.

CHAIRPERSON: Yes, I don't know if I misheard Ms Thabethe, but Ms Thabethe seemed to have submitted that you were not coming here, you were not coming to the proceedings this morning, you were going to Pretoria as if Mrs Manoto is no longer participating in the proceedings and that you don't ...

MS VILAKAZI: No, our parting note was that, because she had a problem of completing the means test, the legal aid form, I cannot come and ask for a postponement on her behalf, because I would be representing her

CHAIRPERSON: Alright, you wouldn't be covered, okay, I understand that.

ADV BOSMAN: Ms Vilakazi, is my understanding correct that she didn't want to put herself in jeopardy for possibly being liable to pay you your fees?

MS VILAKAZI: That is the position.

ADV BOSMAN: Thank you.

CHAIRPERSON: Have you got any - oh, are those your submissions?

MS VILAKAZI: Those were my submissions thank you.

CHAIRPERSON: Yes. Can I ...(intervention)

ADV BOSMAN: Mr Chairperson, may I just ask one question of Ms Vilakazi?

CHAIRPERSON: Yes.

ADV BOSMAN: Ms Vilakazi, I'm just curious to know, is your applicant the sort of woman who can make decisions on her own? Did she appear to be a woman who is unable to make up her own mind? Is she an independent thinker? Is she a sophisticated woman? Could you just perhaps give an indication of your impressions as far as that goes?

MS VILAKAZI: My impression of the applicant is that she is traumatised, she still has a resentment and that is what clouds her thinking, but it did not appear to me that she is not able to take decisions on her own, it's only that her thinking has been clouded by the resentment that she has as a result of the incident.

ADV BOSMAN: Thank you.

ADV SANDI: ...(indistinct).

CHAIRPERSON: Yes, go ahead.

ADV SANDI: Did she in the end fill in this legal aid application form?

MS VILAKAZI: She has indicated that, she spoke to ...(indistinct) and she said she'll complete it and fax it to Head Office.

CHAIRPERSON: What I wanted to ask you, I've already indicated that we've got to weigh up all the various interests that come into play in a matter like this and at the same time we've got to try and do justice to all of the interested parties as far as that is practically possible in the circumstances. Is there any evidence that your client did suffer, should this application proceed at this time, however reserving her right to submit evidence in opposing the matter at some stage, particularly bearing in mind the fact that it appears as if her consultation with her in-laws would be quite a determining factor in that whole process? It's not clear which way that consultation would go and if they were to determine that she is not going to participate in these proceedings, we would have obviously even further prejudiced the applicants who have submitted their application in May of 1997, so would there be any prejudice to your client if she, if her right is reserved to present any evidence to this Panel and in the meantime the application is heard?

MS VILAKAZI: Can I first understand what the Honourable Chair is trying is trying to convey? Is the question related to whether the applicants can give their testimony and then she could submit later on?

CHAIRPERSON: Yes, remember we're not a court of law, we're an administrative tribunal, we're not necessarily compelled to hear viva voce, verbal, oral evidence, we are authorised to determine our own procedure. We can take evidence on affidavit for example or if it's necessary we can reconvene and hear people if it appears that their submissions are material and relevant and it has to be heard at a public sitting.

MS VILAKAZI: I think for purposes of being able to cross-examine the witnesses with regard to the whole question of political motivation, it would be of prejudice to her not to be able to inform her legal representative adequately for purposes of cross-examination.

CHAIRPERSON: Yes, so it might be, you're saying it might be that if she and her in-laws in fact decide that they should participate in the proceedings, that it might be necessary to cross-examined the applicants?

MS VILAKAZI: That is the position.

CHAIRPERSON: So it might be that your client might be able to persuade the Panel that the applicant should be recalled for cross-examination for example?

MS VILAKAZI: That is a possibility.

CHAIRPERSON: But what I'm interested in is here and now. If the application had to proceed at this point and all those rights are reserved for your client, is there any prejudice that she suffers? Irreparable prejudice that she suffers?

MS VILAKAZI: Well, if the right to recall the witness for cross-examination purposes, if it's warranted, if those rights are reserved then I would submit that there would be no prejudice, no serious prejudice on her part.

CHAIRPERSON: Yes. Have you got any other submissions? Is that all?

MS VILAKAZI: That will be all.

MS THABETHE: Mr Chair, may I interpose please? May I please interpose?

CHAIRPERSON: Yes.

MS THABETHE: I just wanted to give some information. I asked Ms Fiza Brown to inquire from Mrs Manoto with regard to the children, their ages and whether they are at high school or not and if I can be permitted to give that information? She's got 2 daughters and 2 sons. The eldest daughter is 26 years old and it would appear that she's the one who was also assaulted. The son is 19 years old and it would appear that he's the one who was assaulted as well. The other daughter is 14 years old and the other son is 9 years old. The daughter and the son who would have come to give evidence, are still in high school and she says they are busy writing exams until the 18th of November.

CHAIRPERSON: Yes.

MS THABETHE: And I just wanted to add that to further assist my colleague Adv Vilakazi, I would also undertake to make the transport available for the victims. The transport of these hearings should the Committee reach a decision that we should proceed with this matter.

CHAIRPERSON: Yes. Thank you Ms Thabethe. Yes we will adjourn at this stage, consider the application and we will reconvene at quarter to two. We're adjourned

CHAIRPERSON: This is an application for a postponement of the amnesty applications in respect of the killing of Jacob Manoto on the 21st of April 1993 at Diepkloof township in Soweto. The applications for amnesty were submitted to the Amnesty Committee during May 1997 and the applicants are in custody. The applications were scheduled to be heard yesterday, the 12th of October 1999 and the applicants have been ready to proceed with the matter and they have been legally represented throughout by Adv Honnorat and Mr Zulu, who have been present throughout at the hearing venue.

Adv Vilakazi, who appears on behalf of the next of kin of the deceased, in particular the widow of the deceased, Mrs Manoto, has argued the application for a postponement on their behalf. She indicated that at first her client was not inclined to participate in these proceedings due to a negative view that she holds in respect of the process of which this Committee forms part. Her client however, subsequently changed her mind about her possible participation but would now have to consult with her in-laws, that is the family of her late husband who will have to give further directions in regard to the approach that ought to be adopted with regard to the applications.

It is not clear at this stage what the outcome of this consultation would be. Adv Vilakazi also indicated that there is no dispute on the merits of the incident itself. We should add that in the course of this incident, the widow as well as some of her children were also attacked and assaulted. She has indicated that the possible basis of opposition appears to be that it is disputed that the deceased was a police informer as alleged by the applicants.

A further issue that was raised in regard to the postponement is the involvement of the children in writing examinations which make it impossible for them to be able to attend the proceedings at this stage.

The application for postponement is opposed by the applicants. They stress the prejudice that they are suffering, both in respect of the delay in finalising the matter as well as the financial prejudice resulting from the legal costs that they are liable for in this regard. Submissions were also made in regard to the conduct of the widow of the deceased and the thrust of the submissions in this regard was that the widow is deliberately delaying the matter and her conduct in general in regard to this matter, leaves a lot to be desired.

In deciding this application we have to weigh up all of the different interests and factors that are relevant and eventually we are called upon to do justice and to act fairly in all the circumstances of the matter. We agree that there is obvious prejudice that the applicants will suffer should the matter be further delayed, but we are also of the view that the next of kin of the deceased are entitled, if they are so-minded, to participate and to oppose the application on any ground that they regard as material. We are not persuaded that the attitude of the widow of the deceased can be ascribed to a deliberate delay tactic, or some other undesirable motive on her part. In our view it is quite understandable in the circumstances that a person in the position of the widow would have difficulty in deciding how to deal with a matter of this nature, given her personal circumstances. In our view, however, having considered all of these factors, the prejudice which applicants will suffer, should this matter not proceed, would outweigh any prejudice which the next of kin might suffer if the proceedings were to proceed. We are however mindful of the fact that should the next of kin, that is the widow of the deceased and her in-laws, decide to participate, their evidence could be material and necessary in order to enable us to properly decide the matter.

Having therefore carefully considered the matter and all of the submissions addressed to us the application for a postponement is refused, the right is however reserved in favour of the next of kin to submit any evidence which they regard as material for a decision of this matter. Within a period of seven days from today, the possible further conduct of the matter will be then decided in view of any evidence which might have been submitted by the next of kin. We wish to point out expressly in this regard that the possibility is not excluded. That the applicants might have to be recalled for the purposes of further cross-examination on any of the issues which might be raised by the next of kin of the deceased. Adv Vilakazi is called upon in the meantime to represent the interests of the next of kin at these proceedings today. Under those circumstances, we intend to proceed to hear the applicants at this point.

Mr Honnorat in which sequence have you intended to call the applicants?

MR HONNORAT: Mr Chairman, it will be applicant number 3, Mr Zondo, followed by applicant number four, Mr Shabangu, then applicant number one Mr Thanjekwayo, then applicant number two, Mr Nyaluka, will be the last one. Mr Chairman, there is question of whether, on the basis of a statement made by Mr Sipho Victor Tshabalala, it could be regarded as an application in terms of the Act and afford the person who made the statement under oath, be allowed to be involved as a fifth applicant in these proceedings?

CHAIRPERSON: No, just direct our attention, you say that ...(intervention)

MR HONNORAT: In that bundle of documents, it will be page 41 to 42, the statement of Victor Tshabalala, he is present today and my instructions are that he regards it as being an application, although perhaps not formerly so, in terms of the Act. He regards it as being an application to be heard by the Truth and Reconciliation Commission in terms of the relevant Act.

CHAIRPERSON: When was this - what is the date of this statement?

MR HONNORAT: Unfortunately we have got a typed copy, the statement was made approximately the same time that all the other applications were submitted and the client had been informed by the TRC member that request has been made for the originals of all the statements and not only the typed copies, they will have to be supplied from Cape Town.

CHAIRPERSON: Yes, so we don't have the original of this document?

MR HONNORAT: Not at the moment, in order to verify the date, it's just the information from the client that it was done in 1997 at the time that all the other applications were made, that's why it was put together as a bundle.

CHAIRPERSON: Ms Thabethe, what is the position in regard to this? The original document, what was it, was it a letter, or what was it?

MS THABETHE: Mr Chair unfortunately I have had no sight of the original hand-written statement, but I phone Pumzo and asked him to fax it to us, so it should be here anytime and that can be clarified.

CHAIRPERSON: Is there any indication whether there was a formal application by Mr Victor Tshabalala?

MS THABETHE: No, we have no record of his formal application, just a record of his statement.

CHAIRPERSON: And is it possible ...(intervention)

MS THABETHE: And unfortunately there's no record on our side of having maybe requested you know further particulars for him to clarify whether it's his intention to apply or not.

CHAIRPERSON: Yes, so there's no indication as to how we treated this document that arrived at the office, whether we treated it as just a statement or submission, or whether we treated it as a possible application? There's no indication at this stage?

MS THABETHE: At this stage, no Mr Chairman.

CHAIRPERSON: Does the applicant, does Mr Tshabalala indicate here, I can't recall, does he indicate that he wishes to apply for amnesty in this document, Mr Honnorat?

MR HONNORAT: He doesn't indicate it specifically in the document, he took it as an explanation of what happened and making a formal statement on the matter. It's not specifically stated that it is so, I will submit it is implied from paragraph 1 when he said I am serving 15 years term of prison, in other words he would like to have that aspect reviewed by this Committee.

CHAIRPERSON: Yes, although he doesn't seem to have been involved in this incident at all, from what he says. He says he was at a meeting apparently, but from that meeting he went home and then he took his sister to the hospital, because the sister had fallen ill, so it doesn't look as if he was involved in the actual incident.

MR ZULU: If I may interpose Mr Chairperson, in fact maybe at the time of drafting the statement, Mr Chairperson, he was guided through, or perhaps the possibility is that he might have been ill advised at the time, however, from the instructions that he's just furnished to us, there is more to tell than what is actually shown here and at the same time he's been actively involved and he participated according to my instructions, Mr Chairperson.

CHAIRPERSON: Yes, if he - I think the question is, did he intend to apply for amnesty? What was the intention behind this document?

MR ZULU: According to my instructions Mr Chairperson, his intention was to apply for amnesty and at the time of drafting the document, Mr Chairperson, I don't think he was guided through, hence we prefer to see the original document that he signed, which will actually assist this house to determine as to when exactly, what date did he apply, if he intended to apply.

CHAIRPERSON: Yes. I think that we will have to let this issue stand down until we have got the documentation. We will have to proceed with the other applicants in the meantime, who have submitted regular applications and then we'll have to come back to this issue.

MR ZULU: As the house pleases. And can I interject further, Mr Chairperson? There has been a special request by my colleague. I am made to understand that his matter was supposed to commence this morning and the applicant wasn't here at the time and I'm told he's arrived and there has been a request that at least if we could adjourn for the moment, so that he proceeds with his application, which won't take much time.

CHAIRPERSON: Yes. Ms Thabethe, what is the position with that? Is it the Gumede matter?

MS THABETHE: I beg your pardon, Mr Chair?

CHAIRPERSON: Is that the Gumede matter that Mr Zulu is talking about?

MS THABETHE: Yes, Mr Chair.

CHAIRPERSON: What is the position with that, because it seems as if in any case, this document that we are talking about now is not available immediately, so what is the position with Gumede's ...

MS THABETHE: The position, Mr Chair, would be that I would support and request that we start with that matter because it's going to be quite a short matter and we've got victims that have been here for the whole day.

CHAIRPERSON: Okay.

MS THABETHE: We can complete this matter today.

CHAIRPERSON: Yes, no I think, under those circumstances it would be fair you know to deal with the Gumede matter and then we are awaiting this document in any event and then to recall your matter as soon as you are done with the Gumede matter. Would that be in order?

MR HONNORAT: No problem with that Mr Chairman.

MR ZULU: Could I just find out something Mr Chairperson? Would it be possible, as it is now 25 past two, Mr Chairperson, that we can start with applicant number 1 once this matter has been finalised or else maybe we can have this one adjourned until tomorrow morning? I want to know from the house.

CHAIRPERSON: Well the Gumede matter, by all indications, won't take very long. We are anxious to start off with your matter. We have quite a bit of other matters on the roll that we must still hear before the end of this week.

MR ZULU: Thank you, Mr Chairperson.

CHAIRPERSON: So we'll take Gumede and then we'll come back immediately to your matter.

MR ZULU: Thank you.

CHAIRPERSON: We don't normally adjourn. We find that as soon as you adjourn, it's very hard to reconvene, so we're not going to adjourn, we're simply going to ask you to make some space for Mr Koopedi and then we can deal with the other matter.

MR ZULU: Thank you.

--------------------------------------------------------------------------CHAIRPERSON: For the record we will now be hearing the matter of August Mkulu Gumede, Amnesty Reference Number AM7007/97. Mr Koopedi will you just put yourself on record for the applicant?

MR KOOPEDI: My name is Brian Koopedi. I appear for the applicant in this matter.

CHAIRPERSON: Thank you, Mr Koopedi. And then the Leader of Evidence?

MS THABETHE: Thank you Mr Chair, I'm Miss Thabile Thabethe, the Evidence Leader for the TRC.

CHAIRPERSON: Thank you.

MS THABETHE: But I would like to put on record that I am representing the victims in this matter.

CHAIRPERSON: Yes, thank you. Yes, Mr Koopedi is there anything you want to put on record or do you want your client to be sworn in?

MR KOOPEDI: Yes, as the Chair pleases. Chairperson, may I briefly express my gratitude and indebtedness to my esteemed

colleagues and of course the Honourable Committee for letting us jump in and do this matter. Chairperson, the applicant is here and is ready to be sworn in.

CHAIRPERSON: That's fine.

AUGUSTUS MKULU GUMEDE: (sworn states)

CHAIRPERSON: Yes Mr Koopedi.

MR KOOPEDI: Thank you Chairperson. We will proceed with the leading of the evidence.

EXAMINATION BY MR KOOPEDI: Mr Gumede is it correct that you are an applicant in this matter and is it also correct that this is an application for the killing of Mr Msimango during 1993?

MR GUMEDE: That is correct.

MR KOOPEDI: Now we've had an indication that this killing occurred on the 26th of September 1993, when in your application you refer to early 1993, would it be correct to say that this incident occurred on the 26th of September 1993?

MR GUMEDE: I cannot specify the date certainly but I do not remember what date it was.

MR KOOPEDI: I will refer you to a statement on page 8 of the bundle, Chairperson. The statement you are currently looking at. Did you read the statement?

MR GUMEDE: Yes I did.

MR KOOPEDI: Can you confirm the contents thereof?

MR GUMEDE: Yes.

MR KOOPEDI: And finally, was this statement made by you?

MR GUMEDE: Yes, that is correct.

MR KOOPEDI: Now, there is a statement which you were shown earlier on by a victim, that the person who was killed was not a member of the IFP as you have alleged. Do you have any comment towards that?

MR GUMEDE: Please repeat that question.

MR KOOPEDI: There is a statement by the victim that the deceased Mr Msimango was not a member of the IFP as you have stated in your application. Now do you have any comment towards that statement?

MR GUMEDE: Yes, what I can state is I committed this act because I had received orders from someone who was certain that the deceased was an IFP member.

MR KOOPEDI: Okay. Now this deed that you did or participated in, was there any political objective that you sought to achieve?

MR GUMEDE: Yes, it happened during the beginning of the violence in Thokoza therefore my actions were committed in a time of war.

MR KOOPEDI: Were you, did you receive any personal gain? Were you paid or anything?

MR GUMEDE: No, I did not gain anything.

MR KOOPEDI: Now in terms of what you've just told this Honourable Committee and what you have disclosed both in your application form and your statement, do you think that you have fully disclosed all the relevant facts to this Honourable Committee?

MR GUMEDE: That is correct, I have disclosed everything that I know.

MR KOOPEDI: Chairperson, that will be the applicant's application.

CHAIRPERSON: Thank you Mr Koopedi. Mr Gumede, who is the person that gave you the orders?

MR GUMEDE: At that time, the Commander of our section was Sam Makoba, he was the person who issued the order.

CHAIRPERSON: What section were you part of?

MR GUMEDE: It was Mandela Section in Thokoza but it was commonly known as ...(indistinct)

CHAIRPERSON: And what unit were you part of?

MR GUMEDE: I was a member of the Self Defence Unit.

CHAIRPERSON: And were you affiliated to any political organisation and if so, which one?

MR GUMEDE: The ANC.

CHAIRPERSON: You say it was at the commencement of the violence. Was that the violence involving the residents of Thokoza and the occupants of the hostels in the area?

MR GUMEDE: Yes, it was at the beginning of the violence. That is when the hostel dwellers would chase the residents out of their homes so that their organisation is the permanent one in the area.

CHAIRPERSON: What was their organisation?

MR GUMEDE: It was the IFP.

CHAIRPERSON: Yes, Ms Thabethe, questions?

MS THABETHE: Thank you Mr Chair.

CROSS-EXAMINATION BY MS THABETHE: Mr Gumede at the time of the commission of the offence, were you staying at A49 in Thokoza?

MR GUMEDE: I was residing at home, but at the time I did not normally spend my evenings there because we used to patrol the area, but my home was situated there.

MS THABETHE: And the deceased and his family were staying at A52 at Mazimogo Street, is that correct?

MR GUMEDE: That is correct.

MS THABETHE: So would I be correct if I say you were separated by three houses in terms of the numbering that appears?

MR GUMEDE: If I'm not mistaken there are two houses that separate us.

MS THABETHE: And where did you Commander Sam Makoba stay?

MR GUMEDE: He resided in our section but I do not remember the street names, but it is one of those houses at the very periphery of our section.

MS THABETHE: So would I be correct if I say, you were much more closer to the deceased's house than Sam Makoba was?

MR GUMEDE: That is correct.

MS THABETHE: My instructions are that the Msimango house, or the Msimango home was a house that sold beers, is that correct?

MR GUMEDE: Yes, that is so.

MS THABETHE: Would I also be correct to say that there were people coming in and out as a result of buying, purchasing the beer?

MR GUMEDE: I would not comment on that because I was away at work for most of the time during the day.

MS THABETHE: But you would agree with me that it's common cause if they were selling liquor, there would be people coming in and out to buy the liquor, that would be common cause, wouldn't you say?

MR GUMEDE: Yes, I would agree with you.

MS THABETHE: As a person who stayed two houses away from the Msimango family, did you know Mr Msimango very well, the deceased?

MR GUMEDE: What do you mean when you say very well? Are you referring to knowing him as a neighbour or knowing him on a personal level.

MS THABETHE: Whichever you knew him. Did you know him as a neighbour, did you know him very well?

MR GUMEDE: I knew him as one of the elders in the area.

MS THABETHE: My instructions are that he was a very friendly and sociable man and as a result people used to come in and out of his house and some people used to gather at his yard to play cards. Have you ever witnessed this?

MR GUMEDE: As you mentioned before that they used to sell liquor, people would go to his home to drink, but when the violence commenced most of the people did not frequent his place.

MS THABETHE: Your section in Thokoza, is it correct that it was an ANC dominated area?

MR GUMEDE: That is correct, but there were boundaries, for instance there will be a place that it is commonly known that it is a place that is dominated by IFP. Our section was quite large and it was divided into two.

MS THABETHE: My instructions are that the section that you lived in and that Mr Msimango stayed in was an ANC dominated section. Would you dispute this or what is your response to that?

MR GUMEDE: As I mentioned earlier on our section ...(indistinct) was huge. It started from around the hostel upwards but it was commonly known that there areas within the section that were dominated by the ANC and another one that was dominated by the IFP.

MS THABETHE: To bring the point much more closer home, if you check in your application on page 4, you say it's paragraph B, 10(b) page 4 of the bundle, it's the fifth line, you say:

So in essence what you are saying here is that your area was an ANC stronghold, that's what I wanted to confirm.

MR GUMEDE: Yes, as I mentioned earlier on, the area was divided and our side was called Mandela Section, in an attempt to divide the area so that there demarcations that form, this point to that point is Mandela Section, but it was all under one huge section, but there was a demarcation within this section that we as the ANC resided in one section and the IFP resided on the other.

MS THABETHE: Mr Gumede, let's move on. When you were asked by my colleague, your legal representative, as to the issue of the political affiliation of the deceased, you indicated that you were merely following orders, do you remember that?

MR GUMEDE: Yes, I do remember.

MS THABETHE: In your application, you indicated that Mr Msimango was an IFP member and an IFP supporter and he used to gather, oh, that's also on page 4, paragraph (b), he used to gather and hold meetings at his house. After you go and you're inferring that he was an IFP member. My question is, what evidence did you have that the deceased was an IFP member?

MR GUMEDE: Personally I do not have firm evidence but what I do know is that the matter with regards to Mr Msimango had already been pre-discussed, that he was an IFP member.

MS THABETHE: You said, I just want to quote you in Zulu. ...(not interpreted) By whom?

MR GUMEDE: It was something that had been discussed by the Commander because during the day he is one of the people who would go around our section and they would investigate and inquire as to what was happening so during that week he called me, because I was also an operator within our section. He summoned me and informed me that Mr Msimango was an IFP member and that he had witnessed other IFP members at his home and he had suspicions that there were IFP meetings being held at that home. Even with regards to our meetings, the first meeting that we held had to be abandoned because we were attacked by IFP member, therefore it was clear that there were some moles within our section.

MS THABETHE: Can I cut you, Mr Gumede? My question was simply, what evidence did you have and from your response, would I be correct to say you personally did not have evidence, but you relied on what Mr Sam Makoba told you, is that your evidence?

MR GUMEDE: That is correct.

MS THABETHE: What I don't understand, Mr Gumede, and I would like you to clarify this form me, you stayed two houses away from the deceased and yet you say you personally had no evidence as to whether he was IFP or not and you alleged that a person who stayed far away from you, that is Sam Makoba, is the one who had evidence about your neighbour. How is that possible?

MR GUMEDE: I have already mentioned that I did not spend a lot of time in the township. I went to work in the mornings and at that time we did not normally frequent Mr Msimango's side of the section. When the violence started, we were based at Sam Makoba's side of the section.

MS THABETHE: I don't understand your explanation Mr Gumede and I put it to you that if the deceased Mr Msimango was an IFP member, you would have known about it because you stayed two houses from him. You would have had more information than Sam Makoba did. What is your response to that?

MR KOOPEDI: Chairperson, with respect, may I be allowed to object to this line of questioning? I believed the applicant has explained clearly that at a certain stage, although his home was still two houses from the deceased's home, but he was no more staying at home because of the troubled times. They hid themselves elsewhere and this Commander is the person who would, during the day and this is what he said in evidence, during the day go to the area and clearly he would be the one knowledgeable.

MS THABETHE: Can I respond Mr Chair?

CHAIRPERSON: I don't know, I mean it's a proposition that you put to the applicant.

MS THABETHE: So Mr Chair?

CHAIRPERSON: I say, it's a proposition that you put to the applicant, I don't know, perhaps he wants just to respond to it.

MS THABETHE: Mr Chair, I just want to respond to what my learned colleague has just put on record.

CHAIRPERSON: Yes.

MS THABETHE: Actually, I asked the applicant where he stayed and he said he stayed at his home but they would go out and patrol sometimes, but he emphasised the fact that he stayed at home. He never, it's not in the evidence that they used to go and hide or sleep elsewhere.

CHAIRPERSON: Yes.

MS THABETHE: Yes, I just want to correct that for the record.

CHAIRPERSON: Yes, it's neither here nor there. You put the proposition that he should have known the deceased better. I don't know, he can respond to that, I mean it's a proposition that you put to him. Did you follow, Mr Gumede? Ms Thabethe says that because you lived close by there, you should have known the deceased, Mr Msimango better, you should have known whether he was IFP or not.

MR GUMEDE: I will repeat. Firstly, even though Mr Msimango stayed near my home, I had never been to his house to inquire as to his political affiliation, because those were the matter that were not discussed. We did not trust one another as neighbours.

ADV SANDI: Sorry. Before these troubles of political violence started in this area, had you ever been to his house?

MR GUMEDE: Yes, maybe I would go there to buy a beer. I would go there and buy the liquor and return home.

ADV SANDI: Did you ever observe any indication that he was a member of the IFP?

MR GUMEDE: The IFP hostel dwellers or those who resided near the hostel, used to drink there.

ADV SANDI: Yes, but it would seem from what you've just said, everyone who wants to buy liquor would go there, even yourself, you would go there if you want to buy liquor, but you were not IFP.

MR GUMEDE: Yes, that is correct. Before the violence, there is nothing that I can put here to suggest or to confirm that he was an IFP member.

ADV SANDI: Miss Thabethe.

MS THABETHE: I want to put it to you further Mr Gumede, that it's very improbable that a person who is an IFP member, as you suggest, staying in an ANC stronghold section, would hold an IFP meeting during the day, as you alleged that your Commander advised you. What is your response to that?

MR GUMEDE: I would not be able to respond to that, but I only did what I was ordered to do and I also did it for a specific reason.

ADV BOSMAN: Mr Gumede, you did not do what you were ordered to do, you were ordered to attack the whole family.

MR GUMEDE: Please repeat that.

ADV BOSMAN: You were ordered to attack the whole family, all of the Msimango family, were you not?

MR GUMEDE: Yes, we were given an order to attack the Msimango home.

ADV BOSMAN: Did you know the other Msimango family members?

MR GUMEDE: The person who resided there at the time was Mr Msimango and his wife.

ADV BOSMAN: So is that the family you were referring to, just Mrs Msimango?

MR GUMEDE: Yes, I will say so.

ADV BOSMAN: How well did you know her?

MR GUMEDE: As an elder, I would not claim to have known her well, but I would greet her when we meet in the street and that was the extent of our relationship. We'd never held any discussions.

ADV BOSMAN: So why did you not follow the order and attack her as well? This is what I would like you to just clarify.

MR GUMEDE: The Commander, Mr Makoba, informed me that Mr Msimango is an IFP member and when I inquired about his wife, he said no, she is not a member, but because they share a house, the house should be attacked in its entirety, everyone inside the house should be attacked.

ADV BOSMAN: Did you argue with him about it?

MR GUMEDE: Yes, I did.

ADV BOSMAN: And what was his response to that?

MR GUMEDE: I argued with him on the basis that Mrs Msimango was a quiet person and we respected her, so I argued with him on the basis that she not a danger to us.

ADV BOSMAN: Did you ask him why he thought Mr Msimango was an IFP, because you didn't know?

MR GUMEDE: Yes, I did ask him as to what reason he had and he informed me that they would go out during the day to the ...(indistinct) home which we used and he said from that house, he observed IFP people going in and out of Mr Msimango's home. At that time it was difficult for IFP people to come to our section and I think that is why he became certain that he must be one of them because at that time it was not easy for them to come to our section.

ADV BOSMAN: Thank you.

MS THABETHE: Thank you. Mr Gumede, I want to refer you to your application again and I want clarity on this. You say, it's on page 4 again of the bundle, 10 (b), it's the 7th line, or the 6th line, you say, I'll paraphrase it, or let me read it as it is. You say:

Who are you referring to here? Who were forcing people to join the IFP?

MR GUMEDE: I am referring to the IFP people.

MS THABETHE: Would this exclude or include Mr Msimango?

MR GUMEDE: I cannot say that once came to my home and forced us to join the IFP or that I witnessed him doing so to other people.

MS THABETHE: Thank you Mr Chair, I have no further questions.

CHAIRPERSON: Thank you Ms Thabethe. Has the Panel got any other questions?

ADV SANDI: No questions.

CHAIRPERSON: Mr Koopedi, re-examination?

MR KOOPEDI: Nothing in re-examination thank you Chair.

CHAIRPERSON: Yes, Mr Gumede thank you, you're excused.

WITNESS EXCUSED

MR KOOPEDI: Chairperson, there is no other witness which we wish to call and this means that this will be the entire application by this witness before you.

CHAIRPERSON: Yes, thank you. Ms Thabethe, have you got any evidence?

MS THABETHE: Mr Chair, I would call two witnesses. I'll be short. The first witness is the wife to the deceased, Mrs Didi Molefe.

CHAIRPERSON: Say again.

MS THABETHE: Mrs Didi Molefe.

CHAIRPERSON: Yes. Will Mrs Molefe come forward please?

MS THABETHE: Mr Chair, when she's sworn in, can I have an indulgence of one second, or two seconds please?

CHAIRPERSON: Yes.

MW THABETHE: Thank you.

DIDI GEORGINAH MOLEFE: (sworn states)

CHAIRPERSON: Yes, Ms Thabethe.

MS THABETHE: I'm indebted to you Mr Chair.

EXAMINATION BY MS THABETHE: Mrs Molefe, is it correct that you are the wife to the deceased, Mr Msimango?

MRS MOLEFE: That is correct.

MS THABETHE: Is it also correct that your house used to sell liquor?

MRS MOLEFE: That is correct.

MS THABETHE: Can you briefly describe to the Committee whether there was any particular group that used to come and buy liquor from your house, or anybody was welcome to come and buy liquor from your house?

MRS MOLEFE: Everyone used to be welcome in my home, it was not a specific group.

MS THABETHE: Is it also correct, Mr Molefe, that there used to be people who would gather outside your yard with the deceased?

MRS MOLEFE: Yes, they would play cards with my husband.

MS THABETHE: You have heard the applicant and I've also advised you from his application that he alleges that there were IFP meetings that used to be held in your house. Do you have any knowledge of this?

MRS MOLEFE: That is not true. There was never an IFP meeting at my home.

MS THABETHE: If there was an IFP meeting at your home, would you have known this fact?

MRS MOLEFE: Yes, I would have known because I was the woman of that house.

MS THABETHE: You have also heard the applicant saying that the deceased, your husband, was an IFP member. What is your response to that?

MRS MOLEFE: That is not true.

MS THABETHE: Why do you say so?

MRS MOLEFE: There is nothing that I know as far as I'm concerned, that indicated that he was an IFP member and he had never joined the IFP.

MS THABETHE: Do you know Sam Makoba, who the applicant has alleged to be his Commander?

MRS MOLEFE: I knew him briefly.

MS THABETHE: Did he stay near or far from your house?

MS MOLEFE: He stayed far from my home.

MS THABETHE: You've also heard the applicant saying that during, Sam Makoba says, during the day there were meetings that used to be held in your house and these meetings were IFP meetings, do you have any knowledge of this?

MRS MOLEFE: I do not know about that. I used to go to work, but my husband never explained that he held such meetings.

MS THABETHE: At the time of his death, was the deceased working?

MRS MOLEFE: No, he was unemployed.

MS THABETHE: Thank you Mr Chair, I have no further questions.

CHAIRPERSON: Thank you. Mr Koopedi any questions?

CROSS-EXAMINATION BY MR KOOPEDI: Just one question, Chairperson. I thought we don't have questions. I'm not sure if I heard you correctly when you said you were working. Does this mean that during the day you were not at home?

MRS MOLEFE: Yes, I was employed.

MR KOOPEDI: So the answer is, during the day you would not be at home?

MRS MOLEFE: Yes, I was at work.

MR KOOPEDI: Thank you, no further questions, Chairperson.

CHAIRPERSON: Thank you, Mr Koopedi. Is there anything from the Panel?

ADV SANDI: Yes, just one question. Did you have to go to work everyday? Which days of the week did you go to work?

MRS MOLEFE: I would be working on weekdays and I would normally be home on weekends.

ADV SANDI: Did you husband every express any desire to join, or to support any political organisation?

MR MOLEFE: No, he never mentioned it to me.

ADV SANDI: Thank you. Thank you Chair.

ADV BOSMAN: Mrs Molefe, do you know of any reason why the applicant would have killed your husband?

MRS MOLEFE: Please repeat that.

ADV BOSMAN: Do you know of any reason why the applicant killed your husband?

MRS MOLEFE: No, I do not.

ADV BOSMAN: Thank you Chairperson.

CHAIRPERSON: Thank you. Ms Thabethe, any re-examination?

MS THABETHE: No re-examination Mr Chair, thank you.

CHAIRPERSON: Mrs Molefe, thank you very much, you are excused.

WITNESS EXCUSED

MS THABETHE: I will call another last witness Mr Chair, Mrs Elizabeth Ngcobo, please.

CHAIRPERSON: Yes. Will Mrs Ngcobo come forward?

ELIZABETH SIMANGELE NGCOBO: (sworn states)

CHAIRPERSON: Ms Thabethe.

MS THABETHE: Thank you Mr Chair.

EXAMINATION BY MS THABETHE: Mrs Ngcobo, can you explain to the Committee what your relationship was to the Msimango family or what it is?

MRS NGCOBO: I was the neighbour, they were my next-door neighbours.

MS THABETHE: Maybe before I ask this question, did you know Mr Msimango very well?

MR NGCOBO: Yes, I knew him very well from my childhood and we were both employed by the same firm.

MS THABETHE: What kind of a person was Mr Msimango and what kind of a house was Msimango's home?

MRS NGCOBO: The Msimango household was well-liked. For instance, if you had a problem, you would approach him and he would assist you.

MS THABETHE: Is it correct that they used to sell liquor there?

MRS NGCOBO: That is correct.

MS THABETHE: What other activities did you observe happening there as a neighbour, if there are any?

MRS NGCOBO: People will go in and out, buying liquor or they will sit around, drink and play cards and if they were soccer matches on TV they would also gather to watch those matches.

MS THABETHE: Did you ever know the deceased to belong to any political organisation?

MRS NGCOBO: No, I did not.

MS THABETHE: Thank you Mr Chair, I have no further questions.

CHAIRPERSON: Thank you Ms Thabethe. Any questions Mr Koopedi?

MR KOOPEDI: No questions for this witness, thank you Chair.

CHAIRPERSON: Thank you. Panel?

ADV SANDI: Yes, during this conflict between the ANC and the IFP in that area, do you know about this conflict?

MRS NGCOBO: Yes, there was violence between the hostel dwellers and the ANC.

ADV SANDI: And the people, do you know if there were people coming from hostels amongst those who would visit the house of Mr Msimango, do you know if they included hostel dwellers?

MRS NGCOBO: I will just see people going in and out, I did not know whether they were hostel dwellers or not. I do not know.

ADV SANDI: When there was violence in this area, did people stop coming to the house of Mr Msimango?

MRS NGCOBO: They continued. They would go to his house because even on the day that he was killed, there were people in his home, the Zulu's occupied most of our houses.

ADV SANDI: Thank you. Thank you Chair.

ADV BOSMAN: Did you know Mr Sam Makoba?

MRS NGCOBO: Yes.

ADV BOSMAN: Did you know him to be involved with the ANC politics and structures?

MRS NGCOBO: Yes, he was a Commander of the ANC.

ADV BOSMAN: Thank you, Chairperson.

CHAIRPERSON: Thank you. Re-examination, Ms Thabethe?

MS THABETHE: No re-examination Mr Chair.

CHAIRPERSON: Thank you.

ADV SANDI: The applicant, Mr Gumede, was he known to you?

MRS NGCOBO: Yes, he grew in the area, I know him.

ADV SANDI: Did you know if he belonged to any political organisation?

MRS NGCOBO: I do not know, but I knew that they used to patrol the area. I think he was part of the ANC.

ADV SANDI: Are you saying he was one of the people, are you saying the applicant, Mr Gumede, the gentleman who is here today, was one of the people who used to patrol the area?

MR NGCOBO: That is so. Young men in our area used to patrol the area.

ADV SANDI: Thank you. Thank you Mr Chairman.

CHAIRPERSON: Thank you. Have you got re-examination Ms Thabethe?

MS THABETHE: No re-examination Mr Chair.

CHAIRPERSON: Mrs Ngcobo, thank you very much. You are excused.

CHAIRPERSON: Anything else, Ms Thabethe?

MS THABETHE: This concludes my evidence, Mr Chair.

CHAIRPERSON: Thank you. Mr Koopedi have you got any submissions on the merits of the application?

MR KOOPEDI IN ARGUMENT: A very brief one, Chairperson and Honourable Committee Members.

It is my submission Chairperson, Honourable Committee members that the applicant, who has come before you, has in the first instance complied with one of the pillars of amnesty, being a full disclosure. It is my submission that this applicant here was never arrested and therefore he was not compelled by imprisonment or any other reason to come before this Committee. My instructions are that he was compelled by the need to further reconciliation in our land and basically that is why he came forward with his application and he has therefore not hidden any fact.

The second issue, which I would briefly go into Chairperson, is the fact whether the deceased was an IFP member or not. Chairperson, the applicant has stated that his information that the deceased was IFP was gained from someone else. However, even that fact may not be material to this application. What I want to stress, Chairperson, is that there is this undisputed evidence that he was acting on an order from his Commander and perhaps to clear something on what came on earlier in this hearing, the initial order apparently was to attack the whole house, but as it can be gleaned from the application form and the statement, the applicant subsequently engaged his Commander in dialogue and to say to him why eliminate the whole house and Chairperson, I would refer you to the application form, together with the statement, where it was finally agreed that not the whole house should be attacked and someone who is an implicated person, was requested to accompany the applicant Chairperson, to go and fulfil this mission.

So what I'm stressing here, Chairperson, is that the applicant acted on orders from his Commander. And Chairperson, lastly I would want to stress also that the applicant has testified that there was no personal gain on his side and it is therefore my submission Chairperson, that this applicant before you should be granted amnesty. Thank you Chairperson.

CHAIRPERSON: Thank you Mr Koopedi. Ms Thabethe, submissions?

MS THABETHE: Yes, Mr Chair.

MS THABETHE IN ARGUMENT: Mr Chair, it's my submission that the applicant stayed or lived two houses from the deceased. He knew him well but he has given evidence that he didn't know which organisation he belonged to. My argument on that, Mr Chair, is that it's very improbable that Sam Makoba, who stayed far away, would know the political affiliation of the deceased and the applicant, who stayed two houses away from the deceased's house would not know what political affiliation Mr Msimango belonged to. With due respect, Mr Chair, it's my argument that this is very improbable. On the question ...(intervention)

ADV BOSMAN: Ms Thabethe, given the fact that this was an ANC area, Mr Makoba was known to be an ANC Commander, would he not have been privy to information from the area about the activities going on at houses?

MS THABETHE: Yes, Madam Chair. He would have been privy to that, more especially because it has become evident that they used to patrol the area. He would have been in a position to know whether Mr Msimango belonged to IFP or ANC if at all he did belong to any political organisation.

On the question of having followed orders, my argument is that the family would still oppose the application on the basis that there was no political objective in that the basis for which the orders were given is unfounded. It is our submission the deceased was not an IFP member and you've heard two witnesses who have testified to that effect.

On the question of what the reasons might be, or the motivation for having killed Mr Msimango, we might never know the reasons and the reasons may not be clear or apparent to us or to the members of the Committee because we don't know the social interactions between neighbours in that area and I don't want to delve into that, but it is my humble submission that on the basis that the deceased was not an IFP member, the act by the applicant was not political. Thank you Mr Chair.

CHAIRPERSON: Thank you Ms Thabethe. Mr Koopedi, any reply?

MR KOOPEDI: Chairperson, I am tempted not to reply.

CHAIRPERSON: Thank you.

ADV SANDI: Sorry, if I can just ask one question. Perhaps I should have asked this question to the applicant. What was the political objective of this crime anyway?

MR KOOPEDI: If the question is directed to me, I will try and answer it by making reference to the application form. In the

application form that same question is asked in terms of the political objective. It is stated there that since Mr Msimango was perceived or was taken to be an IFP member and that the IFP was bent on taking over the area, I believe that the reason behind the operation would be to stop the IFP from taking over the area.

ADV SANDI: Yes, but there was, there's no evidence about the deceased personally, that he took part in those activities of forcing residents in that area to join the IFP.

MR KOOPEDI: That is indeed so. I seem to have followed the evidence given here today that it appears that the deceased was not a member of the IFP, but during the day he would be at home and unfortunately the victim was employed and does not know what happened during the day. The applicant says he was told by his Commander that people from the IFP would go to the area. He has explained that he wasn't there during the day, so he wouldn't know. The person who would be most knowledgeable and perhaps the best person to answer that question would have been the Commander who gave this command to this applicant.

ADV SANDI: He was being given instruction to kill his very immediate neighbour. He did not bother to find out, to try and verify these allegations.

MR KOOPEDI: If I may point out and revert to something that has been mentioned earlier, the order was to attack the entire house. If one looks at the application and the statement, apparently about 60 people had already gathered to go and attack this house. When this applicant arrived at the place where people were and was told that we're going to attack the house of the deceased, it had already been decided. When he came he sort of queried what his Commander said, not that that would matter, but his Commander listened to him and ultimately the agreement was that only the deceased should be attacked and not the entire house and I believe that is why then only two people were sent to go to this house and no more the whole group.

ADV SANDI: Thank you. Thank you Chair.

CHAIRPERSON: Are there any other submissions?

MR KOOPEDI: No other submissions Chairperson.

CHAIRPERSON: Yes, thank you. Yes that concludes the evidence in this matter. We will consider the matter and we will notify the parties as soon as the decision in the matter is available, so at this stage the decision is reserved.

MR KOOPEDI: As it pleases Chairperson.

CHAIRPERSON: Thank you Mr Koopedi for your assistance.

MS THABETHE: Sorry Mr Chair, I was hoping that I would be given an opportunity to reply. I don't know whether I'm jumping the gun.

CHAIRPERSON: Sorry?

MS THABETHE: To reply.

CHAIRPERSON: Yes, have you got anything to say?

MS THABETHE: Yes, yes Mr Chair I do, arising from the discussion that took place.

CHAIRPERSON: Yes?

MS THABETHE IN REPLY: I just wanted to outline, Mr Chair, that my learned colleague talks about the fact that the victim, Mrs Molefe, was working during the day. This was a house which was selling liquor to ...(indistinct - static interference)

people used to come in an out all the time and that wouldn't justify the fact that there would be a meeting that would be held during the day, more especially considering the fact that this was an ANC stronghold and it would be very much improbable to hold an IFP meeting during the day in an ANC stronghold.

CHAIRPERSON: Yes, this was at the commencement of the violence, remember. The violence had just commenced at this stage.

MS THABETHE: Yes, Mr Chair.

CHAIRPERSON: So it was not after the battle lines had been clearly drawn, the violence had just commenced.

MS THABETHE: My argument still remains, Mr Chair, that it would make sense for Mr, the deceased, if he was an IFP to go to an IFP stronghold to have such meetings.

CHAIRPERSON: Yes, but it just, the point that I'm making is, it had just started, this was not at the stage when the battle lines were clearly drawn in Thokoza, in the township, it had just started, so people were very much still manoeuvring, that's what I understood. This was at the commencement of the violence.

MS THABETHE: I thought that the applicant had clearly stated that there were demarcations.

CHAIRPERSON: Yes, well they were obviously in the course of trying to demarcate the areas, but this battle had just started off. Your areas would only have been established once the balance of power was clearly established in a particular area, they were still fighting very much at that time, so you know, at a later stage, assume late into that conflict which we've heard a lot about, later in that conflict when the battle lines were really very clearly drawn, there were circumscribed sections of the township that were IFP together with the hostel and the rest of the residential area was a clear ANC stronghold, then of course the battle lines are very clearly drawn, the balance of power is established, the areas have been taken over by the respective contending parties and there you have it, but at that time people were just moving, they were still moving around. There was no clear situation of balance of power in any particular area.

ADV BOSMAN: And Mrs Molefe clearly indicated that people from any, any person would be welcome in their house.

MS THABETHE: But I was referring specifically to an IFP meeting. A meeting where IFP members would hold a meeting in the deceased's house, not just playing cards, not just buying liquor, but an IFP meeting and my argument is that this would be very improbable in an ANC stronghold because even though the violence was not rife then, but there were clearly sections that, this section was ANC stronghold, this one was IFP.

CHAIRPERSON: No but I mean, if it was at the commencement of the conflict, why would the IFP pull back and not try to rather conquer the area themselves? It was just commencing. I mean you know that was a deep seated conflict, why would they give up that easily? The violence had just commenced and now they give us, well that's an ANC area, why wouldn't they try to recruit people in the area, as the applicant says here and try and establish their own presence there. I mean they were fighting for turf, they were not going to just give turf away to the ANC, they were going to try and establish the balance of power in their favour, they would have tried to establish as much of the are in their favour as possible, so why would they now chicken out at that point?

MS THABETHE: Mr Chair, they would have tried to win people over, but I'm talking specifically about the deceased. The chances are it would have been very improbable for him to risk, you know, his image. He was serving liquor, different types of people came into his house, it would have been very unlikely for him to risk that image and hold an IFP meeting.

ADV SANDI: Yes, it can be improbable but that does not mean that it is not possible.

MS THABETHE: Yes, yes for sure.

ADV SANDI: It is possible.

MS THABETHE: Yes.

ADV SANDI: And none of the two witnesses you called can testify as to what had happened inside the house whilst the deceased was there and these people who were visiting. None of them can say what was happening there.

MS THABETHE: Except to say that Mrs Molefe did indicate that there were no meetings held at her house except for people who came to visit and they would sit outside the yard and play cards.

CHAIRPERSON: No but she couldn't say what was going on during the day, she was working, she was asked specifically and I think that's the point that my colleague is making. It hasn't excluded the possibility.

MS THABETHE: Yes, I would say it's very much unlikely that.

CHAIRPERSON: Yes, no we've got that submission of yours, yes, we understand.

MS THABETHE: Given the issues that I've highlighted.

CHAIRPERSON: Yes.

ADV SANDI: So you've noticed that the second witness that you called Mrs Ngcobo confirmed that the applicant was in fact one of those people who patrolled the streets, he was involved in trying to combat this violence.

CHAIRPERSON: There doesn't appear to be any bad blood between them, there seems to be no other reason that was suggested for the applicant to be involved in an attack upon Mr Msimango.

MS THABETHE: Socially we don't know what took place Mr Chair. Unfortunately we are confined to the facts in front of us yes. And another issue, Mr Chair, that I wanted to highlight is the fact that the applicant indicated that he made an opinion with regard to Mrs Molefe's political affiliation, hence he did not attack the whole family and my submission is that, or my argument is that he could have done the same as far as the deceased is concerned, investigate or make an opinion as to whether he really was an IFP member or not.

CHAIRPERSON: Yes, he says that when they debated this matter, the Commander himself confirmed that Mrs Molefe was not affiliated. The husband was, but she was not, she was not affiliated and on that basis the applicant argued the case with them and said "But why must you wipe out the whole family, if it's only the one person that seems to be on the other camp".

MS THABETHE: Thank you Mr Chair, I have no further questions, I have no further submissions.

CHAIRPERSON: Thank you Ms Thabethe. Yes, we will reserve the decision in this matter and we will notify you as soon as that is available. Once again thank you Mr Koopedi and Ms Thabethe. Thank you for your assistance.

MR KOOPEDI: We thank you too, Chairperson.

MS THABETHE: As the Committee pleases.

CHAIRPERSON: Yes, we excuse you. Can we get back to the matter of Thanjekwayo and others?

MR KOOPEDI: May we be excused formally, Chairperson?

CHAIRPERSON: Yes, of course.

MR KOOPEDI: Thank you.

CHAIRPERSON: Yes, thank you.

MR KOOPEDI: Chairperson I seem to know where they are and seem to know where the problem is. If I can enlighten? Apparently there are about 10 would be applicants in that hall, when we have four applications and apparently all of them say they have made applications and those applications were forwarded to the TRC and apparently Miss Patience Molekane, from our office, the ANC office, recognises them and also believes that these applications were made and she thinks that she has copies at the office. So I think the delay is being caused solely by that fact.

CHAIRPERSON: By this problem?

MR KOOPEDI: Yes.

CHAIRPERSON: Alright. Thank you Mr Koopedi, but I see that it's taking shape at this stage.

MS VILAKAZI: Honourable Chair, may I put this to the Committee that I have received a message that I have a pressing matter to attend to, not later than, I have to be in Pretoria not later than half past four. That being the case and taking cognisance of the fact that the victim's family or the next of kin have withheld the right to cross-examination, I could listen to the recordings tomorrow.

CHAIRPERSON: Sorry, if you are happy with that arrangement, then there's no problem with that.

MS VILAKAZI: Thank you.

CHAIRPERSON: Yes. Would you want to be excused at this stage, or what?

MS VILAKAZI: That is my request, Honourable Chair, looking at the time.

CHAIRPERSON: Yes. Well if you are satisfied that you are able to deal with the matter on the basis that you suggested, then of course we don't have any difficulty. Then you can be excused.

MS VILAKAZI: I'm indebted to you.

CHAIRPERSON: Thank you very much. Mr Honnorat you said that the first applicant would be Mr Zondo?

MR HONNORAT: We've got a problem, perhaps I must take a second to perhaps elaborate on that, in the sense that the whole thing really started with Mr Tshabalala, who's status as applicant in this matter is in dispute at the present moment. There are efforts being made now to obtain the copies of the application made by Mr Tshabalala as well as Mr Fakude who was accused number 4 in court, who apparently hasn't made an application for amnesty and the whole problem is a problem of the sequence of, the logical sequence, I wouldn't like the house to get totally out of step with the chronological sequence of events. Mr Tshabalala is really the one who comes first and the kind of evidential edifice would be built on the wrong foundations if we put him later, at the end, so that is the problem that the applicants are experiencing at the moment, that the proper situation would be for Mr Tshabalala to put his evidence first, followed by Mr Zondo and perhaps my attorney can elaborate on that further and in this sense the applicants would require the matter of Tshabalala, his status as applicant, to be resolved as the first thing.

CHAIRPERSON: No, well if we don't have his application before us then there's no way that we're going to be able to resolve his matter and therefore we want to start with the application. If it has to be resolved, we must resolve it at some stage, but in the meantime you know, we have to get going because we're also told by the Correctional Services that they have to get your clients back to prison by half past four, or in any case legally at half past four, so we'll attempt to do as much as we can with that time which is now available. We'll have to live with the sequence out of order at this stage, we'll have to just compensate for that at some later stage, but until Mr Tshabalala's position is clearer in terms of the documentation and so on, which hasn't arrived yet, I think we'll have to proceed with the others who are actually before us.

MR HONNORAT: Yes, then Mr Chairman, can we then start with applicant number 4, Mr Peter Shabangu?

--------------------------------------------------------------------------PETER SHABANGU: (sworn states)

CHAIRPERSON: Mr Honnorat.

MR HONNORAT: Yes, Mr Chairman, I will lead Mr Shabangu's evidence.

CHAIRPERSON: Thank you.

EXAMINATION BY MR HONNORAT: Mr Shabangu, is it correct that you have made an application for amnesty concerning the incident which took place in 1993 resulting in the death of Mr Jacob Manoto? Is it correct that you are applying for amnesty concerning that incident?

MR SHABANGU: That's correct.

MR HONNORAT: Have you got knowledge of that incident?

MR SHABANGU: Yes.

MR HONNORAT: Can you explain to the court your knowledge of the deceased, Mr Jacob Manoto, prior to the incident of his killing?

MR SHABANGU: I didn't know him.

MR HONNORAT: Can you explain to the court, whether at the time of the incident, you were a member or a supporter of any political organisation or liberation movement involved in the struggle against apartheid?

MR SHABANGU: Yes.

MR HONNORAT: Can you give details of that to the house.

MR SHABANGU: I was a member of the ANC Youth League.

MR HONNORAT: For how long had you been a member of the ANC Youth League prior to the incident?

MR SHABANGU: I joined ANC in 1990.

MR HONNORAT: What was your reason for joining the ANC in 1990?

MR SHABANGU: I joined the ANC in order to fight against the political discrimination.

CHAIRPERSON: Sorry Mr Honnorat, just a minute. Adv Bosman hasn't got any sound over her headset here. Where's the technician? Can you just attend to this headset here, please?

MR SHABANGU: Yes, you said you joined in order to ...(intervention)

MR HONNORAT: Fight against political discrimination?

CHAIRPERSON: Yes.

MR HONNORAT: Can you explain to the Commission what was the attitude of the ANC and in general of the liberations movements towards people perceived in the community as being police informers?

MR SHABANGU: The ANC didn't accept that. They used to work in collaboration with the police and at the time we didn't trust the police.

MR HONNORAT: Now from your personal experience of your connection with the ANC Youth League since 1990, what was the attitude concerning what should be done with a person found to be a police informer.

MR SHABANGU: He should be killed.

MR HONNORAT: Have you got any knowledge of a meeting which took place on the 19th of April 1993, attended by members of the ANC Youth League in the Diepkloof area?

MR SHABANGU: Yes.

MR HONNORAT: Can you give some details of what happened at that meeting to the house.

MR SHABANGU: It was on the 19th, on Monday when we had a meeting.

MR HONNORAT: What was the meeting about?

MR SHABANGU: It was the ANC Youth League meeting.

MR HONNORAT: And what was discussed at that meeting?

MR SHABANGU: We were discussing about one boy who raped a woman.

MR HONNORAT: Yes, apart from that?

MR SHABANGU: And thereafter we had to discuss about two ladies.

MR HONNORAT: Who were these ladies?

MR SHABANGU: I don't know their names, I know that one of them is Sipho's sister and the other is Sipho's wife.

ADV SANDI: Sorry Mr Honnorat. Did you say two ladies came in or did you say you discussed about two ladies?

MR HONNORAT: He said they discussed.

MR SHABANGU: We were discussing about the lady who had been raped and thereafter Sipho’s wife and Sipho's sister entered.

MR HONNORAT: What happened after that?

MR SHABANGU: Sipho's wife explained to us that Mr Manoto has requested the police to come and search their place because Sipho was suspected to have a firearm in his possession.

MR HONNORAT: What happened further at that meeting?

MR SHABANGU: We discussed the matter and we suggested that it should go to the Civic which was supposed to solve the problem.

MR HONNORAT: Was there any decision taken by the ANC Youth League at the meeting concerning this issue?

MR SHABANGU: No, we didn't take a decision. However, we referred them to the Civic Organisation to help them.

MR HONNORAT: What did the Civic Organisation do?

MR SHABANGU: I wouldn't be able to know.

MR HONNORAT: Was there somebody mandated by the ANC Youth League at the meeting, to go and speak about this problem to the Civic Organisation?

MR SHABANGU: No, the two complainants were supposed to go there because they were the people who had the problem.

MR HONNORAT: Did you attend any other meeting subsequent to the 19th of April 1993 in which the issue of the deceased as being a suspected police informer was raised and discussed?

MR SHABANGU: We were informed that there would be a meeting and that we are required to attend the meeting.

MR HONNORAT: Where was the meeting supposed to be held? At which venue?

MR SHABANGU: At Lutheran Church.

MR HONNORAT: Where is that, in which area is that?

MR SHABANGU: It is at Diepkloof Zone 5.

MR HONNORAT: What was the time of the meeting more or less?

MR SHABANGU: It was supposed to be 6 o'clock.

MR HONNORAT: In the morning or in the afternoon?

MR SHABANGU: In the afternoon.

MR HONNORAT: So what happened at that meeting?

MR SHABANGU: Before I went to this meeting, I first went to a lady who was an ANC Youth League member and thereafter I went to the Lutheran Church.

MR HONNORAT: Okay, what happened at the Lutheran Church?

MR SHABANGU: I found a lot of women in the church.

MR HONNORAT: Was there any discussion taking place?

MR SHABANGU: It was even before we entered the Church itself, we were standing outside. Yes, it's correct that they were discussing about someone else.

MR HONNORAT: What was the discussion about?

MR SHABANGU: The first lady to speak was Ms Tshabalala.

MR HONNORAT: Was she one of the two people who attended the 19th of April meeting, Sipho's sister, Sipho's wife, was she one of these two?

MR SHABANGU: No, she didn't attend that meeting.

MR HONNORAT: So who is she any relation to Sipho?

MR SHABANGU: This is Sipho's mother.

MR HONNORAT: So she was the first to speak and what did she say?

MR SHABANGU: She told us that police arrived at her home, they were looking for firearms.

MR HONNORAT: And then?

MR SHABANGU: And she explained that they were sent to her home by Mr Manoto.

MR HONNORAT: Did she say something else?

MR SHABANGU: No.

MR HONNORAT: You say she was the first to speak, who else spoke?

MR SHABANGU: It was Mr Makoba.

MR HONNORAT: Who is he in relation to political organisation, Civic Organisation, any organisation ...(indistinct). Can you establish the relation for the purposes of the house?

MR SHABANGU: He belonged to the Civic Organisation.

MR HONNORAT: Can you say more or less what his age was, Sir?

MR SHABANGU: He's an elderly person. He said that he saw the police cars at the place and he was busy preparing the, he was working at the garden and while he was doing that, preparing his garden, he did see the cars which were in Manoto's place, which left to go to Sipho Tshabalala's place and he further asked Ms Tshabalala what happened and Ms Tshabalala explained to him that the police were looking for firearms and they were sent there by Mr Manoto.

MR HONNORAT: Did he say anything further, Mr Makoba?

MR SHABANGU: No, he sat down thereafter.

MR HONNORAT: Did anybody else speak at that meeting?

MR SHABANGU: Yes.

MR HONNORAT: Can you say who?

MR SHABANGU: It was Themba Zondo.

MR HONNORAT: Did you know him before?

MR SHABANGU: Yes.

MR HONNORAT: Was he a supporter of the ANC?

MR SHABANGU: I wouldn't be able to know whether he was, it was just a person whom I knew.

MR HONNORAT: What did Mr Zondo say at the meeting?

MR SHABANGU: He explained that the relevant time he was coming back from work and his mother told him to go to a neighbour to ask as to what were the police doing at Sipho Tshabalala's place. He went to Sipho Tshabalala's place and he found Sipho's mother and he inquired, saying that his mother asked him to go there to find out what were the police doing at the house.

CHAIRPERSON: Tell us the whole story and I assume he's going to come and testify in any case so I don't know what the value of this is, but tell us what he said.

MR SHABANGU: And Ms Tshabalala explained that the police were looking for firearms and it was explained that these police were sent to the home by Mr Manoto. Themba went back home to report to his mother that Manoto told the police that Sipho had firearms in his possession. Themba sat down.

MR HONNORAT: Did anybody speak at the meeting, anybody else?

MR SHABANGU: Thereafter a certain man spoke. He suggested that we should try and elect elderly people who would go and speak to Mr Manoto. After that Mrs Gumede stood up. Mrs Gumede told them that those people inside, they didn't know anything about the struggle.

MR HONNORAT: And then?

MR SHABANGU: And she suggested that this person should be pursued or should be looked after and killed and that was the stage where we had to leave the place, to go to Mr Manoto's place. When we arrived at Mr Manoto we found him on the roof of the house and we started fighting with him. He was throwing stones at us and we were throwing stones back to him and we were great in number. Some entered in neighbours' houses, others entered Mr Zwane's house. Myself, I followed the group which entered to Mr Zwane's house.

MR HONNORAT: What did you do in Mr Manoto's house?

MR SHABANGU: After entering the yard, Mr Manoto saw us and he ran into the house and I was the first one in front to kick the door. In his bedroom, that's where we found him, inside, it was myself, Hector and Thobele. I'm the one who caught him.

MR HONNORAT: What did you do after catching him?

MR SHABANGU: We dragged him out and we took him out to the comrades who were outside and there were a lot of comrades outside. They started kicking at him and assaulting him. I plucked out an iron and I hit him three times on the head.

MR HONNORAT: What happened after that?

MR SHABANGU: Some comrades were assaulting him with stones and we pulled him to the vicinity of the gate and at the vicinity of the gate, I did hit him again.

MR HONNORAT: How did you hit him?

MR SHABANGU: I was hitting him on the head with the iron.

MR HONNORAT: And then what happened?

MR SHABANGU: And the other comrades continued to hit him with stones and a pickaxe and they started suggested, calling saying "Pete, there is paraffin, here is petrol" and the person who dosed him with those items was comrade Mandla and I set him alight and thereafter we left.

MR HONNORAT: Now you have explained to the house what you did during that particular day at the house of Mr Manoto. Can you explain I mean to the house why you did that? Why you took part in the assault together with those comrades?

MR SHABANGU: I will say that Mr Manoto was an informer and at that time, I mean, informers were not wanted in the townships.

MR HONNORAT: Was there any doubt in your mind that he was an informer, in fact?

MR SHABANGU: I wasn't, I didn't know, or I was aware that he was a "impimpi" and I didn't even know him myself personally.

MR HONNORAT: But when you went there to his house, were you convinced that he was a police informer?

MR SHABANGU: We had information from other comrades that the police would visit his place at night.

CHAIRPERSON: Yes, but the question is, when you went to kill him, did you have any doubts in your mind that he was an informer or did you accept that he was an informer?

MR SHABANGU: I was fully convinced that he was an informer.

MR HONNORAT: Now Mr Shabangu, if you were to go back to those days of the struggle, and you have to deal with a political opponent in the form of a police informer or a spy, what would be your political action as part I mean of a liberation movement in those days?

MR SHABANGU: To kill them because they were not wanted in the township.

MR HONNORAT: Was there any other reason why you attacked Mr Manoto, you did what you did on that night, other than the reason connected to the struggle you have explained to the house? Was there any other reason? Personal animosity, envy, financial gain, anything?

MR SHABANGU: There wasn't any other reason. We attacked him because he was an informer.

MR HONNORAT: I've got no further questions.

CHAIRPERSON: Thank you Mr Honnorat. Mr Chelopo, have you got any questions? No questions.

CHAIRPERSON: Ms Thabethe, have you got any questions?

CROSS-EXAMINATION BY MS THABETHE: Thank you Mr Chair, I do have questions.

Is it correct Mr Shabangu that you used an iron bar and poured paraffin on the deceased?

MR SHABANGU: Yes.

MS THABETHE: Why did you kill Mr Manoto?

MR SHABANGU: He was an informer.

MS THABETHE: And how do you know this?

MR SHABANGU: We were told by his neighbours.

MS THABETHE: So what you are saying is you acted on what you were told by the neighbours, is that correct?

MR SHABANGU: Yes, that's correct and also from other comrades we gathered that he was an informer.

MS THABETHE: Before Mr Manoto was killed, did you know him personally?

MR SHABANGU: No.

MS THABETHE: Thank you, Mr Chair, I have no further questions.

CHAIRPERSON: Thank you. Any re-examination, Mr Honnorat?

MR HONNORAT: No re-examination.

CHAIRPERSON: Thank you. Mr Shabangu, you're excused, thank you very much.

MR CHELOPO: Maybe if I could ask one question, on second thoughts. I thought maybe I don't have a question, then on going through my minutes I see that I've got a question.

CHAIRPERSON: Yes. You're not excused yet, just hold on a minute, Mr Chelopo's got a question.

CROSS-EXAMINATION BY MR CHELOPO: Mr Shabangu, you mentioned one Ms Gumede who was at the meeting, who said to you, who seemed to me she was the last speaker in that meeting. Can you recall her exact words? What did she say, the exact words, that led you to go out of the meeting? Can you recall the exact words please?

MR SHABANGU: She said that the women in that church didn't know anything about the struggle.

MR CHELOPO: Yes.

MR SHABANGU: She said we should go to this man and kill him and that's the time when we had to leave the church and go to Manoto's place.

MR CHELOPO: Were there only women in that church, who were supposed to be sent to Manoto, or were there men also because I hear you talk of Civic is Civic not composed of men and women?

MR SHABANGU: There were women and men in the church.

MR CHELOPO: Then why now women only, because if ever you posed the question, you asked people to go and represent you, I don't think the question referred to the women. Why did she specifically, I answered, directed a question to women.

MR SHABANGU: I won't be able to know.

MR CHELOPO: Were sent there at the time, women only or was there - okay to put it the other way, was the request forwarded directly to women only, or to the Civic?

MR SHABANGU: She was telling all the people in the Church and the comrades knew what they were supposed to do.

MR CHELOPO: They just acted even though Mrs Gumede couldn't have said those words, they would have just continued with their action, is that correct?

MR SHABANGU: I don't think so.

MR CHELOPO: Did Ms Gumede give the instructions?

MR SHABANGU: Who?

MR CHELOPO: Mrs Gumede.

MR SHABANGU: If Mrs Gumede didn't say that this person should be pursued and killed. Maybe it wouldn't have happened.

MR CHELOPO: You said the comrades would have just gone on with their mission, because they knew what they wanted to do. You are saying even though Mrs Gumede couldn't have said those things, is that correct?

MR SHABANGU: No. I'm saying that a comrade did inform us about Mr Manoto but we didn't have proof of that and after the neighbours came to tell us the same, we thought then this could be true because they couldn't just, I mean, start out any rumour which is false about him.

MR CHELOPO: In one of the statements that I read even though it's not yours, Mr Shabangu, I'm sorry, it says that the meeting was chaotic. Can you explain why that really, can you confirm why that really the meeting was chaotic?

MR KOOPEDI: Could I object, Mr Chairperson, related to that question, because that question relates to another applicant and that statement was not mentioned by the present applicant?

CHAIRPERSON: Yes, well he didn't say that, Mr Chelopo.

MR CHELOPO: Okay, I withdraw the question.

Mr Shabangu, in that meeting, in the Church meeting, can you tell us the situation in that meeting? What was the situation according to your own direction?

MR SHABANGU: I believe that he stayed in Soweto and, but you should have known that in Soweto that if you're an informer, you were not wanted.

MR CHELOPO: Mr Shabangu, I'm asking your own perspective on the situation at the meeting, whether the meeting was a free flowing meeting or not? Your own perspective on the meeting, I'm not asking whether I'm from Soweto or not from Soweto, can you maybe explain on what I'm asking?

CHAIRPERSON: Mr Shabangu, somebody else apparently said that the meeting was chaotic, now what is your comment on that, do you agree or disagree with that observation, with that opinion, because it's somebody else's opinion in any case.

MR SHABANGU: I'd say people were angry.

CHAIRPERSON: Thank you.

ADV BOSMAN: Just one question, why did you act in such a particularly savage way? You testified that you hit him with an iron bar and you hit him again with an iron bar and then you got petrol and you said you put the petrol over him and you lit the petrol, why did you act in such a savage way?

MR ZULU: Point of correction, Mr Chairperson, the applicant said initially that one of the comrades brought petrol and doused the victim or the deceased with petrol and the applicant set him alight.

ADV BOSMAN: Perhaps I could just refer to paragraph 11 on page 40, where it says"

I was actually referring to that, perhaps I should draw your attention to that first. If you could have a look Mr Shabangu on page 40.

MR ZULU: That's correct. In fact, on taking instruction, it was actually clarified that it is not the present applicant who actually poured petrol or doused the deceased with petrol, but it's one of the applicant who is still to adduce evidence to this Committee.

ADV BOSMAN: Chairperson, with respect, I think that the applicant should then clarify that to the Committee because the Committee has before it the statement that:

MR ZULU: As the Committee pleases.

ADV BOSMAN: On page 40, paragraph 11. Mr Shabangu do you see that on page 40, paragraph 11?

MR HONNORAT: Perhaps Mr Chairman, the question is to be asked whether this present applicant can read English properly, whether the statement in English reflects that what he saw as having been written down.

CHAIRPERSON: Yes.

MR HONNORAT; Because I think that has to be established first and then.

CHAIRPERSON: Yes, just a minute, Mr Shabangu, did you go into the house of Mr Manoto and find a bottle of paraffin in there?

MR SHABANGU: Yes, I went to Mr Manoto's house.

CHAIRPERSON: Yes?

MR SHABANGU: The comrades came with a bottle of paraffin not myself.

CHAIRPERSON: So you didn't find the petrol, paraffin, sorry? Alright.

ADV BOSMAN: Sorry Chairperson, I am sorry, I thought you'd finished.

CHAIRPERSON: No, I was just going to repeat your question to him. The question is why did you act in that particular fashion towards Mr Manoto? Why did you hit him with the iron bar and all that?

MR SHABANGU: As I've already explained that Mr Manoto was an informer. Chairperson, as you might know that, I mean, we were living in difficult conditions and an informer was not wanted in the township.

CHAIRPERSON: Yes.

ADV BOSMAN: I just want to rephrase my question. Was it necessary to act in such a particularly savage fashion, to kill Mr Manoto?

MR SHABANGU: I would say yes.

ADV BOSMAN: Why?

MR SHABANGU: Because he was an informer.

ADV BOSMAN: I won't pursue this any further, thank you Chairperson.

CROSS-EXAMINATION BY MR ZULU: Chairperson, just one question to the applicant. Mr Shabangu, now that you've related whatever you did at that time, do you regret your actions, do you feel sorry about what you did at that time?

MR SHABANGU: I am deeply sorry about it.

MR ZULU: Why at this stage do you feel sorry about it?

MR SHABANGU: What we did, or things that we did were bad and at this time I would like to ask the family of the deceased to forgive me because it was a bad thing that we did.

MR ZULU: Thank you, Chairperson, no further questions.

CHAIRPERSON: Yes, you're now excused Mr Shabangu.

MR HONNORAT: Mr Chairman, can I have a question resulting from ...(intervention)

CHAIRPERSON: No, no, please, I mean either you or Mr Zulu handle the re-examination of the witness, we can't ping pong. I mean really, we're not ...(intervention)

MR HONNORAT: This is just a question resulting from Adv Bosman's previous question.

CHAIRPERSON: Well you see you'll have to make up your minds which one of the two of you are appearing for a particular witness, because I'm not going to allow you both to be jumping around and asking questions, it will make just a mockery out of this process. I won't accept that, so you've got to decide who is leading which of the applicants, or which witness and that person will deal with that evidence. So please.

MR HONNORAT: Yes, Mr Chairman, that's was interrupted when I was going to ask a question that was directly related to Adv Bosman's former questions.

CHAIRPERSON: Yes, now please deal with that and let's get done with this witness's evidence.

RE-EXAMINATION BY MR HONNORAT: Mr Shabangu, in the political circumstances of the time, would you feel that politically it was the right option to deal with the police informer by killing him in a public open way or by doing it in a secret way, in a hidden way that nobody would know about it?

MR SHABANGU: We would have to kill the person in public.

MR HONNORAT: I've got no further questions.

CHAIRPERSON: Yes, now you're excused Mr Shabangu. Thank you very much.

MS THABETHE: Mr Chair, may I approach please?

CHAIRPERSON: Sorry?

MS THABETHE: Can I approach?

CHAIRPERSON: Yes, I was about to, I was told that the people in custody have to depart at 4.30, so I was about to adjourn. Do you have to approach us before we adjourn, or can you do it after we've adjourned?

MS THABETHE: Before you adjourn Mr Chair.

CHAIRPERSON: Alright, let's hear.

CHAIRPERSON: Yes, we've come to the end of the day, and of today's proceedings. We will now adjourn and we will reconvene tomorrow morning at 9 o'clock.