CHAIRPERSON: Good afternoon. We want to start the proceedings. For the record, it's Wednesday the 10th of May 2000, it is the continuation of the sitting of the Amnesty Committee at Middelburg. The Panel is constituted as would be apparent from the record. We just wish to indicate that the proceedings are starting late today, due to a number of logistical and other difficulties that have largely been occasioned by the fact that all of the applicants in all of the applications that are on our roll for today, are in custody in different centres and they had to be transported from these centres to Middelburg, where we are sitting, which is the most central point for the matters that are on the roll for this particular session in Middelburg.

The situation has been exacerbated by the fact that at some of the centres, Correctional Services has not had its normal staff component, resulting in pressure on the diminished resources that were available, and that affected us and delayed the proceedings here because some of the applicants had to be transported over considerable distances to the venue. We apologise for the delay in being able to start. We do intend to, if it's at all possible, finalise the matters that are on the roll for today and if needs be, for that purpose we will consider continuing the session till beyond the normal sitting hours, in order to be able to do so.

The matters that are to be heard now are the applications of D L Phasha, amnesty reference AM1319/96, L L Phasha, reference AM1318/96 and M M Phasha, reference AM1221/96.

I'm going to allow the legal representatives to put themselves on record. I'll start with Mr Richard.

MR RICHARD: Thank you, Chair. Tony Richard, Johannesburg. I am appearing for the Phashas, the applicants.

CHAIRPERSON: Thank you, Mr Richard.

Thank you, Honourable Chairperson. I'm Frank Mokoena from Nelspruit, I'm representing the victims.

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

MS MTANGA: I'm Lula Mtanga, Chairperson. Thank you.

CHAIRPERSON: Thank you, Ms Mtanga. Yes, Mr Richard?

MR RICHARD: Thank you, Chairperson. I start by calling Michael Morudi Phasha, who is happy to be sworn.

CHAIRPERSON: Thank you, Mr Richard. Mr Phasha, are your full names Michael Morudi Phasha?

MR M M PHASHA: That is correct.

CHAIRPERSON: Please stand to take the oath.

MICHAEL MORUDI PHASHA: (sworn states)

CHAIRPERSON: Thank you, you may be seated. Mr Richard?

EXAMINATION BY MR RICHARD: Thank you, Chairperson.

Mr Phasha, where were you born?

MR M M PHASHA: I was born at Driekop, in the Northern Province.

MR RICHARD: And what is the nearest major centre to Driekop?

MR M M PHASHA: The smallest town is Burgersfort and the bigger on is Pietersburg.

MR RICHARD: Now is that where you were educated, reared and grew up, until your arrest in 1993?

MR M M PHASHA: That is correct.

MR RICHARD: Now what education did you receive?

MR M M PHASHA: I reached standard 10, but I did not finish standard 10.

MR RICHARD: Now am I correct in making the statement that the area is a rural area?

MR M M PHASHA: That is correct.

MR RICHARD: Am I also correct in saying that in this area the traditional structures of chiefs, their councillors, senior chiefs, junior chiefs, still exists and has existed throughout your life?

MR M M PHASHA: May you please repeat the question.

MR RICHARD: My question is, is it not correct that throughout your life, in the area where you have lived and grown up and led your life, the traditional structures of chiefs in villages, sub-chiefs and so on, still exist?

MR M M PHASHA: Yes, they still exist.

MR RICHARD: Now before we go into the essence of the matter, I've decided to use certain particular words and I'm going to ask the witness a number of questions.

What is a moloi? M-o-l-o-i.

MR M M PHASHA: It's somebody who kills people, using supernatural powers.

MR RICHARD: And what else do moloi's do?

MR M M PHASHA: Amongst other things that he does is to abduct people. Those are the people that we know that they have died, but he knows that they did not die. That is his secret and he will use those people the way he wants to use them.

MR RICHARD: And for what purposes would he use those people?

MR M M PHASHA: According to my little knowledge, amongst the purposes that he used them for include his personal things, or he together with his people who are doing the same thing that he's doing, that is other witches.

MR RICHARD: I go to the next term, and forgive my pronunciation. The Sotho is ngaka, what is a ngaka?

MR M M PHASHA: He's the person who helps other people, people who believe in black traditions, by helping them and protecting them against the witches. So his main duty is to protect them and also to expose some of the deeds of the witches.

MR RICHARD: Do ngakas also treat you when you're ill?

MR M M PHASHA: That is correct.

MR RICHARD: So a ngaka is more than just a traditional healer, he's also a person who points out molois.

MR M M PHASHA: That is correct.

MR RICHARD: Now how would a ngaka go about pointing out a moloi?

MR M M PHASHA: He uses different methods, it will depend on that particular traditional doctor, that is his training. There are those who will be able to point the witch by using a mirror, and others, many others may use divine bones and they will read from the divine bones what is happening.

MR RICHARD: Now I give a hypothetical proposition, if I were a resident of a village such as the one that you come from, and had reason to suspect the work of a moloi, what would be the procedure for me to do? How would I go about dealing with the problem? Could I go to the chief, could I go to the ngaka, how would I process my complaint or question?

MR M M PHASHA: If that family is under the authority of a particular chief, they will go to that chief and he will give them advice as to what they should do, but other families they will go directly to the traditional doctor. That would depend on the knowledge that they have about traditional doctors.

MR RICHARD: Now if the traditional doctors, or as we're calling them, ngaka, believe that witchcraft, a moloi, is involved, what role would the chief perform?

INTERPRETER: May you please repeat the question, Mr Tony Richards.

MR RICHARD: Thank you. If the traditional doctor, ngaka, comes to the conclusion that there's the work of a moloi on hand, what would happen? Who would be spoken to next, what procedures would be established, or followed?

MR M M PHASHA: The first thing that I know that the traditional doctor will do, will be to attend to the problem that you tell him about. So it will also depend on you what type of help need from him.

MR RICHARD: What function would the chief fulfil?

MR M M PHASHA: What the chief does is to give directives and advices which will enable you to get help. He may send you to a traditional doctor, the one that he believes that would be able to help, but his main task is not to heal like a traditional doctor, it's just to advise people and give them directives, as the leader in that particular village.

MR RICHARD: Thank you. Now would you please tell the Committee and the Chairperson what are your beliefs regarding the powers of ngakas and molois.

MR M M PHASHA: My beliefs about the traditional doctor is that he is able to help a person who has problems, it can be family problems or sicknesses. By talking about family problems I refer to, for example, from our beliefs as black people, we know about witches, so the traditional doctor will help him and give him protection. My belief concerning the witches is that this is the person who is able to do things that other people may not be able to see them. He will be the only person who sees those things, and such deeds can only be seen by a traditional doctor.

MR RICHARD: And you believe what the traditional doctors tell you and you believe what they say?

MR M M PHASHA: Because I grew up under that belief, yes, I do believe what the traditional doctor says because he's able to see what I cannot see.

MR RICHARD: Thank you. Now sometime early in February, a person called Moses went missing, would you please tell the Committee what the relationship between Moses and you was.

MR M M PHASHA: Moses was my brother, but we had different mothers and our fathers were also brothers. That is why I refer to him as my brother.

MR RICHARD: In other words, if I use the European classification and terminology, he would have been termed a cousin? Your father's brother's child.

MR M M PHASHA: That is correct.

MR RICHARD: Now Moses grew up in the same area as you, did he not?

MR M M PHASHA: That is correct, we grew up together in the same village.

MR RICHARD: And did he have any political sympathies, did he support any political party?

MR M M PHASHA: That is correct.

MR RICHARD: Which party did he support?

MR M M PHASHA: He was the ANC supporter like myself.

MR RICHARD: Now what did Moses do to actively support the ANC?

MR M M PHASHA: His main involvement I would say, is that when the ANC Youth League was launched at our village, he was one of us. We were together in fighting for the launching of the Youth League, but we did not have the membership cards, because that was the first time that we have a youth organisation in our area.

MR RICHARD: Now for how long before February '93, did the Youth League organisation of the ANC, exist in your village, Driekop?

MR M M PHASHA: When the ANC Youth League was launched, the ANC already existed, but for a period of not more than five years in our village.

MR RICHARD: So am I correct in drawing the inference that the late Moses was an ANC sympathiser and supporter for some number of years? And well-known to be that.

MR M M PHASHA: That is correct.

MR RICHARD: Thank you. Now if I understand this correctly and I have my chronology right, is it not correct that on the 15th of February, Moses' body was found and he was dead?

MR M M PHASHA: What I remember is that his corpse was found, but I do not recall the day in which his body was found.

MR RICHARD: Where was his body found?

MR M M PHASHA: His body was found at the mountain next to our village.

MR RICHARD: And in what condition was his body?

MR M M PHASHA: The body was already decomposing and it looked as if some of his body parts were missing.

MR RICHARD: Do you have any knowledge of what body parts were missing?

MR M M PHASHA: I remember his tongue, his teeth and the skin around his head. The skull was actually exposed, and on his body he had a knife cut on his chest, but I was not able to see what was removed from his inside, but he had that wound. It looked like a knife wound on his chest.

MR RICHARD: Was it a deep wound?

MR M M PHASHA: That is correct.

MR RICHARD: Now when you saw the body, would you agree that it bore the trademarks of what is called in the popular press, a muti killing?

MR M M PHASHA: Yes, that is what I believe.

MR RICHARD: Now how long before had the late Moses gone missing, was it a day, a week, two weeks, do you remember?

MR M M PHASHA: He went missing on the 16th of January 1983 - 1993, rather.

MR RICHARD: Was he well at the time he went missing?

MR M M PHASHA: Yes, he was still well.

MR RICHARD: Did he suffer from any ailments, any mental imbalance, pains in his side?

MR M M PHASHA: Yes, he was a sickly person, but his sickness at that period when it was suspected that it involved the - he was actually bewitched.

MR RICHARD: How do you know that he thought he was bewitched?

MR M M PHASHA: In his family - when he started becoming sick he was living with me, I was taking care of him, and he used to tell me that the people who made him to be ill, he gave me their names actually. That is how I came to know that he was bewitched.

MR RICHARD: And who did he name as the molois or witch-doctors that were bewitching him?

MR M M PHASHA: The first one was Mamoghe Phasha. The second one is Reisiki Phasha, and Reisibi Mashabela. The fourth one is Maletswai Phasha. The fifth one was Mamelele Phasha. The sixth one was Abraham Madibeng Phasha.

MR RICHARD: I might have misunderstood you, but wasn't there another name, Jan Phasha, or was it one of the people that you've already listed? Jan Mashyani Phasha.

MR M M PHASHA: He did not mention Jan Phasha's name as one of the people who bewitched him, but he was actually exposed by the traditional doctors who were called by the chief.

MR RICHARD: Now amongst those names mentioned, you mentioned the name Abraham Phasha, Abraham Madibeng Phasha, is that not correct?

MR M M PHASHA: That is correct.

MR RICHARD: And there was another name that I would like to put to you, Johannes Mamletswa Phasha.

MR M M PHASHA: That is correct.

MR RICHARD: Now was Johannes Phasha also pointed out as a witch or moloi?

MR M M PHASHA: Maletswai.

MR RICHARD: I beg your pardon, Maletswai. Was he also pointed out to be one of the molois?

MR M M PHASHA: That is correct.

ADV SANDI: Sorry, just explain that. Pointed out by who?

MR RICHARD: Who pointed Johannes Maletswai Phasha as a moloi?

MR M M PHASHA: He was named by Moses before we went to the traditional doctors. He was firstly mentioned by Moses, as one of the people who were troubling him.

MR RICHARD: And which of the traditional doctors mentioned his name?

MR M M PHASHA: The first doctor is the one who used the mirror, but I forgot his name, and the second one's name is Makwebelani Moloto and Ditoi Ghapola.

MR RICHARD: Now were you present when Abraham Madibeng Phasha died?

MR M M PHASHA: Yes, I was present.

MR RICHARD: How did he die?

MR M M PHASHA: He was stoned to death.

MR RICHARD: How many people stoned him to death?

MR M M PHASHA: They were more than 500 people.

MR RICHARD: Now of those 500 people who were present when he was stoned to death, who was the first person to throw a stone?

MR M M PHASHA: If I recall well, the first person to stone him was myself.

MR RICHARD: Now at that time, and as you gave evidence, you were active within the ANC support group as a supporter, there was a cry amongst the youth as to what should be done with impimpis and molois, what was that cry?

MR M M PHASHA: The youth were concerned that the witches were killing people who would be future leaders of the ANC, and such people should be killed if it is found that he had done that.

MR RICHARD: Who did the youth believe the witches supported on a political level?

MR M M PHASHA: As youth we believed that the witches supported the people who were against the aspirations of the ANC, that is to fight for freedom.

ADV SANDI: Sorry, who were those people?

MR M M PHASHA: I'm referring to people who were against the aspirations of the ANC, like political parties who supported the then government to suppress black people.

MR RICHARD: Forgive me, Chairperson, if I listen to the interpreters dialogue, I thought some names were mentioned. I'd like to hear the names. What were those names again?

MR M M PHASHA: No, I did not mention names of people.

MR RICHARD: Were there local persons in the Northern Province, in your area, who supported the apartheid government?

MR M M PHASHA: According to my knowledge one such person was the King, who was our leader, because he supported the then government.

MR RICHARD: Now did that person have any particular relationship with either ngakas or molois?

MR M M PHASHA: I believe that they had dealings with the witches, then the doctors.

MR RICHARD: And what did that person who was a leader of your area, who supported the apartheid government, want of the molois?

MR M M PHASHA: His name was Mpho Nylete William Mashabela.

MR RICHARD: And what did Mr Mashabela want the molois to do for him, according to your belief or knowledge?

MR M M PHASHA: Amongst other things that I think he wanted the witches to do for him, was to fight against the youth who belonged to the ANC Youth League, so that the ANC Youth League should not develop.

MR RICHARD: How would that fight have been carried out?

MR M M PHASHA: I believe that amongst other things that would be done would be to kill the youth, like they did to Moses Phasha.

MR RICHARD: Right, let's go back to Moses Phasha's disappearance around the 16th of January. How long did it take for you to notice that your brother had gone missing? Did you notice it immediately or was he missing for a few days before you noticed?

MR M M PHASHA: Like I've already said that he was a sickly person, the first day he disappeared we became aware that he was missing because we could not find him in any of the family households, and that is how we realised that he has disappeared.

MR RICHARD: What efforts were made to search for him?

MR M M PHASHA: Before the community became involved, the family and relatives started searching for him, even in other villages where we thought that he might be there, but after realising that he was nowhere in those areas we went to seek for help from the traditional doctors. We wanted them to show us whether he has disappeared or not and if he has disappeared, what could have been the cause for his disappearance.

MR RICHARD: And what did the traditional doctors tell you?

MR M M PHASHA: They told us that Moses has been abducted.

MR RICHARD: And what had happened to him as a result of his abduction?

MR M M PHASHA: The person who was actually involved in that was Jan Mashyani. He was the person who was in contact with the traditional doctors and then he would take that to Moses' family, and then he said the doctors said he has disappeared, he has been abducted by the traditional doctors.

MR RICHARD: When you say he's been ...(intervention)

INTERPRETER: By the witches rather. I'm sorry.

MR RICHARD: Now who said Jan Pasha was involved? I didn't quite follow. The traditional ngaka the nyanga?

MR M M PHASHA: Jan Mashyani Phasha was the person who was involved in the family, to help the family to find out from the traditional doctors what happened to Moses and what help is available from the traditional doctors to find him, so he would take the report from the doctors to the family. In other words, he was the person who was the link between the family and the traditional doctors.

MR RICHARD: Now does that mean that Jan Phasha was pointed out as a moloi?

MR M M PHASHA: No, he was not pointed out as a witch, but he was the person who had the knowledge about Moses and what happened to Moses and what were the reasons for his disappearance.

MR RICHARD: Now was he the only one pointed out?

MR M M PHASHA: I don't understand your question, do you mean him being pointed out as a witch?

MR RICHARD: Well he was pointed out as being involved with the witches in Moses' disappearance. My question then is, how many others were pointed out at this stage, as being involved?

CHAIRPERSON: No, no, Mr Richard, the applicant is saying that Jan Phasha was not pointed out as a witch, he was a go-between between the family and the traditional doctors, in order to try and find out what had happened to the deceased. So he wasn't pointed out as a witch, hew as simply helping the family.

MR RICHARD: I stand corrected, thank you.

Now what did you do with that information?

MR M M PHASHA: As family members or relatives, we were trying all the means to find, or to look for him where we thought he could be. We even informed the chiefs in the neighbouring villages, asking them to tell us whenever they see him.

MR RICHARD: Now did you consult ngakas again, so as to find out what had happened to Moses?

MR M M PHASHA: The reason why we went back to the traditional doctors was that Jan Phasha went back to them to ask for help because they are they are the people who knew what happened to him. He asked them to help the family by returning Moses back to the family.

MR RICHARD: And what did the traditional doctors say in response to Jan's request?

MR M M PHASHA: What Mashyani Phasha told us was that the traditional doctors have instructed him to go where Moses was hidden and then he'll be able to find him there, and that is where he was found.

MR RICHARD: Now before he was found - let me put the question this way, at what stage did the youth of the area become involved?

MR M M PHASHA: After that Jan returned from the traditional doctors, he went to the chief. He requested the chief to give him some members of the community to go with him to that place where the traditional doctors said he will find Moses at, and that is how the youth were also involved in this issue.

MR RICHARD: How did the chief react to Jan Phasha's request?

MR M M PHASHA: The chief agreed and he wrote letters and he sent those letters to various schools in that village, instructing the schools that they should stop with their activities so that everybody can help in the search for Moses.

MR RICHARD: Now if you turn to paragraph 10(b) at page 15 of your application, there you say:

What do you mean "to the mountain caves"? What do you mean by that? Where are the mountain caves?

MR M M PHASHA: This mountain I'm referring to is in our village.

MR RICHARD: And - carry on, sorry.

MR M M PHASHA: The problems that ensued at the mountain was that after that the youth have searched the mountain and they did not find Moses, they became angry towards the chief because they did not find Moses, so they wanted to know from the traditional doctor what has actually happened.

MR RICHARD: How many people went to the mountain cave?

MR M M PHASHA: More than 500 people, because there were so many people there.

MR RICHARD: Now when the search for Moses was unsuccessful, what happened next?

MR M M PHASHA: Because Mashyani Phasha was confronted by the youth he gave the youth the names of the people who were involved in Moses' disappearance. That is when the youth decided that it will be better if they can get those people who have been mentioned as witches, so that those people could help in the search for Moses.

MR RICHARD: Now did they act out what had to be done on that decision?

MR M M PHASHA: Yes, they did.

MR RICHARD: What did they do?

MR M M PHASHA: They went to the chief's kraal.

MR RICHARD: And what did they do there?

MR M M PHASHA: When they arrived there they took a decision that they have to go and fetch those people who were alleged to be the witches, so that they could come and help the community. And they indeed went out to fetch those people.

MR RICHARD: And when was it that Abraham Madibeng was named as the person responsible for Moses' disappearance?

MR M M PHASHA: Abraham was named together with people like Mano Gomaletswai Phasha and others and Abraham Madibeng Phasha.

MR RICHARD: Who names Abraham Phasha, who specifically named him as a witch?

MR M M PHASHA: He was named by Jan Mashyani Phasha.

MR RICHARD: Thank you. Now on the day that Abraham Madibeng Phasha died, were any efforts made to apprehend and seize any other people names as witches?

MR M M PHASHA: That is correct, but they were not found.

MR RICHARD: So on this day, where was your brother, your co-applicant, Daniel Lisufi Phasha?

MR M M PHASHA: Daniel Lisufi Phasha, when Madimeng Phasha was killed, he had gone out with another group that went to search for the other witches, but he left after he asked the community to accuse Madibeng, because the community was angry and he was afraid that in trying to protect him he could also be killed and people may also suspect him as a witch. That is why he left with this other group.

MR RICHARD: From your answer I understand that Daniel wasn't present while the stoning was happening, is that correct?

MR M M PHASHA: That is correct.

MR RICHARD: Now when did he arrive in the village, was it that day or the day before?

MR M M PHASHA: He arrived on the same day, the same day Madibeng was killed.

MR RICHARD: At what time?

MR M M PHASHA: I did not see him when he arrived, but that was sometime after 6 o'clock in the afternoon and that is when I realised that he was present, then I was surprised to see him because I knew him to have been at Secunda.

MR RICHARD: Now you made a statement that he left because he had tried to dissuade the crowd from doing anything to Madibeng Phasha, did I understand you correctly?

MR M M PHASHA: May you please repeat that question?

MR RICHARD: I'll put it slightly differently. Did Daniel agree that Abraham Madibeng Phasha should have something done to him?

MR M M PHASHA: I don't think that he agreed, but he only tried to help protect Madibeng, but now because he could not do that, he left, because the community was angry.

MR RICHARD: Did he know that - at the time he left, would he have known that Madibeng Phasha was in danger of being killed?

MR M M PHASHA: I believe that he knew that there was a possibility that Madibeng could be killed, due to the fact that the community was very angry.

MR RICHARD: Where did he go?

MR M M PHASHA: He went out with the other group that was going to search for other witches.

MR RICHARD: Now had any stones been thrown at the time he left?

MR M M PHASHA: They had not yet started throwing stones when he left.

MR RICHARD: If he had returned with other people that had been named as witches, what would have happened to those other people?

MR M M PHASHA: The way I understood from Daniel and the way I heard what Jan Mashyani Phasha said, was that those witches should come and help find Moses Phasha, not that those witches should be killed.

MR RICHARD: Now at the time there was this crowd of 500 people around the deceased, were they singing and chanting?

MR M M PHASHA: That is correct.

MR RICHARD: What were they singing, what songs?

MR M M PHASHA: ...(no English interpretation)

MR RICHARD: What do those words mean in English?

MR M M PHASHA: One of the songs that they sang was about Maletswai Phasha, that he was undermining the community, because Maletswai was regarded as the senior witch.

CHAIRPERSON: Isn't it also true that they were singing a song which has words, which translate into English as "Kill the impimpi, kill the witch"?

MR M M PHASHA: That is one of the songs, but in most of the cases they will sing about Maletswai.

MR RICHARD: I believe, Chairperson, my learned colleagues can take it further in cross-examination, I've laid the basis.

CHAIRPERSON: Yes, does that conclude the evidence-in-chief?

MR RICHARD: Yes, Chairperson.

CHAIRPERSON: Thank you. Mr Mokoena.

CROSS-EXAMINATION BY MR MOKOENA: Thank you, Mr Chairperson. Mr Chairperson, although I don't have proper instructions, I would just have a few questions which I want to clarify with the applicant.

Mr Phasha, you testified that the youth then left to the chief's kraal, were you part of the youth at the time when they went to the chief's kraal?

MR M M PHASHA: Yes, I was.

MR MOKOENA: Did you regard the chief as your enemy?

MR M M PHASHA: Yes, I did.

MR MOKOENA: Why then did you go to your enemy's kraal?

MR M M PHASHA: As a member of the community I went where the community was going and I wanted to be part of the meeting and to get what we were looking for.

MR MOKOENA: Was this meeting attended by both old and young people?

MR M M PHASHA: Yes, both.

MR MOKOENA: Was the chief regarded as an enemy of only the youth, or both the old and the youth?

MR M M PHASHA: I wouldn't be certain about the community as a whole, but I am certain that he was regarded as the youth's enemy.

MR MOKOENA: How many people died before the disappearance of Moses?

MR M M PHASHA: Many people, such that I won't be able to tell the number.

MR MOKOENA: The young or old?

MR M M PHASHA: Young and old.

ADV SANDI: If I can just come in there.

Can you sort of explain under what circumstances such people would die?

MR M M PHASHA: I may not know the reasons why they were killed, but there were suspicions about their deaths. Like we know that a person can die due to an accident, or become ill and die, but their deaths were very suspicious.

ADV SANDI: Tell us more about that. Why were such people's deaths suspicious, suspicious to who?

MR M M PHASHA: At that time they were suspecting the whites. I just want to know whether you mean that whether those people suspected the whites or not, I was actually not answering.

ADV SANDI: Yes, but you say a lot of people died before Moses disappeared and I have asked you in what kind of situations would these people die, would it be car accidents, people falling sick and dying, or old people just dying because their life has come to an end? You know, that sort of thing.

MR M M PHASHA: One of them, if I remember well, died after he had fallen from the bed. The other one died because it was said he was struck by lightening.

ADV SANDI: Can I take it that you are not suggesting that there was anything political about the circumstances in which those people had died? You're not suggesting any politics in that.

MR M M PHASHA: I believe that because at that time people were not yet involved in politics, they became involved after the - around the death of Moses.

ADV SANDI: Thank you. I'm sorry about that, Mr Mokoena, I just wanted that clarity.

MR MOKOENA: Okay, thank you.

Mr Phasha, you said your leader was supporting the previous government and therefore used these witches to fight the youth, who were inspired with the motives or whatever, of the ANC. Now what I want to find out is, how did - or what exactly did these witches do to fight the youth?

MR M M PHASHA: Amongst other things that they would do would be to kill the youth, like the community believed that they were killed by the witches.

MR MOKOENA: Now from your evidence-in-chief it appears to me as if there was a healthy relation between the chief and the community as such, because the chief also allowed his people to go and assist Mr Jan Phasha in searching for the missing person and also even wrote letters to the school requesting their assistance. Why would the chief be so much involved in the searching of the missing person, if he was involved with this moloi?

MR M M PHASHA: I believe he did that because he was under pressure from the community and the youth.

MR MOKOENA: Was there - prior to the missing of Moses, was there any stage where the youth and the chief had a direct consultation?

MR M M PHASHA: ...(no English interpretation)

MR MOKOENA: I'm saying, prior to the missing of Moses, was there any stage whether the youth and the chief had a confrontation?

MR M M PHASHA: There were conflicts between the chief and the community and the community was helped by the youth in trying to resolve those conflicts between the chief and the community. But at that time there had never been any physical fight, they would be involved in verbal confrontations only, until the disappearance of Moses.

ADV SANDI: Can you just explain, what were these disputes about between the youth and the chief?

MR M M PHASHA: One of the conflicts was that there was an allegation that the chief was misappropriating the community funds and it was said that he could not develop the community like other communities were developing.

ADV SANDI: Sorry, just for my clarity, are you still talking about the same chief you said would be approached from time-to-time by people from the community who had problems and they wanted to know from the chief where to go for assistance from a ngaka, a witch-doctor?

MR M M PHASHA: That is correct, that's the same chief.

ADV SANDI: You say in spite of all those problems, people continued to approach the chief for assistance and guidance?

MR M M PHASHA: That was happening because the community respected the chief, they did not care how he was carrying himself out, but now because he was the chief, they really respected him.

ADV SANDI: Thank you.

MR MOKOENA: Mr Phasha, did the chief restrict your political movements, or maybe meetings or demonstrations?

MR M M PHASHA: There is a meeting that he disrupted and he told us that he doesn't want us to hold political meetings in his village, and that is when we realised that he was against the youth.

MR MOKOENA: Did he prevent maybe the, not necessarily the youth, but the ANC members, not being the youth only, the ANC, say the ...(indistinct) from meeting?

MR M M PHASHA: When he started preventing the youths meeting it was at the time when we were launching the ANC Youth League, that is why I say he was particularly against the ANC Youth League.

MR MOKOENA: Okay. And did he belong any other political organisation?

MR M M PHASHA: As to whether he was a member of a particular political organisation, we did not have that, but I believe that according to his actions, or following his actions, it was evident that he was a supporter of a certain political organisation, although I may not be able to specifically say which organisation.

MR MOKOENA: I thank you, Chairperson.

CHAIRPERSON: Thank you, Mr Mokoena. Ms Mtanga.

CROSS-EXAMINATION BY MS MTANGA: Thank you, Chairperson.

Mr Phasha, in your evidence you've testified that before your brother's disappearance numerous people had died.

MR M M PHASHA: That is correct.

MS MTANGA: You grew up in a community that believed in witchcraft, would I be correct to say that?

MR M M PHASHA: That is so.

MS MTANGA: Can you tell this Committee as to whether every time a person died in your community, did you believe that person was killed by the witches, or was bewitched by the witches?

MR M M PHASHA: We would only suspect that he has been bewitched if there is reasons for suspicions, and then we would consult the traditional doctors, we would not just suspect witchcraft in any death.

MS MTANGA: Can you give an example of a death where you wouldn't suspect witchcraft?

MR M M PHASHA: Like I mentioned that a certain girl fell from her bed and died.

MS MTANGA: So in that case you did not suspect witchcraft?

MR M M PHASHA: Because there were no actions taken, I can say we did not - there was no suspicion of witchcraft, but Moses' death raised suspicions because it was further confirmed by the traditional doctors and it was at that time that the people started to suspect that even the previous death of that girl was due to witchcraft.

MS MTANGA: When you suspected that a person had been killed by the witches, or when it was confirmed by your traditional doctors that such a person was killed by the witches, how would you know what the motive of the witches for killing this person was? How would you know the motive of the witches?

MR M M PHASHA: May you please repeat the question.

MS MTANGA: I'm asking you, in the instance where a person is killed by the witches and you have this confirmation from the traditional doctor, how would you as the community know why did the witches kill the person? How would you know the motives of the witches for killing that person?

MR M M PHASHA: The community will learn from the traditional doctors.

MS MTANGA: Can you give us a case where a witch-doctor told you what the reason was for the killing of a particular person, and what did he give those reasons to be?

MR M M PHASHA: I don't understand whether you say I should give you an example related to the death of Moses, or any other death that took place there.

MS MTANGA: I want an example other than the death of Moses, another example where you knew what the reasons for this killing of this person were.

MR M M PHASHA: I have been told that the traditional doctors would actually give reasons why the witches would kill a person. I learnt that after the death of Moses, because before the death of Moses, we didn't have suspicions.

MS MTANGA: What did the traditional doctors say were the reasons for the killing of Moses?

MR M M PHASHA: They said the witches wanted to use him or his body parts to make traditional medicines.

MS MTANGA: If your brother Moses was killed because the witches wanted to use him for their purposes, what did this have to do with politics? Why would his death then be political?

MR M M PHASHA: His killing is associated with politics because this doctor explained that Moses was the supporter and a member of the ANC Youth League at that village under Chief Mashabela, and the chief had actually tried to prevent the ANC Youth League from developing, and that is one of the reasons why Moses was killed.

MS MTANGA: Which traditional doctor told you this?

MR M M PHASHA: This traditional doctor was not telling me, but he was telling Jan Phasha, from whom we got this report. I do not know his name, but I know this traditional doctor comes from Taung in the Driekop district.

MS MTANGA: My understanding of your evidence was that six people were shown by the witch-doctor on the mirror, as people who had caused the disappearance of your brother, am I correct?

MR M M PHASHA: May you please repeat.

MS MTANGA: Okay, let me put it this way. The six people, Mamoghe Phasha, Reisiki Phasha, Reisibi Mashabela, Mamelele Phasha - I can't pronounce the name properly, but your father's aunt, were pointed out by a witch-doctor, how were they pointed out by the witch-doctor? How did you know it was them who were behind the disappearance of your father? How did you know?

MS MTANGA: From the report we were given by Jan Phasha, there was a doctor who was using a mirror to show those people who were alleged to have been involved in his disappearance.

MS MTANGA: At the point when you were giving this evidence, why didn't you state that the witch-doctor - when he showed these people the mirror where the six people appeared, why did you not mention that the reasons were given by the witch-doctor that your brother was killed because of his political activities?

MR M M PHASHA: From the evidence that I have tendered here I was answering according to the questions that were being asked. I was not asked about what you say I was supposed to have said. It is because maybe you did not ask me about that.

MS MTANGA: To which political organisation - or what was the political affiliation of Mamoghe Phasha?

MR M M PHASHA: I do not know in which political organisation Mamoghe Phasha belonged.

MS MTANGA: Did you know - okay, finish your sentence.

MR M M PHASHA: I do not have any knowledge about the political party she belonged to, the only thing that I believe is that she was being used to be against the youth.

MS MTANGA: Who was using Mamoghe?

MR M M PHASHA: Like I have heard from her that she was used, I heard this from Mamoghe Phasha, that there was a person who was their senior or their leader in witchcraft and he was the person who was using them and that was Maletswai Phasha.

MS MTANGA: What was the political affiliation of Maletswai Phasha?

MR M M PHASHA: I do not know in which political organisation did he belong.

MS MTANGA: Your uncle, Abraham Phasha was killed, can you tell us who gave orders for him to be killed?

MR M M PHASHA: What I can explain about the killing of Abraham Phasha, was that people were trying to get help as to how they could find Moses, because they failed to do that, they became angry. So in other words, his death was actually caused by the anger amongst the youth.

MS MTANGA: Did these youth have a political affiliation?

MR M M PHASHA: They belonged to the ANC.

MS MTANGA: I have no further questions, Chairperson.

CHAIRPERSON: Thank you, Ms Mtanga. Panel?

MR SIBANYONI: And you say you were the first to throw a stone at him, is that so?

MR M M PHASHA: That is correct.

MR SIBANYONI: Who said you should do it?

MR M M PHASHA: No-one gave me orders to do that, but I did that because I was angry.

MR SIBANYONI: So you are saying there was no instruction that he should be killed, but because you people were angry you spontaneously started throwing stones at him?

MR M M PHASHA: That is correct.

MR SIBANYONI: When you were explaining this word "moloi" and "ngaka", you gave an impression that these are two distinct people, there is a person who is generally known as moloi and then there will be one who is generally known as ngaka. Did I understand you correctly?

MR M M PHASHA: According to me there is a difference between the two.

MR SIBANYONI: Is moloi not ngaka?

INTERPRETER: May you please repeat the question, Sir.

MR SIBANYONI: Is moloi not ngaka?

MR M M PHASHA: According to me the witch is not the doctor, there's a difference between the two.

MR SIBANYONI: What's the difference?

MR M M PHASHA: For example, I grew up under the belief that there is witchcraft and witchcraft involved the killing of people, or the abduction of people from their communities under mysterious circumstances and the community would not know how they disappeared or how they died. They will only find his body - sometimes they will think that the person is actually dead, whereas he is not dead, he's been taken by the witches. I would say they are using magic.

MR SIBANYONI: These are the things which you heard when you grew up in your community, did you ever see a person who was believed to be dead, but in actual fact he was just abducted and used for other purposes?

MR M M PHASHA: I have never seen such a person.

MR SIBANYONI: You said Moses informed you that some people were causing him to be ill, did I understand you correctly?

MR M M PHASHA: That is what I said.

MR SIBANYONI: How would Moses know which people caused him to be ill?

MR M M PHASHA: He told me about those people who did that to him and what made me to believe was after we had asked a certain man to come and help Moses, because he would always complain about pains in his body, so while this man was still helping Moses and this man told us that we should go and find a certain muti at the river so that he could be able to help heal Moses, on our way, myself and Moses, to go and look for that muti, before we could arrive there at the - there is a cave there, before we could enter that cave, Moses said to me "You should know that there is a person who is accompanying us and he is guarding us." Then I asked him "Why do you say so?" He said to me "I know the condition in which I am, it will not be easy for you to understand, but I am telling you that there is a person who is guarding us and his name is Maletswai Phasha."

We continued to the river and then he said to me we should not use the same path, we should go different ways. He took another direction, I took another direction and that is when I met this Maletswai Phasha and he asked me what we were looking for. He was aggressive to me, but I did not tell him what we were looking for, but because Moses had already told me that I was one of the people who was bewitching him, when I asked him, I said to him that we are going to look for the cows and then he told me that there are no cows that side and he said to me we should not continue. Then I said to him "It's okay, I'm going to look for a person who has accompanied me", and then he said to me "Yes, I know the person who is accompanying you because I have seen him." ...(intervention)

MR SIBANYONI: Sorry, that's a long answer to my question, how did Moses know who is bewitching him. I wanted to know, did he have any gift or any skills to know people who are bewitching him?

MR M M PHASHA: Yes, I believe that there is a way that we can use to know that.

MR SIBANYONI: From your evidence-in-chief, Moses was not a high-profile member of the ANC Youth League, he was merely present when it was launched, did I understand you correctly?

MR M M PHASHA: Yes, that is what I said, but I don't know whether I should further explain that.

MR SIBANYONI: What do you want to explain further about that?

MR M M PHASHA: I want to say that the ANC Youth League, it was the first time that it was launched at that village and most of the people did not have membership cards, so Moses was one of the people who had not yet been issued with a membership card, he was just a supporter. That is why I said he was not a high-profile member of the Youth League.

MR SIBANYONI: Did you also personally ever look at the mirror to see these people who were accused as witches?

MR M M PHASHA: No, I did not look at that mirror.

MR SIBANYONI: Apart from Moses, no other ANC member was believed to be bewitched in the area, am I correct?

MR M M PHASHA: If I understand your question well, when this incident took place, the only person who was involved as an ANC Youth League member was Moses alone.

MR SIBANYONI: Is it not merely a coincidence that Moses was a member of the ANC Youth League, because according to you many people had died before and those people were believed to be bewitched? Is it not just a mere coincidence that Moses was an ANC member?

MR M M PHASHA: I do not understand the question well.

MR SIBANYONI: Let me put it in different ways. Many people died in your area and the community believed that those people were bewitched, is that so?

MR M M PHASHA: That is correct.

MR SIBANYONI: And amongst those people who died, only Moses was a member of the ANC Youth League. You said so, isn't it?

MR M M PHASHA: That is correct, because these other people died before the ANC Youth League was launched.

MR SIBANYONI: Yes, I'm coming to the fact that Moses died in the same way as the other people. There is no indication that he died merely because he was a member of the ANC Youth League? What do you say to that question?

MR M M PHASHA: I do not agree with you.

MR SIBANYONI: Why not?

MR M M PHASHA: I believe that Moses was killed because they knew that he was one of the supporters in the Youth League in the village. Like I have already explained, the traditional doctor who was helping him, that is Mashyani, did explain the reasons that led to Moses' disappearance and his ultimate death.

MR SIBANYONI: But the way you explained the condition under which his body was found, it looked like an ordinary muti killing. What do you say about that?

MR M M PHASHA: I can agree with you only because I believe that the people who did that, they did that to destroy evidence so that people could not know why they killed him.

MR SIBANYONI: And according to the judgment he was hung with his neck on a tree in the mountain, is that the position?

MR M M PHASHA: That is correct.

MR SIBANYONI: Thank you, Mr Chairperson, no further questions.

CHAIRPERSON: Thank you.

ADV SANDI: Thank you, Chair.

Just tell us very briefly about the mental condition of Moses - very briefly.

MR M M PHASHA: He was a healthy person mentally, because there was nothing that made me to suspect that he was not mentally well.

ADV SANDI: About how old was he? Was he working, was he employed, what was he doing? What was his occupation?

MR M M PHASHA: He was born in 1966. He worked at the Impala gold fields in Rustenburg, in the mine security section.

ADV SANDI: According to your evidence-in-chief you said Moses gave you certain names of people whom he believed were performing witchcraft against him. What did you do with that information that was given to you by Moses?

MR M M PHASHA: I kept that information to myself because I did not have the powers to say anything because I was not a parent. The person who was responsible was Jan Phasha, who was Moses' brother, and he was the person who was consulting with the traditional doctors and liaised with the relatives. So I compared the information that we were told by Jan, and I compared it to the one that I got from Moses, and I realised that there were similarities.

ADV SANDI: Are you saying that you did not even convey this information to Jan Phasha, who was busy going up and down trying to find out what could have happened to Moses? You didn't tell him about this?

MR M M PHASHA: I did not.

ADV SANDI: Is it the first time today that you are taking this information out of your chest? You've never said it to anyone after it was conveyed to you by Moses, even after he had disappeared and was found dead somewhere in the bushes?

MR M M PHASHA: That is correct.

ADV SANDI: Did you have any reason for doing so?

MR M M PHASHA: Yes, I do have.

ADV SANDI: Can you give us that reason.

MR M M PHASHA: Because of our belief - a person must be exposed by the traditional doctors, I was afraid to reveal that because I had not yet consulted with the traditional doctor and the people would ask me how do I know that, because that is the information that should be revealed by the traditional doctors. That is why I became afraid to reveal that to anybody.

ADV SANDI: Yes, but did you ever ask Moses why he believed that these people were performing witchcraft against him? Did you ask him how he knew this?

MR M M PHASHA: Yes, I did ask him.

ADV SANDI: What did he say?

MR M M PHASHA: He told me that he is able to see that like a person who is a prophet, that is why he said to me that it would not be easy for me to see what he was seeing at that time.

ADV SANDI: Can you please give us names of anyone in the village who was killed by a witch-doctor, in whatever manner that may have been applicable in any case. Just give us names. Before Moses disappeared and after Moses had disappeared. Just give us names.

MR M M PHASHA: One of the people that I remember was a certain boy called Mtso Taboga Mashabela. He was struck by lightening.

ADV SANDI: Is it your story that the witches in the village were targeting any particular people?

MR M M PHASHA: I do not believe that they would attack any person.

ADV SANDI: I'm not sure if you understood my question. Were these molois, these witches, targeting any particular kind of people in the community?

MR M M PHASHA: According to my belief they would not bewitch any person, they knew who to bewitch.

ADV SANDI: Who did they bewitch?

MR M M PHASHA: They were mostly targeting the youth and a person who is progressing well in life, who is able to attain certain things in life, like for example, education. He would be one of the people who would be targeted by the witches.

ADV SANDI: In other words, you're saying they would carry out witchcraft against a particular target out of jealousy?

MR M M PHASHA: It can be so, but I have no certainty of that, because I would not know what their motives are.

ADV SANDI: Yes. You're not - please correct me if I'm wrong, you're not suggesting that the actions of yourself, the actions of your co-applicants and members of the crowd were politically motivated? That is not what you are suggesting, are you?

MR M M PHASHA: I do not understand the question well.

ADV SANDI: Okay, let me put the question differently. Tell us what is political about the events in which yourself, your co-applicants and members of the crowd were involved in. What is political about that?

MR M M PHASHA: Politics are involved because after the chief had prevented the youths from organising themselves as they wanted to launch the branch in the village, the disappearance of Moses - one of the reports that we got from Jan Phasha was that Moses was killed because he was one of the youth who was involved in the launching of the ANC Youth League in our area. That is how we associated that with politics.

ADV SANDI: Are you suggesting that there was a conspiracy between the chief and the witches in the village?

MR M M PHASHA: That is my suspicion, or let me say, I believe so.

ADV SANDI: Why did you believe so?

MR M M PHASHA: The reason is that the chief, after a decision was taken that a traditional doctor should be consulted, that is the one who used the mirror, the chief went out with another group which was sent to go and see that traditional doctor, and when they arrived there the chief prevented that traditional doctor from carrying out his duties.

ADV SANDI: I'm afraid I've tried very hard to follow you, but I cannot follow you. Maybe the last question I should ask you, is it not the position here that you were bitter and angry that this sort of thing had happened to your brother?

MR M M PHASHA: It is so, but I became more angry when Abraham was also killed, because I believe that if I was angry from the beginning the community wouldn't have been involved. I managed to contain myself and not reveal what I heard from Moses. That shows that I wasn't angry at that time, I only became angry when Abraham was killed.

ADV SANDI: Why were you angry when Abraham was killed?

MR M M PHASHA: What made me angry was that I was told by Moses that Abraham was also involved, or was one of the people who were alleged to be witches, while on the other side Abraham said that he would not be able to help find Moses. That is one of the things that made me angry.

ADV SANDI: Thank you very much. Thank you, Mr Chairman.

CHAIRPERSON: Thank you.

Just one issue. Did you kill Abraham, the deceased, did you kill him for a political reason?

MR M M PHASHA: I believe so.

CHAIRPERSON: Can you explain that?

MR M M PHASHA: Abraham Madibeng Phasha was killed because of politics because he took part in the killing of one of the ANC members, or one of the supporters of the ANC Youth League in Chief Mashabela's village. That is where I was born. We expected that the members of that organisation would become future leaders and help the community.

CHAIRPERSON: Did you - do you mean members of the ANC Youth League, you expected them to become leaders in the future?

MR M M PHASHA: That is correct.

CHAIRPERSON: Is that why you killed the deceased?

MR M M PHASHA: That is the reason why he was killed.

CHAIRPERSON: Was he stoned by this entire crowd?

MR M M PHASHA: No, because they were so many people there, the only people who managed to stone him were those who were in the front.

CHAIRPERSON: But did the entire crowd support the attack on the deceased?

MR M M PHASHA: That is correct, because at the time he was being stoned some of the people were chanting and singing slogans while others were busy stoning him.

CHAIRPERSON: And were the members of this crowd either supporters or members of the African National Congress Youth League?

MR M M PHASHA: At the time of the incident I believe that they were supporters of the ANC Youth League.

ADV SANDI: Why did you believe that members of this crowd were members of the ANC Youth League? Supporters of the ANC Youth League, rather.

MR M M PHASHA: It is because when we started our meetings in preparation for the launching of the organisation all of them were in support of the launching of the organisation and there was no-one who was against the idea of launching the ANC Youth League, and there's no-one who showed any other allegiance to a certain organisation other than the ANC.

ADV SANDI: Sorry Chair, if I can just take this particular one further.

What time was it that this crowd of people congregated? What time of the day was it?

MR M M PHASHA: It could have been between 8 and 9pm.

ADV SANDI: Ja, but how were you able to observe who constituted this crowd?

MR M M PHASHA: From during the day while we were holding the meeting we were all together until the time we went to that place where the incident took place. There's no-one who left.

ADV SANDI: Thank you very much. I'm sorry about that Chair, thank you.

CHAIRPERSON: Okay. The crowd was chanting and singing, what kind of chants and what kind of songs were being sung? Was it church hymns or what was it? What kind of songs?

MR M M PHASHA: They were singing liberation songs.

CHAIRPERSON: Do you know what the toyi-toyi is?

MR M M PHASHA: Yes, I do.

CHAIRPERSON: Some of these chants and the songs that were sung, have you ever heard them during a toyi-toyi?

MR M M PHASHA: That is correct.

CHAIRPERSON: Now at this time when this incident happened, amongst the crowd were there members of the leadership of the ANC Youth League present?

MR M M PHASHA: That is correct.

CHAIRPERSON: Did they participate or support the action that was being taken?

MR M M PHASHA: I believe that they took part, although some of them did not manage to take part due to the size of the crowd.

CHAIRPERSON: Was there anybody who tried to stop the attack on the deceased?

MR M M PHASHA: No, there's no-one who tried to stop the attack.

CHAIRPERSON: Yes, Mr Richard, re-examination?

RE-EXAMINATION BY MR RICHARD: Thank you, Chair, a few questions.

The first I beg your leave to ask it, because I should have asked it and I omitted to do it. The applicant at paragraph C1 on page 15 of the bundle, puts Jahannes Phasha as a victim.

What happened to Johannes Phasha that made him a victim, why was he included? If I may ask.

MR M M PHASHA: Maletswai Phasha became a victim because his house was attacked and ransacked when they went to look for him, and his property was also damaged. That is at the time the youth were angry, looking for him at his place.

MR RICHARD: The next point if we go to paragraph C4 on the same page, and this flows from one of the questions in cross-examination, about whether there were other people who were similarly victims, as was the deceased, the question asks:

your answer there was:

Who is the person that was lost and dead? There, I've marked it with an X.

Are you talking about Abraham, or are you talking about somebody else who was lost and dead?

CHAIRPERSON: Or are you talking about Moses?

MR RICHARD: Or Moses. Do you remember what you meant?

MR M M PHASHA: I was actually referring to Moses as one of the victims. He was the victim of those people who were alleged to be witches.

MR RICHARD: Now my next question is, the crowd of about 500, what would they have done if the chief had not co-operated with them and allowed the schools to be closed so that pupils could join in the search for Moses and in the beatings that were going on?

MR M M PHASHA: May you please repeat that question.

MR RICHARD: The chief sent various letters which resulted in schools in the area closing, which enabled the plan, as you say that the scholars would be able to assist in attending the meetings and searching for Moses. Now my question is, what would the crowd have done if the chief had not co-operated with them in the manner you described?

MR M M PHASHA: I would not say what the community would have done, because they came to the chief, they believed that they will be helped to get Moses. They came to the chief to ask for help.

MR RICHARD: It arises from another question. I am correct when I understand it this way, that Moses' body was found a day after Abraham had been killed. In fact his body had not yet been found when Abraham was stoned, am I correct or have I misunderstood the sequence?

MR M M PHASHA: When he was stoned it was not yet known about Moses' disappearance. We only heard about his body after four months, and we were told that by the police who were involved in the investigation about Moses disappearance.

MR RICHARD: No further questions.

ADV SANDI: If I could just ask one or two questions which I thought I would ask the applicant.

Can you tell us very briefly what was the relationship between the chief and the elderly members of the community?

MR M M PHASHA: Are you referring to the councillors in the community? I do not understand whether you're referring to the leaders of organisations like the ANC. Can you please explain the question.

ADV SANDI: Now you didn't tell us anything about councillors, so I can't ask you anything about councillors in the community. I'm talking about the chief in the village and parents in the village, how would you describe the relationship generally between the chief and what one could refer to as parents in the community?

MR M M PHASHA: The relationship between the parents and the chief related only to the instructions that were issued by the chief and they will carry out such instructions. That is the only relationship that I think they had with the chief.

ADV SANDI: But you say the chief - would you say there was bad blood between the chief and elderly people in the community, or were they getting on well, without any friction?

MR M M PHASHA: I believe that there was bad blood between the parents and the chief, but that did not have anything to do with the killing of Madibeng Phasha, that only related to the chiefs misappropriation of the community funds. That is what I believe made the parents angry.

ADV SANDI: How would you describe the political affiliation or sympathy of most elderly members of the community at that time?

MR M M PHASHA: The majority of the parents were believed to be supporting the ANC, because they allowed the youth to launch the ANC Youth League branch, because some of these parents also acquired membership cards, but that is after I was arrested. When I was released on bail I discovered that the majority of the parents had the ANC membership. ...(intervention)

ADV SANDI: Okay, sorry, you've answered me. Thank you, Chair.

MR SIBANYONI: Just one question.

You were always talking about the ANC Youth League, was there no ANC branch in your area?

MR M M PHASHA: I heard about the ANC launch after I was released on bail, because I discovered that the majority of the parents had membership cards of the ANC, and one of the parents was also the Chairman of the ANC. His name was Knox Mokwala.

MR SIBANYONI: When Moses' body was discovered, were you still out or it was after you had been arrested? Were you present when the body was discovered?

MR M M PHASHA: I was not present, I saw his corpse at the mortuary.

MR SIBANYONI: Thank you.

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

MR RICHARD: That is Mr Phasha's case.

CHAIRPERSON: Thank you, Mr Richard. Who is next?

MR RICHARD: His brother, Daniel Phasha.

CHAIRPERSON: Thank you.

MS MTANGA: Chairperson?

CHAIRPERSON: Yes?

MS MTANGA: It's been indicated to me by Faiza, that you had agreed that the sitting will go on up until five to accommodate Correctional Services who are coming from Pretoria and who are going back there.

CHAIRPERSON: Oh, I thought that was corrected to the effect that Correctional Services hasn't got a problem if we were to sit a bit later.

MS MTANGA: Apparently it was ...(indistinct) after I had done so. They arrived late and then Faiza spoke to them after I had spoken to you about it. With the other Correctional Services people from Witbank.

CHAIRPERSON: Yes, but now what is the present position? We were told before we convened that Correctional Services hasn't got a problem if we were to continue later. Now what is the present situation, because I intend to carry on.

MS MTANGA: The present situation is that I spoke to the authorities coming from Witbank, that is the people who brought the first applicant, and then when the second group arrived we were busy consulting and they spoke to Faiza, and then I didn't get the feedback from them. So Faiza has just indicated to me now that they were only prepared to stay up until five.

CHAIRPERSON: Oh, which group is that

MS MTANGA: That will be Michael Phasha - it's the Pretoria group that brought Michael Phasha, Adgadi Skosana and one ...(intervention)

CHAIRPERSON: So it doesn't concern Daniel, who is now to testify?

MS MTANGA: No, Chairperson.

CHAIRPERSON: Not him. Sorry, Ms Mtanga - Mr Richard, where's the other Phasha?

MS MTANGA: The third Phasha is said to be sick, so he won't be attending the hearing, he's hospitalised.

CHAIRPERSON: Oh okay.

MR RICHARD: That is correct. I haven't taken it further. I think it's in everybody's interest for us to proceed. I do not know when he will be well enough to attend, and at this stage of the Truth and Reconciliation Commission's activities, I don't think we can hold back proceedings.

CHAIRPERSON: Yes, very well.

MS MTANGA: Chairperson, if I may just come in. Faiza has just indicated that the authorities from Pretoria, they're willing to wait for you to finish with Daniel as well.

CHAIRPERSON: Alright, we'll do that because it appears that they don't actually need, physically need Daniel in their group, but it might be good for Michael just to be present. I'll proceed to administer the oath.

MR RICHARD: Mr Phasha, would you please rise and be sworn. Daniel.

CHAIRPERSON: Are your full names Daniel Lisufi Phasha?

DANIEL LISUFI PHASHA: (sworn states)

CHAIRPERSON: Thank you, you can sit down. Yes Mr Richard.

EXAMINATION BY MR RICHARD: Thank you, Mr Phasha.

Mr Phasha, you've heard your brother's evidence and from that evidence we have the impression that you arrived late in the afternoon of the day that the deceased, Madibeng Phasha died, could you tell us what time you did arrive that day?

MR D L PHASHA: I arrived after five, that is between 5 o'clock and 6 o'clock.

MR RICHARD: Now why did you come there that day?

MR D L PHASHA: The reason I was there on that day, I received a telephone call from my sister and I was told that Moses had been missing and they are busy looking for him and they haven't yet discovered him. So I decided to go home to also help.

MR RICHARD: Now as you arrived in the village, what did you find? Who did you talk to? What did you learn?

MR D L PHASHA: At first I went home and I enquired as to where other members of the family were. I was told that everyone had gathered in the chief's kraal and they are having a meeting in connection with the disappearance of Moses.

MR RICHARD: Now did you know that any other meetings had happened, or did you know whey those meetings had happened?

MR D L PHASHA: No, I didn't know, I only came to know that time. I was told that since the beginning of the week there were meetings. I only arrived on Sunday.

MR RICHARD: Now when you joined the crowd, what was happening? When you joined your brother ...

MR D L PHASHA: When I went to the people who were in a meeting, I discovered that people were going back home to go and eat and somebody was going to fetch the person who knew where Moses was.

MR RICHARD: And who was that person who knew where Moses was?

MR D L PHASHA: When I heard - people were talking, and I heard that it was Makhubelani Moloto.

MR RICHARD: Now what is Mr Moloto?

MR D L PHASHA: He is a citizen and a community member and also he is a witch-doctor, and also he's the chief's witch-doctor.

MR RICHARD: Now when you use the word "witch-doctor", I must ask the first question. Is there a difference between a moloi and a ngaka?

MR D L PHASHA: There is a difference.

CHAIRPERSON: Do you agree or disagree with the testimony of your brother Michael in this connection?

MR D L PHASHA: I do not quite understand.

CHAIRPERSON: You've heard what Michael told us about a witch-doctor and a traditional doctor, the one is the bad one and the one is the good one. You've listened to that evidence, do you know agree or disagree with that? If you agree I don't want to hear everything about that again, if you disagree then you can tell us.

MR D L PHASHA: I do agree because it is true, there is a difference.

CHAIRPERSON: Yes Mr Richard.

MR RICHARD: So Mr Moloto, is he a ngaka or a moloi?

MR D L PHASHA: Moloto?

MR RICHARD: Moloto, yes.

MR D L PHASHA: A witch-doctor.

MR SIBANYONI: Ms Interpreter, he's using the word ngaka to refer to a traditional healer, and he doesn't use the word ngaka to refer to a witch-doctor. That is why there is such a confusion.

CHAIRPERSON: Yes, thank you.

MR RICHARD: Thank you, I won't correct the interpreter, I'll just continue.

CHAIRPERSON: Yes, it seems as if the chief was using the good one and the ones that were doing the evil stuff are the bad ones. So we're talking about the good one now.

MR RICHARD: Thank you.

Now to go quickly, was Mr Moloto called to the chief's kraal where there was a meeting, and did he get there?

MR D L PHASHA: He was called, but he didn't come according to my knowledge.

MR RICHARD: So since he didn't come, what was done about it? Was some other ngaka consulted?

MR D L PHASHA: After it was realised that he didn't come the community was angry, they left the chief's kraal and they talked to Mr Mashyani Phasha, because he was the one who had more information on the person who had disappeared and also he had more information as to what happened.

MR RICHARD: And what happened as a result of that discussion with Mr Mashyani Phasha?

MR D L PHASHA: When they left with him to his house they wanted him to point to them as to where the person who had disappeared was. I realised that the community was angry and probably things can get out of hand, therefore I joined those people who left with Mr Phasha.

MR RICHARD: And where did you go?

MR D L PHASHA: To his home. When we arrived in his house he started to be doubtful, he didn't want to point to these people as to where the person was, that's when I stopped the crowd and I started speaking to him. I explained to him that I didn't have more information since I wasn't at home. I explained to him that the reason these people were there, they wanted to know as to how the person had disappeared. They wanted him to point out to the place where they can discover the person who had disappeared, but then he didn't know exactly.

MR RICHARD: Did Mr Mashyani Phasha point out anyone else who might be able to help the crowd identify who knew where Moses was?

MR D L PHASHA: Yes, if I remember very well, on that day a certain man asked something and this person was the leader of the Youth League.

MR RICHARD: And did this leader of the Youth League ask?

MR D L PHASHA: He asked him as to who were the culprits, the people who were involved in the witchcraft. He said it was Johannes Maletswai Phasha. Immediately they didn't waste time, they looked for him and they didn't find him. They went looking for Johannes Maletswai Phasha.

MR RICHARD: Why did they look for Johannes Maletswai? Isn't that Jan M Phasha? Johannes and Jan, aren't they the same person? Mr Phasha, is Johannes Maletswai Phasha the same person as Jan Phasha? I think there may be some confusion.

MR D L PHASHA: No, it's not one person. Maletswai Phasha is one of the people who were suspected to be witches and Jan Mashyani Phasha is the one who had more information on the searching of the missing person.

MR RICHARD: Now as a result of this discussion between the ANC Youth League leader, people were going to look for Jan Phasha, did they find him?

MR D L PHASHA: They were looking for Maletswai Phasha, not Jan Phasha.

MR RICHARD: Maletswai Phasha, sorry I'm ... Did they find Maletswai Phasha?

MR D L PHASHA: No, they didn't.

MR RICHARD: Then what did they do next after not finding Maletswai Phasha?

MR D L PHASHA: After they didn't get hold of Maletswai, I left that group. I went home because on that day it was raining and I was wearing clothes that I could say that I cannot wear in that weather. When I asked them as to where they were going, I was told that they were looking for Madibeng Phasha.

MR RICHARD: Sorry, they were looking for which Phasha? Mr Madibeng Phasha, Abraham?

MR D L PHASHA: Yes, they were looking for Madibeng Abraham Phasha.

MR RICHARD: And do you know why they were looking for Abraham Madibeng Phasha?

MR D L PHASHA: I wanted to know at that time, because I didn't have more information, and they explained or it was explained to me that he was also a suspect in the witchcraft.

MR RICHARD: And what did you do next?

MR D L PHASHA: After a while I could hear a loud noise and that's when I left my home, because I wanted to know if they had got hold of the person they were looking for, and I met them near a playground. I requested them to stop there because I wanted to speak to them. They stopped there. I started questioning my uncle, Madibeng, and I said to him, or I wanted to find out from him if he knew anything about these allegations, and he explained to me that he was being used by these people and he also said he was in conflict with his brother's children.

MR RICHARD: How was he being used?

MR D L PHASHA: The way he explained to me, he said he was being sent, even though he didn't explain into details as to how he's being sent to take those people he has been sent to take them, or rather, the targets.

MR RICHARD: And who was using him?

MR D L PHASHA: When I questioned him he said it was Maletswai Phasha who was sending him.

ADV SANDI: Sorry, I'm just confused about the names now. Who is this uncle of yours you were questioning?

CHAIRPERSON: Abraham.

ADV SANDI: Abraham. Okay, I thought it's Johannes ... too many Phashas here.

MR RICHARD: Now while you were talking to your uncle in front of the crowd, what did your uncle say about Moses?

MR D L PHASHA: When he responded to my question he just said he was being used, these people are sending him to fetch their targets.

MR RICHARD: Was Moses a target?

MR D L PHASHA: According to his version it was like that, he was sent to fetch Moses.

MR SIBANYONI: Can I just ask a question here.

Was Moses not related to Madibeng?

MR D L PHASHA: They are somehow related because Moses' father and Madibeng, they're probably brothers.

MR SIBANYONI: Thank you.

MR RICHARD: Now from your last question these people used Madibeng Abraham Phasha as a means of fetching Moses as a target, who were the people that you call "these people"?

MR D L PHASHA: He told me about Maletswai Phasha and he didn't tell me about others, he just told me about Maletswai Phasha.

MR RICHARD: So if I understand your answer to my question, Abraham Phasha now in front of the crowd, admits procuring a victim for the moloi, am I right?

MR D L PHASHA: Yes, it is so, because he also requested me to ask for forgiveness from these people, he said I must apologise to these people on his behalf.

MR RICHARD: Now you're using the phrase "these people", this time I'm assuming that these people are the ANC youth that are around him and you.

MR D L PHASHA: Yes.

MR RICHARD: Now did you try and intercede on his behalf with the community?

MR D L PHASHA: I wanted to but then the crowd was angry, therefore I was scared that if I do so they will also be mad at me, thinking that I'm protecting him.

MR RICHARD: So you didn't attempt to protect him or persuade the crowd to leave him alone, what did you do instead, did you stay with the crowd or leave the crowd?

MR D L PHASHA: It was a big group, the group divided itself into two, one group left, that's the group that I joined because this group that left were looking for someone else who was also a suspect. According to the group this person was also a suspect, therefore I decided to accompany the group because I wanted to protect this person because he was not a witch.

MR RICHARD: No who was this person that you wanted to protect, who was not a witch?

MR D L PHASHA: Mashayani Phasha.

MR RICHARD: Now did your part of the crowd find Mashyani Phasha?

MR D L PHASHA: Yes, I found him, I met him on the road after I left the crowd.

MR RICHARD: So the big group of people that you left weren't with you anymore? In other words, there were two groups of people, you had gone with one to look for Mashyani Phasha and the others stayed with Madibeng and by the time you met Mashyani Phasha, you weren't part of a crowd anymore, is that correct?

MR D L PHASHA: When I found Mashyani Phasha there were two people who were with him and the other people were running, they were not just walking, because they were in a hurry to find a suspect before they flee.

MR RICHARD: And who were you with? Now we know who Mashyani - were you with the big crowd?

MR D L PHASHA: I was the only one.

MR RICHARD: So what did you say to Mashyani Phasha?

MR D L PHASHA: I told him that I had heard from the group that he was also a suspect and these people wanted to kill him, it will be better for him if he runs to the police station because there he will be protected and the police will intervene. As we were talking two police vans approached. I don't know whether they were called by other witches who ran to the police station. When they met us they started firing. As they were firing the group which was in front ran away. After they ran away Mashyani and myself were left there.

MR RICHARD: Now in the meantime as you've heard from your brother, there were around 500 people with Madibeng Phasha, did you ever see Madibeng Phasha alive again after you left him with his big crowd?

MR D L PHASHA: I left him alive there.

MR RICHARD: Did you ever see him alive afterwards, after you left him?

MR D L PHASHA: No, I never saw him alive.

MR RICHARD: Did you participate in the stoning?

MR D L PHASHA: No, I didn't.

MR RICHARD: Very well. Now as at February 1993, did you belong to any political organisation or were you a supporter of any political organisation?

MR D L PHASHA: I was a supporter and a follower and I used to attend all the meetings. When I was home I would attend all the meetings.

MR RICHARD: You were a supporter and follower and a meeting attender of which party's activities?

MR D L PHASHA: I was a supporter of the ANC Youth League.

MR RICHARD: Now did you know Moses Phasha?

MR D L PHASHA: Yes, I knew him, he is my brother, because his mother is my mother's sister.

MR RICHARD: Now was he a supporter or member of any particular political party?

MR D L PHASHA: He was one of the supporters because I used to see him in the meetings and every time when the ANC Youth League was having meetings he was there, one of the people present.

MR RICHARD: So was he an active supporter who assisted the ANC in holding their meetings and doing what they wanted to do, or did he just go to meetings every now and then?

MR D L PHASHA: What I know is that he would attend the meetings. When they ask all the members of the Youth League to come and converge there, he was always present.

MR RICHARD: And for how long had he been an active supporter of the ANC?

MR D L PHASHA: I think from 1993, because I followed the ANC since 1986.

MR RICHARD: I didn't hear your answer. From when was Moses an active supporter of the ANC? I'm sorry, I missed your answer.

MR D L PHASHA: The first time I saw him in the ANC activities was from 1993, because he died in 1993.

MR RICHARD: And before he died, how often had you seen him at ANC activities? We know he died in ...(intervention)

CHAIRPERSON: Mr Richard, I don't think this is really in dispute.

MR RICHARD: Okay.

CHAIRPERSON: If it is in dispute, then it can be picked up in cross-examination, but it's not in respect of the evidence of Michael.

MR RICHARD: Thank you.

So you had been a member since 1986, or a supporter since 1986, is that correct?

MR D L PHASHA: That is correct.

MR RICHARD: Now earlier in your evidence you mentioned an ANC leader who was speaking to Jan M Phasha, do you remember the name of that leader, the youth leader that you were talking about?

MR D L PHASHA: Yes, I do remember his name.

MR RICHARD: What was his name?

MR D L PHASHA: His names were Oupa Kleinbooi Mokwala.

MR RICHARD: Now as you had been a supporter for a long time, would you be able to say that in the crowd around there, there other supporters of the ANC or were they just observers, spectators, curious people? Or were they ANC supporters?

MR D L PHASHA: I would put it this way. I did not know whether some of them were supporters of the ANC, but two to three of them I indeed knew that they were supporters, because I remember on a particular day when a meeting was held, a community meetings, I saw them in that meeting and they were the people who were actually leading the meeting, the proceedings in the meeting.

MR RICHARD: So from that we infer that the ANC youth leaders were part of the crowd that ultimately stoned Madibeng Phasha, or were present in the crowd.

MR D L PHASHA: They were present, some of them were present.

MR RICHARD: Now to curtail the number of questions I'll put it as a catchall, is it also correct that you like your brother Michael, grew up and were educated in that area, and familiar with the tribal customs of the area?

MR D L PHASHA: That is correct.

MR RICHARD: Now do you or did you then believe in witchcraft?

MR D L PHASHA: I did not believe in witchcraft because I haven't seen anything about that.

MR RICHARD: Now do you believe that molois and ngakas have powers to do things with the supernatural that will help or harm people?

MR D L PHASHA: I believe that a witch can harm a person, but not a traditional doctor.

MR RICHARD: Thank you.

MR SIBANYONI: Excuse me Mr Richard, I'm sorry to interrupt.

From what you are saying I understood you to say you did not take part in the killing of Madibeng Phasha, is that so?

MR D L PHASHA: That is correct.

MR SIBANYONI: And you even assisted Maletswai Phasha to avoid from being killed, is that so?

MR D L PHASHA: It is not Maletswai Phasha, but Mashyani Phasha.

MR SIBANYONI: The question is, for what incident are you applying for amnesty?

MR D L PHASHA: I apply for amnesty in connection with my involvement and my inability to assist Madibeng when he asked me to ask for forgiveness on his behalf, because I was afraid they would also think that I am involved and I want to protect him. That is the mistake that I made. If I had asked for forgiveness on his behalf, maybe they could have not killed him.

MR SIBANYONI: Thank you.

MR RICHARD: Chairperson, I'm aware of the Committee Members' problems. The applicant was convicted on the basis of common purpose, as it quite often in the case of witchcraft killings. There were certain witnesses whose evidence was preferred instead of his denial at the trial. If we accept that the trial court found him guilty on the basis of common purpose, I would then attempt to argue that there is an act that he can receive amnesty for. It's the best I can do in the situation. He denies participating in the killing, but within the act, the concept of common purpose.

CHAIRPERSON: Yes, it's not necessary, physical participation, but we can deal with that. Perhaps we can carry on with the evidence.

MR RICHARD: Thank you.

My last question established the you do believe in witchcraft, now you've heard your brother's evidence as to why he believes the moloi for political reasons, decided to arrange or cause your brother Moses to be killed. Do you associate with what he said, or not?

MR D L PHASHA: I would say that I associate myself, but on the other hand I would say I do not because in truth most of the things that happened there and were said there, I did not know because I was not always present at that place, because I was a person who was working, I was employed.

MR RICHARD: Why do you think Moses Phasha was killed?

MR D L PHASHA: To be honest even today I cannot say why he was killed, I really do not know, but what I hear from other people is that he was killed because he was one of the people who was used, or rather his parts were used, were taken to be used for muti purposes.

MR RICHARD: And do you see any political advantage that the ANC or its opposition would get by that act of taking body parts for mixing into muti?

MR D L PHASHA: NO.

MR RICHARD: No further questions.

CHAIRPERSON: Yes thank you, Mr Richard. Mr Mokoena.

MR MOKOENA: No questions, Chairperson.

CHAIRPERSON: Thank you. Ms Mtanga.

MS MTANGA: Thank you, Chairperson, I have a few questions.

CHAIRPERSON: Yes.

CROSS-EXAMINATION BY MS MTANGA: Mr Phasha, what did you understand to be political about the death of Mr Abraham Phasha?

MR D L PHASHA: Like I have already explained, the killing of Madibeng Phasha happened because he was a person who was sent to go and fetch Moses Phasha, because he was one of the family members. So it would be easy for him to do that, because other people would be suspected if they enter the household.

MR RICHARD: How did his death benefit your organisation, that is the ANC Youth League?

MR D L PHASHA: Are you referring to Moses or Madibeng?

MS MTANGA: I'm referring to Abraham Madibeng.

MR D L PHASHA: There is nothing that ANC benefitted from his death, or any other political organisation for that matter. That is my perception.

MS MTANGA: Did you believe that your brother's death had anything to do with politics? That is the death of Moses.

MR D L PHASHA: Like I have already explained, I did not have that knowledge and I did not have that belief, that he might have been killed for political reasons.

MS MTANGA: When you discovered that Abraham was killed, what was your - when you heard that he was killed and he was killed by the ANC Youth League members or supporters, what was your attitude towards his killing?

MR D L PHASHA: I was disturbed by that, because I heard that when I was at work. I didn't like that, it disturbed me a lot and I knew that it wouldn't be easy for the person who was responsible for his killing to be caught.

MS MTANGA: Are you talking about Abraham Phasha?

MR D L PHASHA: Yes, I am talking about Abraham Phasha.

MS MTANGA: If the youth had not killed Abraham on that day, what would have happened to Abraham? When you look back now - at the time, how would he have been dealt with had the youth not killed him?

MR D L PHASHA: If they did not kill him, I think that would be handled by the police because I also pressurised them that that should be handled by the police, maybe we could have managed to get the person that was responsible.

MS MTANGA: I have no further questions, Chairperson.

CHAIRPERSON: Thank you, Ms Mtanga. Panel.

ADV SANDI: Yes, just one or two.

Mr Phasha, do you perhaps know of any frictions, personal frictions that existed within the Phasha family?

MR D L PHASHA: Because I am the first-born at home, I remember that I once heard about conflicts that existed in the family. I remember that at one stage I even wanted to know why that was happening, but I was never given a reason.

ADV SANDI: Do you know if there was any conflict between Jan Phasha and Abraham Madibeng Phasha?

MR D L PHASHA: I wasn't certain about a conflict that existed between the two, what I knew was that they were in good terms.

ADV SANDI: How were they related to each other, were they brothers, cousins?

MR D L PHASHA: I would put it this way, Mashyani Phasha's mother was the sister to Madibeng Phasha's father. They had one - Madibeng Phasha's father and Abraham Phasha's mother were brother and sister.

ADV SANDI: Abraham Madibeng Phasha, what was his occupation, how did he make a living?

MR D L PHASHA: I was once with him in Johannesburg, he actually took me to Johannesburg. He was working there, but I did not know where he was working in Johannesburg.

ADV SANDI: And Jan Phasha?

MR D L PHASHA: He was working at Iscor in Pretoria.

ADV SANDI: Just one last question. Your actions and involvement in this incident on that day, would you say that had anything to do with your political convictions? Did it have anything to do with your being a supporter of the ANC?

MR D L PHASHA: My involvement on that day, I would agree that they associated me with that, because whenever the Youth League holds meetings they would invite me and I would go and attend those meetings.

ADV SANDI: Yes, but you did not get involved in this incident because you wanted to further the aims and objectives of your organisation, as I understand you, you were just concerned about your brother, Moses, who had disappeared and everyone was looking for him. Wasn't that the main problem you had in your mind and the reason why you were involved in this incident?

MR D L PHASHA: That is correct, that is why I was actually involved in this thing.

ADV SANDI: Do you know the political affiliation of Jan Phasha?

MR D L PHASHA: I do not know.

ADV SANDI: The political affiliation of Johannes Maletswai Phasha, do you know?

MR D L PHASHA: I do not know which organisation he was supporting.

ADV SANDI: Do you know which organisation Abraham Madibeng Phasha supported or sympathised with?

MR D L PHASHA: I did not know which organisation he was supporting because he was a parent.

ADV SANDI: Thank you, Mr Phasha. Thank you, Mr Chairman.

MR SIBANYONI: Mr Phasha, what did the ANC Youth League lose by the death of Moses?

MR D L PHASHA: I believe that he will be one of the community leaders because even the community was involved in the search of Moses.

MR SIBANYONI: You said you believe in witchcraft, do you know about this belief that if you want to be rich or you want to be strong, well protected, you have to bring body parts from a member of your family or a relative? - as muti.

MR D L PHASHA: I did not know about that, I only heard people saying that. I do not have certainty about that, because I am a Christian.

MR SIBANYONI: But people talk a lot about that, you are aware of such beliefs.

MR D L PHASHA: Yes, that is correct, I did hear about that.

MR SIBANYONI: Thank you, Mr Chairperson.

CHAIRPERSON: Thank you.

Mr Phasha, let me just explain to you that you are not able to get amnesty unless you have committed a crime. Now I want to come back to what you did on this day when Abraham Phasha was killed, did you commit any crimes against Abraham Phasha on that day?

MR D L PHASHA: The only thing I can say I did that say was my refusal to ask for forgiveness on his behalf. I feel guilty about that because had I don that, maybe I could have managed to save him. That is my belief.

CHAIRPERSON: Yes, but did you do anything that was wrong to Abraham Phasha himself? Any crime.

MR D L PHASHA: The only thing that I think I can say I did is that when he ask me to ask for forgiveness on his behalf, I refused. I think that is the big mistake that I did, because he was really in trouble. He was going to be killed and indeed they killed him. That is why I even today believe that I was wrong by refusing because I could have managed to save his life. But on the other hand, I think if I did that, if I did ask for forgiveness on his behalf, maybe they could have harmed me as well. But I feel guilty for my refusal.

CHAIRPERSON: Did you cause any harm, yourself personally, did you cause any harm towards Abraham Phasha?

MR D L PHASHA: I did not harm him.

CHAIRPERSON: Did you want him to be killed?

MR D L PHASHA: No, I didn't want him to be killed, but due to my refusal I think I have contributed in his death.

CHAIRPERSON: If you had asked and the crowd killed him anyway, would you then have felt guilty?

MR D L PHASHA: If I had done that and they proceeded with their intentions of killing him I would not feel guilty about that today because I had at least tried something, but I could not ...

CHAIRPERSON: Did you associate yourself in any way with what the crowd, the ANC Youth League crowd were about to do to Abraham Phasha, or eventually did to him? Did you associate yourself in any way with that? In other words, did you agree in any way with that?

MR D L PHASHA: I did not agree with him that he should be killed, but I supported them that the person who was involved in the killing should be hunted and - he should be caught and handed over to the police.

CHAIRPERSON: That's all that you were prepared to associate yourself with, to expose those who were responsible and to hand them over to the police so that the police can deal with that.

MR D L PHASHA: Yes, that is the only thing that I supported.

CHAIRPERSON: Yes. Yes Mr Richard, any re-examination?

MR RICHARD: None, Chairperson, argument yes, later.

CHAIRPERSON: Yes thank you, Mr Richard. Mr Phasha, thank you, you're excused.

MR RICHARD: That is Mr Phasha's case.

CHAIRPERSON: Thank you, Mr Richard. Mr Mokoena, have you got any evidence that you need to tender?

MR MOKOENA: There is no evidence that I can tender, Mr Chairperson.

CHAIRPERSON: Thank you, Mr Mokoena. Ms Mtanga?

MS MTANGA: No evidence, Chairperson.

CHAIRPERSON: Thank you. Yes Mr Richard, you have your opportunity now to argue.

MR RICHARD IN ARGUMENT: Thank you.

As the Committee is more than aware, there is a huge distinction between the first and second applicants before it. On the one hand we need remind ourselves that the test which should be applied to an applicant, is what his honest and bona fide, but subjective intention was when he did what he admits to doing.

In Michael Phasha's case, and for the sake of formality I'll call him the first applicant, he gave evidence first, he admits the crime of murder in that he certainly joined in with the crowd by associating himself by the act of throwing the first stone. However, if we look further in his chain of perception, what he perceived and saw then was that he was stoning a person who had been part and parcel of the chain that had led to the death of his brother, Moses Phasha. His evidence was straightforward and clear and I believe credible. The questions that we need ask when we talk about witchcraft, is not whether the belief is reasonable in the logical sense but whether it is reasonable in the cultural sense.

The evidence before the Committee is clear, that the applicant comes an area where belief in witchcraft is rife. We all know, and I don't intend labouring this argument by quoting from the various volumes of Commissions and Reports that we all have copies of, they do establish the prevalence of the belief. What's further, they also establish that at this time, that is January 1991, there was a very strong politically motivated, anti-witchcraft mood. Without arguing chapter and verse from the various reports, I believe it may be submitted, and one may in the year 2000 say with good reason, that for political reasons the crime or the practise of witchcraft was seen as reactionary, oppressive and counter to the development and movement towards a democratic State at the time. And indeed it might well have been perceived so, for good reason. Without labouring the argument, the coup in Venda had happened, the case can be made clearly that as a result of the political failure of the homeland structures, homeland leaders and the security apparatuses of the old State, did have an ascendancy and they were seen as the enemy. Evidence in other hearings has been led, to the effect that crowds such as the 500-crowd that we talk about today, did chant freedom slogans and did chant praises such as "Kill the impimpi, kill the moloi".

Now one then need go no further than to think of a matter that I know Adv Sandi and I are both familiar with, and that's the decision in the Sekela Dlomo matter. There the decision was that when an ANC MK operative shot his junior, who was found not to be an impimpi, he was entitled to amnesty on the basis that subjectively he bona fide and honestly believed that the non-impimpi posed a threat to his unit. Here there is much stronger and far more cogent factual reason for it to be argued and held, that Michael Phasha had an honest and bona fide belief that Madibeng Phasha posed a threat to the liberation movement of which he was an associate and with which he had an associated himself.

It is also useful when reflecting on other decisions, to think of those where ANC supporters/members has decided to go out and put an end to criminal gangsters. In those cases the act of murdering a gangster was not held to be one committed with a political motive. However, they are clearly distinguishable. The subject of belief held by Michael Phasha, was that whether it was the unknown molois or the named molois, or the fatality, that is Madibeng Phasha, they were seen and believed to be persons operating with a political agenda against the cause he was associated with. And I don't believe it would be a violation of the expectation of consistency to distinguish between the two situations.

CHAIRPERSON: Yes Mr Richard, I don't think it always helps to try and squeeze these different kinds of decisions into the same old ... what we must really do is, we must look at this particular instance here. Now isn't this - this is not so much prima facie in my view, it's not so much about the broader concept of witchcraft, witches and so on, this was a specific context where the ANC Youth League regarded people who were also seen as being associated with witchcraft, in the beliefs of that particular society there, but they were seen a part of the political enemy. And that's where it starts off. I assume, on the factual situation, if they were not regarded as witches they would still have been political enemies.

MR RICHARD: My argument is, in that particular context of this area that we talk about, the perception of the witch cannot be distinguished of an urban Self-Defence Unit's perception of a policeman. It's the same ...(intervention)

CHAIRPERSON: Yes, I mean it's not so much the concept of a witch, it is the question of a political opponent. These individuals were regarded as being on the part a chief who was seen, through his interruption of the activities of the ANC Youth League, as a political opponent. And that's really where it starts off. So the question of witchcraft, the way I see the matter, I might be wrong, the way I see it is not so determining of this scenario.

MR RICHARD: The only point that I labour on witchcraft, is in the bona fides of the belief.

CHAIRPERSON: Yes, yes.

MR RICHARD: And after that it becomes almost irrelevant.

CHAIRPERSON: Ja, that is certainly the approach of the Committee, but I mean as I've said, to try and squeeze these matters into the same sort of mould doesn't really help very much, they're always different. We must look at the particular circumstances of this one, we must decide on these facts.

MR RICHARD: Chairperson, I'm anticipating arguments that I don't need to reply to tonight, so I thought I'll deal with them now.

However, while - I think, should the Committee want written argument, I'm quite happy to prepare it and have it finished by the end of the week after next, but I think for the moment I can pass to Daniel Phasha's situation.

CHAIRPERSON: So is your submission that the conduct of the first applicant, as you call him, has been associated with a political objective?

MR RICHARD: That is my submission. The political objective was to eliminate a political opponent, which witches were perceived to be at the time, and that ...(intervention)

CHAIRPERSON: Not witches in general, but those people in Driekoppen, who were regarded as siding with the chief?

MR RICHARD: Correct.

CHAIRPERSON: Or allowing themselves to be used by the chief.

MR RICHARD: Whether it's siding with the chief, or siding with a certain percentage of molois, as they are termed, were against progress. Again it doesn't really particularly matter, the perception and belief and conviction that the perpetrator of the violation, such as Michael Moloi had, was that he was furthering the cause of the ANC, as much as a person who might have shot a community Constable at the time, had the same belief. And the fact that it was witch doesn't matter in any material sense, it's the belief and intention and subject of perception. I really believe that at this stage of the TRC proceedings, to repeat all the arguments in that context takes us very little further, we all know them.

And then where I would like to go is I don't believe it would be appropriate to simply leave Daniel Phasha's situation commented on by the basis that he admits to no crime and therefore should not be considered.

CHAIRPERSON: Yes, that might have to be the focus of your submissions in regard to his situation.

MR RICHARD: I believe that is a far more difficult situation to argue, because there we have a man who sat before us and gave a straightforward direct and in my opinion, highly credible evidence. He had no political objective and he didn't commit a crime.

ADV SANDI: ...(inaudible) the context in which the incident took place, shouldn't that perhaps be a major consideration when one has to look at his application?

MR RICHARD: Chairperson, my next point would be that the context was that at the time the deceased was certainly in a broader context, murdered with the political motives that we've argued, and I believe convincingly so for his brother, Michael, and I believe it would be absurd to have a situation where quite rightly, Michael Phasha would qualify for amnesty for being part of what was a murder and the person who because he saw hit rationally and clearly, should be sanctioned.

There my argument is that since the incident of the killing of Madibeng Phasha, clearly constituted a crime, since Daniel Phasha was convicted on the basis of common purpose for it, the wording of the Act does stretch to the argument that since the crime was committed with a political motive and objective, he who might have been associated with it by virtue of the common purpose and therefore convicted on that basis, should enjoy the benefits that his co-perpetrators or common purpose partners, who fall within the strict language of the Act, do enjoy.

CHAIRPERSON: But the question is, I mean he says - he gives a certain sort of indication of his desires on the scene, but he's part of a murderous crowd, he says himself that he realises that this crowd is going to kill the deceased, and then he proceeds and he elicits a confession, in the presence of the crowd he elicits a confession from the deceased. Is that conduct without any legal consequences? Under those circumstances.

MR RICHARD: Listening to the applicant's evidence and also in preparation, my question was, on that level of participation, was he in the first instance correctly convicted? We don't have a transcript of the evidence, so I can't take that point further, but let's assume that the trial court's evidence did correctly convict him. It's difficult to see how, but if it is correct, that by the facts that we have before us today, there was a sufficient association and his ...(intervention)

CHAIRPERSON: At least with dolus eventualis.

MR RICHARD: I beg your pardon?

CHAIRPERSON: At least with dolus eventualis, where you elicit the confession under circumstances where you realise that that can only but contribute towards the killing. Wouldn't that amount to dolus eventualis, under those circumstances?

MR RICHARD: I believe the Chairperson is correct.

CHAIRPERSON: Because there you don't so much look at subjective beliefs and the subjective state of mind of the accused, you look at the objective circumstances.

MR RICHARD: In support of that argument I would use my first argument that since the context of the commission of this particular crime is such that it satisfies the requirements of the Act, if there be an objective dolus eventualis, as the Chairperson has argued, clearly the fact that it's not subjective, cannot be held against the applicant.

CHAIRPERSON: Yes, because that's a legal question, it's not a factual question, the question of dolus eventualis.

MR RICHARD: And where an applicant might be entitled to the benefit of a subjective test, that benefit should certainly not be used to exclude the benefit of an honestly political crime, which is objectively so on a dolus eventualis, and I believe the Chairperson is correct, the analysis is quite correct. By questioning his uncle, Madibeng, he provides the crowd with exactly what they're looking for, and that is the nexus that they've been trying to find, somebody's connection with the disappearance.

ADV SANDI: Isn't the question here, Mr Richard, really that a quasi judicial tribunal like the one we are as this Amnesty Committee, how far it should go? I mean should it test strictly, apply those principles of the doctrine of common purpose in the same way that a criminal court would do, where you deal with an accused person before ...?

MR RICHARD: My argument is that an Amnesty Committee is sui generis. I've decided that to analogise it to quasi judicial or quasi administerial, in fact takes us very little further.

ADV SANDI: Yes, we're not a criminal court.

MR RICHARD: And certainly there is a factual enquiry, but the purpose has to be seen in the postscript to the Interim Constitution and the Act constituting the Commission, and the object is, where on proper enquiry the Committee, therefore the Commission is satisfied that the elements of amnesty are satisfied, certainly it requires an applicant to come forward and make an application, but I have argued before that even a person who might not be mentally competent can qualify for amnesty, because the situation is there, the fact that there may not be full competence at the time of the application, it certainly doesn't exclude the operation of the act, it's not a juristic transaction where you have to have a contractual capacity, and in the same as sense the Committee now raises. The strict tests of common purpose, while they may be used to constitute a crime for the purposes of whether there's an act which constitutes a crime or delict, I don't believe we should apply them so strictly so as to make sure that we eliminate a crime or delict for which an applicant is serving a prison sentence. That would have been an ...(intervention)

ADV SANDI: He's been convicted already.

MR RICHARD: Yes. I don't think it's our job to try and destroy the conviction so as to prevent giving him amnesty, because that would be in fact a defeat of the purposes of the Act. The same way as my argument about mental competence. If your going to use those strict arguments in law to eliminate competence to bring it, it makes a mockery of the idea of amnesty, and it defeats the objectives of the Act, and that is to put the past behind us by giving amnesty where it can be properly given.

My interpretation of the Act is on a wide and liberal interpretation, but I don't see how anyone could argue that it should be a strict and narrow interpretation. One need only reflect on the case of Azapo vs The President of the Republic of South Africa. There the limitation is not seen from the language of the Act, it's seen only from the language of the protection and interests that the Commission should give to victims. In this particular instance there is no argument that the Act is disproportionate, as I understand it yet - I haven't gathered it from my learned colleague's cross-examination, or that the force or violence was inappropriate, or that there was no political context as opposed to political motive for

what was done. Certainly when it comes to Daniel's situation, there was a political context. These reports establish it without us going through it. And for those reasons, my submission Chairperson, is that the widest reasonable interpretation of the Act should be applied, which would favour an applicant such as a person in Daniel's position.

In conclusion, my argument is that in the case Michael Phasha, the requirements of the Act have been satisfied. The act was proportional, it was an act which constituted a crime committed during the struggle, for the purposes of the furtherance of the interests of the ANC, and there's not an iota of evidence before us that the ANC does not accept that it was done for the furtherances of its interests. It may well say it would have preferred not to, but it's not the test.

The subject of tests, flowing from (l) of Section 20(f), I think, of Section 20(2), I think it's plain that Michael Phasha certainly believed he had the authority to do what he was doing, even though it might not have been a rational logical belief. The hysteria of a crowd chanting freedom slogans and in high blood so as to eliminate a perceived enemy of its revolution, would endue such a belief.

In conclusion, in relation to Daniel Phasha I repeat the arguments, it would be absurd to interpret common purpose in such a way as to hold that there is no valid conviction and that while the applicant does not concede that he was guilty by way of common purpose, I believe that despite his objection to being associated, he should be associated with the crime ...(intervention)

CHAIRPERSON: Yes, as I've said, not because another tribunal has made a particular finding, but simply because in considering the application in the light of the requirements of this legislation that we are dealing with, that we are satisfied that there is sufficient to find that he had associated himself with culpable intent with the actions.

MR RICHARD: There is coherent evidence to that effect, I don't need to repeat what has been said.

CHAIRPERSON: Ja, but it would be wholly inappropriate for us to base that entirely upon what another tribunal had done, we have to apply our minds to what is before us, and as part of that exercise we take into account what might have happened elsewhere, in other proceedings, but at the end of the day it is still an exercise of your our minds on this particular application in the light of this legislation, and we have to be satisfied after having gone through that exercise, that what we have before us are acts which could be acceptable to amnesty.

MR RICHARD: Hence, Chairperson, my argument that the test is the application of mind to the requirements of a particular Act.

CHAIRPERSON: Yes.

MR RICHARD: Certainly there's the constitutional backdrop as to how decisions need to be made, but this particular Act certainly is not being argued to be held in conflict with the Constitution, and therefore the conclusion, without labouring the point, is that an open and liberal interpretation should be given to the particular circumstances and facts of the matter, which may produce an apparent inconsistency, which is indeed not ...(indistinct)

CHAIRPERSON: Yes no, no, I follow that argument. My point is simply aimed at the weight of the criminal finding, the weight of the finding of the criminal court that there was indeed common purpose. I'm saying that's just one of the factors that we take into account in doing this exercise that's before us. It's not the only factor.

MR RICHARD: No, I concede it. The fact that there was a criminal conviction in fact assists me ...

CHAIRPERSON: Yes, it's a factor that can.

MR RICHARD: If it was simply an application without a conviction, my job might be a lot more difficult.

CHAIRPERSON: Yes. Yes, no, I think we follow your submissions. Is there anything else that you wanted to say?

MR RICHARD: Nothing further, Chairperson.

CHAIRPERSON: Mr Mokoena.

MR MOKOENA: Chairperson, I don't have any submissions.

CHAIRPERSON: Thank you. Ms Mtanga.

MS MTANGA: Chairperson, I do not wish to oppose this application and therefore I will not make any submissions.

CHAIRPERSON: Thank you. Yes, I assume you don't have anything further.

MR RICHARD: Nothing further. Thank you, Chairperson.

CHAIRPERSON: Thank you very much.

Yes, we have concluded the evidence on the formal part of the applications, we will consider the matter, consider the evidence and the argument that was submitted on behalf of the applicants, the other material that is before us, and we will endeavour to prepare a decision in this matter as soon as the circumstances permit. So the decision would be reserved.

We thank you already in anticipation, Mr Richard, we know that you have some other work here as well still. Thank you thusfar, Mr Mokoena. Thank you for your assistance, Ms Mtanga. And for the members of the Correctional Services as well, for your assistance and your patience in waiting for us to at least finalise the matter. We appreciate that. We know that you've travelled over some distance to come here, and we are grateful for that.

We will, in the circumstances, have to adjourn the proceedings. I think we've at least achieved something. There is another matter that remains, but I assume we'll have to rearrange and try and deal with that with the rest of the matters that we have to do.

MS MTANGA: Yes, Chairperson, the matter of Mtsweni and four others was set down for today and because of the time it will have to be heard tomorrow morning.

CHAIRPERSON: Very well.

MR RICHARD: Chairperson, I believe the three further matters, there's a reasonable prospect of putting them into one day, and if it doesn't I can roll over to Friday, it depends on the Committee.

CHAIRPERSON: Yes, that's good news, that's a bit of good news. Yes, we'll do our best, but for now we will adjourn and we will reconvene at 9 o'clock tomorrow morning. We're adjourned.