ON RESUMPTION: 24TH MAY 2000 - DAY 3 SIBONGISENI PHILANI KHUMALO: (s.u.o.)

CHAIRPERSON: You were still cross-examining, weren't you?

MR HARKOO: Yes Mr Chairperson, thank you.

CHAIRPERSON: The applicant is still under his previous oath.

CROSS-EXAMINATION BY MR HARKOO: (cont)

Thank you Mr Chairperson. Just before we finished off yesterday, Chairperson, the issue was raised as to those persons who were in fact shot and those that were stabbed. It is so that there were two persons who were killed and those two persons that they killed, were in fact killed as a result of stab wounds and there were two others who were shot but they did not die. If I may proceed with my cross-examination?

We left off yesterday, Mr Khumalo, with the issue relating to the weapons that were used and my question to you was that it is true, isn't it, that you were dissatisfied with the fact that the firearm that was handed to you was in fact not working, is that correct?

MR KHUMALO: I am unable to respond to that because what I can tell you is that on that day nothing that pleased me. In fact the whole incident never pleased me at all. I had no intention of hurting anyone and also I had no intention of using the firearm.

MR HARKOO: Sorry, I didn't get that?

JUDGE POTGIETER: No, he says he wasn't necessarily unhappy about the fact that the firearm wasn't working, he says he was unhappy about this entire incident.

MR HARKOO: Thank you Chairperson.

CHAIRPERSON: And he went on to say that he had no intention of hurting anyone.

MR HARKOO: Okay. Mr Khumalo, you were aware of the fact that the other, that your colleagues did in fact possess a firearm that was working and they did possess a knife at the time of the incident, is that correct?

MR KHUMALO: Yes that is correct.

MR HARKOO: And you were obviously aware of the fact that that firearm on that night could be used, if necessary?

MR KHUMALO: When we left we didn't discuss about hurting anyone. We discussed only about taking the money and leaving the place. We didn't discuss that whoever had a knife is supposed to use it and whoever had a gun was supposed to use it.

MR HARKOO: Yes, but the fact that you were aware that they used this knife and the firearm and the purpose of which is that it may be used if necessary and that people could be killed or people could be hurt or injured. You had foreseen that, didn't you?

CHAIRPERSON: Are you now seeking to show that he was implicated in this and was responsible?

MR HARKOO: Yes Mr Chairperson, precisely.

MR KHUMALO: Since I was matured I thought about it and later when I was sentenced it was said that if you were together with murderers you are a murderer yourself even though you didn't use your hand to kill someone, but if you accompany people who are murderers you are.

MR HARKOO: Okay, I want to get now to the point of the proceeds of the monies that were taken. In your evidence earlier you've mentioned that you had given a sum of R300 to your in-laws and in your statement that you made to the TRC initially you've mentioned that you received R650 of which you were requested by your colleagues to give them back R150 - sorry, give them back R500 for the purchase of the motor vehicle. Were any of the proceeds that you received given back to them for the purpose of the motor vehicle?

MR KHUMALO: I have mentioned that the statement which I made in Westville should not be taken into consideration. I didn't take R500 and give it to my comrade to buy a car but I mentioned this because I wanted to find out from my comrades if they agree with me or with my statement because I didn't want to implicate them and what is on the statement it's not true, it's a lie.

MR HARKOO: So when you made that statement you say that those facts are not true but when you were asked yesterday morning to confirm the correctness of those statements, you did. So are you now saying that yesterday what you've said at the outset of your evidence was also a lie?

MR KHUMALO: I also explained this yesterday, I explained this to my lawyer about my Westville statement or the statement which I made whilst I was in Westville and also when my attorney asked me if I confirm what is in the bundle I did say yes but about the Reservoir Hills incident, it is not true.

MR HARKOO: Yes, the point I'm saying is that yesterday, at the outset of your evidence, you confirmed the correctness of your statement. So what I'm telling you is that yesterday what you told this commission was also not true?

JUDGE POTGIETER: No, no Mr Harkoo. The applicant has been trying to explain this since yesterday. When he started off his evidence and he was asked that generic question by Ms Mohammed about the correctness of the statements, he did confirm and then he went on and he started off with some explanation about the Reservoir Hills matter. So he did reserve, there was a reservation insofar as Reservoir Hills was concerned and that's what he is trying to explain. So if you want to put it to him, you've got to actually - to put it correctly, you've got to put it to him that he had confirmed everything but that he had made a reservation in respect of the Reservoir Hills matter and I think that's what he is trying to explain and you're going to go around in circles if you put it without qualification to him.

CHAIRPERSON: Now I know it is, my recollection is that he was asked to confirm these, he confirmed them and then immediately said he wanted to comment on the Reservoir Hills matter, he wanted to explain that the statement was made in 1996 and he - is now he wants to explain because he is trying to avoid the accused of not telling the truth as you are now doing because he had certain problems when he made that statement and he wanted to explain to us what those problems were and he then went on to tell them what the warder had told him and so he went on. Now my understanding of it was that from the very beginning what he was doing was he was confirming that he made that statement but he wanted to explain why he said what he did in that statement and he then proceeded to explain a great many things.

MR HARKOO: Thank you Mr Chairperson.

Just to get back on the issue as a whole, Mr Khumalo, you've confirmed yesterday when you were cross-examined that it was not the policy of any of the political organisations to become involved in criminal activity. You will agree with me then that this entire incident was in fact not politically motivated?

MR KHUMALO: I wouldn't be able to say yes or no. I need to explain this in order for you to get clarity because if we're talking about political activities and criminal activities these are two different things. As from the beginning when I got involved in politics, the comrades were not criminals or rather my leaders were not criminals. As from when I was active under the UDF and under the ANC, I've never heard of any of our leaders being involved in robbery. When I'm sitting here I'm trying to explain the facts as they were, I'm not here to tell you that this was a political activity but I'm trying to explain my life as a black person during that period and how I got involved in activities like this and I also explained in my statement what happened in my life in order for me to find myself in situations like this one and if one lived in Clermont in that period, one could easily understand what I'm talking about today.

MR HARKOO: Okay. I have no further questions, Chairperson, thank you.

CROSS-EXAMINATION BY MR PANDAY: Thank you Chairperson. May I proceed?

CHAIRPERSON: Certainly.

MR PANDAY: Mr Khumalo, when did you first join the UDF?

MR KHUMALO: I will firstly correct you. UDF is not an organisation which was joined by one individual person. UDF, to join it you will come as a group or as a political organisation and affiliate under UDF.

MR PANDAY: Okay fine. So is the Clermont Youth League, the group that joined the UDF?

MR KHUMALO: Yes it is so.

MR PANDAY: Right, now when did you become part of the Clermont Youth League?

MR KHUMALO: As from 1984 we were still a small group then of about 20 to 24.

MR PANDAY: Just answer my questions, don't go into the stories about the group. I just wanted to know in 1984 you joined the Clermont Youth League, is that correct?

MR KHUMALO: Yes.

MR PANDAY: And this youth league was affiliated to the UDF, right? Now what was your role in the youth league, were you a leader, were you a volunteer, were a secretary, what part did you play in the youth league?

MR KHUMALO: A supporter at that time.

MR PANDAY: So in your application when you mention that you were a volunteer, that would be a correct description of your role?

MR KHUMALO: Anyone who volunteers is someone who gets involved in something. I was doing that as from 1985 onwards.

MR PANDAY: Now did you ever become a leader of the Clermont Youth League?

MR KHUMALO: No.

MR PANDAY: Now why do you constantly refer to yourself as a leader?

MR KHUMALO: I was not referring to the be a leader in Clermont Youth League, I was saying my comrades sometimes used to perceive me as a leader because I used to be present in most of the activities of the comrades and I used to advise them sometimes as to not to get involved in things which will put them in troubles or put the organisation at large in problems. That is why I took myself as well or why I perceive myself as well as a leader because I used to talk to comrades.

MR PANDAY: Right, now who was the leader of the Clermont Youth League?

MR KHUMALO: At that time it was Bheki Luthuli, he was the president of the youth league.

MR PANDAY: Now is it correct that the leader would always issue instructions for any orders to be carried out?

MR KHUMALO: Not all the time but what they used to do they used to lecture us on the struggle as to what is the definition of the struggle and where we're coming from and where we are going, they used to lecture us and teach us all these things and they also used to teach us as to how we should see an enemy and how we should sympathise with the people who are like us, who are being oppressed like us and they used to tell us who the enemy was and who the comrade was, not that they were always issuing instructions.

MR PANDAY: Right, now when you had to go to the schools and educate the schools about the Clermont Youth League was that part of the education by the leader of the youth league?

MR KHUMALO: I wouldn't be able to comment on going to schools and teaching school children about politics because it was never said openly that during free periods in schools and also in buses and taxis and during our later time, if I may say, we used to talk about politics, not that we were teaching in schools.

MR PANDAY: Now Mr Khumalo, you mentioned about the Seniors, you specifically mentioned that the group went from school to school distinguishing between the Seniors and your group, the Clermont Youth League, was that not in your evidence?

MR KHUMALO: If I ma correct you there, we mustn't say a group, we must say myself and two other people who went to the schools.

MR PANDAY: Right.

MR KHUMALO: And the reason I decided to embark on this it's because of the oppression we experienced or the problems we experienced in schools.

MR PANDAY: Now Mr Khumalo, would it be correct to assume now from all your evidence that you embarked on everything by yourself? You always took a decision despite the fact that you had a leader?

MR KHUMALO: I'll clarify again there, in Clermont during that period I was somehow aware of the oppression and I couldn't just stand by and watch the situation because I could tell that many people were dying and were still going to die. Like I've explained before that the Tabega area did not have a leader from the Clermont Youth League and the comrades used to do things without having instructions, therefore myself and other comrades, we were perceived as people whom you can come and ask questions or direction as to what should comrade do. I would like maybe to explain to you about the Seniors, what happened.

MR PANDAY: No, no, we know about the Seniors. Let's accept what you say to us now that you would go and explain but eventually you had to go back to a leader and report that, is that not correct?

MR KHUMALO: No, not ...(intervention)

MR PANDAY: No need to explain, I just want to know that answer, yes or no. Right, I'm going to refer you to a bundle of documents. That's the long letter you wrote that starts on page 55 on your bundle and goes up to page 104. Now is it correct that this letter you wrote whilst you were in prison, if your attorney can help you and just direct you to the pages? The letter in Zulu. Is it correct that this letter that you wrote to the Truth Commission whilst you were in prison or as you are currently?

MR KHUMALO: Yes.

MR PANDAY: Right and is it correct that in this letter you attempt to give an account of your political activity throughout your life, is that also correct?

MR KHUMALO: Yes I tried.

MR PANDAY: Right you tried. Now is it also correct that you state that the only problem that you have with this letter insofar as the explanation to the incident that took place in Reservoir Hills?

MR KHUMALO: If the Truth Commission application forms had enough space for me to put everything, I would have done so.

MR PANDAY: But answer my question. Hold on Mr Khumalo, you're going astray. My question to you is actually very simple. In this letter you detail your political activity about your life. You mentioned in your evidence or am I correct in assuming in your evidence the only problem you have with this letter is the account of the events that took place in Reservoir Hills?

MR KHUMALO: I said my problem was, I couldn't tell the whole truth about the incident which occurred in Reservoir Hills but the rest it is as it is written.

MR PANDAY: Right, now let's just deal with the Reservoir Hills incident. Just shortly before I start my learned friend asked you about the Reservoir Hills incident and asked you if you were speaking a lie and you mentioned that you had to speak a lie not to implicate your colleagues, is that correct?

MR KHUMALO: I didn't want to put myself in a difficult position because since I was in prison together with my co-accused because I didn't want to implicate them because I didn't know what they can do to me since we were all in prison.

MR PANDAY: Yes, you didn't want to implicate him. Now why did you implicate Mnyandu in the Clermont incident? If you are afraid of your colleagues, why did you implicate Mnyandu in the Clermont incident?

CHAIRPERSON: Which?

MR PANDAY: Chairperson, in terms the - I think it's the affidavit put up by Mr Mnyandu where he is implicated in the Clermont incident and in the evidence led by the applicant insofar as the - I think it's the incident referring to Nzuza, the attack on Nzuza.

JUDGE POTGIETER: But what is the reference to the record?

CHAIRPERSON: Where and how does he implicate him?

MR PANDAY: Mr Chairperson, in his evidence-in-chief he leads the evidence as to the people that partook.

CHAIRPERSON: I thought you were questioning him about this long letter and you're saying that he - he's explained that he didn't want to - he had to speak a lie, he didn't want to implicate colleagues and you've now said well why did you implicate ...(intervention)

MR PANDAY: Yes we've established the point, Mr Chairperson, in the letter he states that upon the evidence on cross-examination by my learned friend he says that he did not want to implicate his colleagues out of fear of what will happen to him. Now the question stemming from that is that why implicate others?

JUDGE POTGIETER: No but you're talking about Mnyandu, we want you to refer us to this specific extract from this long letter where he implicated Mnyandu?

MR PANDAY: No, that's not pertaining to the letter, Mr Chairperson, we are deriving from the letter his version changed in his evidence-in-chief and the reason for his version having changed in his evidence-in-chief. As he put it, is that he does not want to implicate the co-accused.

JUDGE POTGIETER: Yes but you started off with this letter, with the long letter. You were debating this letter with the applicant and he was explaining that he didn't want to implicate his colleagues as you put it, in the letter and now I was expecting that you would follow up your proposition to him that he implicates Mnyandu to a reference in the ...(intervention)

MR PANDAY: Okay, I'll get - I'll lead to that, sorry.

JUDGE POTGIETER: Yes.

MR PANDAY: Now Mr Khumalo, you mention that ...(intervention)

CHAIRPERSON: Sorry, before you go on, you mention people in connection with the Reservoir Hills incident.

MR KHUMALO: Yes I did.

CHAIRPERSON: Maxwell?

MR KHUMALO: Yes.

CHAIRPERSON: Siphiso?

MR KHUMALO: Yes that is correct.

CHAIRPERSON: Were they in prison with you?

MR KHUMALO: Siphiso Dumisani Malunga had been sentenced at that time and Maxwell, they don't know his whereabouts up until this day.

CHAIRPERSON: So he was not in prison with you?

MR KHUMALO: No he wasn't.

CHAIRPERSON: Now I'm getting totally confused, were there other people who were there who you didn't mention who were in prison with you? Who else was at Reservoir Hills?

MR KHUMALO: I mentioned the people who were in prison. In fact people who had already been sentenced.

CHAIRPERSON: Who?

MR KHUMALO: Siphiso Kwela and Dumisani Malunga.

CHAIRPERSON: There was no one involved who was in prison with you? You see I'm asking you this because as I understand you, said that your problem was you couldn't tell the whole truth about Reservoir Hills incident because you didn't want to implicate your colleagues because you were in prison at the time and you didn't know what they would do to you. Isn't that what you said? I'm now asking you which colleagues were these?

MR KHUMALO: I will clarify this Mr Chairperson. I wasn't scared of Dumisani Malunga or Siphiso Kwela because if I were in a secret cell where one is locked alone I would have written the whole truth because I would not have been fearful of them because I was going to tell them the truth but when I filled in the forms and when I wrote this letter to the Truth Commission we were together with many people from different places and when I was faced to write about the Reservoir Hills incident, as I've already mentioned that there were times where I couldn't go to the court because there was a boycott in Westville Prison and there were prisoners who suggested that if I were to write the whole truth about the Reservoir Hills incident I wouldn't know what will happen to me and also I was advised that I cannot be certain if these people who were taken statements from me were being sent by boers and also I was told that if I were to be sentenced again and meet my co-accused in prison I wouldn't know what will happen to me in prison because I didn't know at the time whether they had denied knowledge of this case or not.

CHAIRPERSON: Carry on.

MR PANDAY: Now Mr Khumalo, was there anybody else that you were afraid of except for your co-accused in the Reservoir Hills incident?

MR KHUMALO: I wouldn't be able to say I was scared of someone but also I had to be careful to protect myself. I took the suggestion which was given to me by other people who were with me in the cells. I saw it or I perceived this as something which can conflict with what my co-accused had already said in court because I didn't know what they had said. That is why I wrote such a statement.

CHAIRPERSON: You said something also as I understood it about these people in the cell saying they didn't know whether the person who was taking the statement had been sent by the boers? Did you say that a few minutes ago?

MR KHUMALO: At that time when the statement was taken there was a boycott and when I received the forms I was together with other inmates and they advised me to write this thing careful because they said to me if I were to tell the truth and the whole truth, I will have a problem when I meet Dumisani and them, or my co-accused in prison because I didn't know at the time what they had said. Therefore, they said to me I must write something that would not implicate them that much. If I were to implicate them I would be implicating by just mentioning their name maybe.

CHAIRPERSON: What were you saying about someone sent by the boers? And you said at the time a statement was taken, what statement?

CHAIRPERSON: I thought we were talking about a letter that you had written, not that someone had been sent to get it?

MR KHUMALO: No one came to take a statement from me. I received forms and together with the P21 forms and the person who brought these forms told me I should fill in those forms and if the forms didn't provide enough space for me to write into details he gave me other forms or papers to write on them and another inmate told me that this person was a fraud as probably the boers, they want me to write things and they said this person who came here and gave me the forms probably had been sent by the boers to come and suck this information from me. This is what the inmates told me and they said if I were to tell the whole truth I may be sentenced in absentia and there would be no need for me to appear in court.

CHAIRPERSON: But why not just fill the forms in then. If you were feared that this was a fraud, that the boers were getting you, why write this long letter at all? Why not just fill in the forms?

MR KHUMALO: I had already started writing the incidents and I couldn't just stop in the middle. I had to continue writing the incidents, all of them. I had already mentioned other incidents and I couldn't just leave the Reservoir Hills incident and I was scared that if I were to omit the Reservoir Hills incident I would be told that I cannot testify about it and my aim was to apply for amnesty for all incidents.

CHAIRPERSON: And when you came to fill in the amnesty forms just after that did you mention the Reservoir Hills incident?

MR KHUMALO: We need to open page 2 and 9(a) onwards. I mentioned murder of Vusi Maduna, Sam Nsondse, assault Dlamini, Vuna Dlamini and there was not enough space, that is why I provided this incident on another piece of paper because the form didn't have enough space. That is why I had to write the letter and explain about the incidents which I took part in. If there was enough space I would have written Reservoir Hills incident and assault of the police from Kwatabega Police Station. That is why I had to put it in a letter which I sent to the Truth Commission.

CHAIRPERSON: Very well.

MR PANDAY: Now Mr Khumalo, the letter that you started on page 55 is dated the 27 May 1996, is that correct?

MR KHUMALO: That is correct.

MR PANDAY: Right, now the form that you filled in from page 8 to page 17, you can see that?

MR KHUMALO: Yes I do.

MR PANDAY: Was commissioned on the 3 June 1996?

MR KHUMALO: On the 3 June 1996.

MR PANDAY: Now was this letter sent with this form?

MR KHUMALO: I think so because if you look at the original letter of this letter it's not the original one because the original one was photocopied and the original one was given back to me and only the copy which was sent and an application form from TRC was sent and I didn't have a copy of it and the statements which I've written was photocopied and the original one was given back to me.

MR PANDAY: Okay, let's accept that for a moment. Now page 35 to page 54 is the translation of the letter we referred to from page 55, right? Now I'm going to mention certain incidents, I want you either to confirm it by yes or no, right? You've already confirmed that you participated in the Clermont Youth League. Is it correct that in 1986 the Security Police arrested you?

MR KHUMALO: Yes that is correct.

MR PANDAY: Is it also correct that on the 13 April 1987 you were arrested again by the Security Police?

MR KHUMALO: Yes that is correct.

MR PANDAY: Right. Is it also correct that you were tortured for almost five hours?

MR KHUMALO: Yes that is correct.

MR PANDAY: Is it also correct in this letter you mentioned your step-father was informing the police about activities taking place in the area?

MR KHUMALO: Yes that is correct.

MR PANDAY: Is it also correct that the police wanted information about Umkhonto weSizwe?

MR KHUMALO: Yes that is correct.

MR PANDAY: Right, now we go onto page 38. Is it also correct that in 1985/86 businesses were being burnt down?

MR KHUMALO: Yes.

MR PANDAY: Is it also correct that your life in Clermont was deteriorating, was going from bad to worse after certain incidents having taken place in your life?

MR KHUMALO: Yes that is correct.

MR PANDAY: Now do you recall you stating on page 40 ...(intervention)

ADV SANDI: Sorry Mr Panday, just for my own benefit? Just help me here, what is the benefit of all these questions? Are you taking him through his whole history?

MR PANDAY: I'm actually going to build up to a point that was raised by my learned friend, Mr Harkoo, insofar as the accused's residence in the area. I will be there shortly if you'll just allow me?

JUDGE POTGIETER: Yes wouldn't it help to do it the other way round, don't you just want to put it to him and if his answer doesn't accord with what you've got you can put all that to him?

MR PANDAY: Okay. Now ...(intervention)

ADV SANDI: By the way, just to confirm one thing here, I understand you represent in terms of victims Nzuza, Maduna, Dlamini, Dukhi and so on?

MR PANDAY: Yes.

ADV SANDI: Would it not perhaps be better if you try and confine your questions to the interests of those victims?

MR PANDAY: Well it is actually being confined to the interests of the victims, Mr Chairperson, but one needs to verify the applicant's version as his versions seem to vary from time to time insofar his papers. Now once one has established a clear direction insofar as his version, one can then proceed to the relevant issues. Thank you.

Now Mr Khumalo, is it not also correct that you had to leave Clermont as a result of your life going from bad to worse?

MR KHUMALO: Yes that is correct.

MR PANDAY: Right, now is it also correct that in August 1988 you were returning to Clermont to visit your fiancee because your child was sick?

MR KHUMALO: You're now referring to the Reservoir Hills statement?

MR PANDAY: No, no, I'm not referring to the Reservoir Hills. On page 42 the fourth paragraph you state the following:

MR KHUMALO: From August it is where I started to, or relate the Reservoir Hills incident. In August 1988, from there it's the statement about the Reservoir Hills incident. That is why I started like that because I wanted to talk about myself being in Zwelibanzi's car.

MR PANDAY: Now is it not correct that on the day the Reservoir Hills Hotel was robbed you were actually on the same day returning from Clermont to kwaMashu?

MR KHUMALO: No.

MR PANDAY: So what you say on page 42 is a lie?

MR KHUMALO: It is what I've already explained as something which is not true.

MR PANDAY: Now why did you have to lie about something like that, you weren't implicating anyone there? You just merely went to see your child who was sick? You snuck in to see your wife? Why lie about that, what's the need to lie?

MR KHUMALO: It was just an introduction because I had to lie about the incident of myself being in Zwelibanzi's car therefore this was just an introduction, a small lie and I was going to the bigger lie.

MR PANDAY: Now Mr Khumalo, you spoke a bigger lie because my learned friend had asked you have you ever lived out of Clermont and you said no in your evidence when he cross-examined you. You denied leaving Clermont but now in your evidence when I cross-examine you, you said yes, you had to leave Clermont because your life was deteriorating. Was that a lie as well?

MR KHUMALO: Yesterday I did try and explain that whenever a situation was really bad in the township I used to run away to go and stay where my father's family was, at Mzinyati. I also explained that when I was out of Clermont I did write a letter to Sibusiso who was a student in UDW to explain to him about my situation and also explained that I also wanted to write a letter to Happy because at that time I was not at Clermont.

MR PANDAY: Now Mr Khumalo, the place you talk about, Mzinyati, where is Mzinyati? Now what area is it, in kwaMashu or Clermont?

MR KHUMALO: Inanda area.

MR PANDAY: Now on page 42 you make specific reference to a house number K673 in kwaMashu. Did you live there? Or is that a lie?

MR KHUMALO: House number K673 is the house which I was arrested in when I was in kwaMashu. I wrote this statement in 1996. I mentioned this house because I used to go to that house and stay in that house because there were two comrades who were staying there who were from Clermont and they were dancers and comrades as well.

MR PANDAY: Now Mr Khumalo, what do you mean when things got bad in Clermont you left Clermont. What do you mean by that?

MR KHUMALO: In my statement it is written there that for instance SPs came to the house which I was staying in Clermont and they searched that house and broke things there. In situations like that I used to run away to Mzinyati or Zwelivumvu because I was running away from SPs sometimes. That's what I mean when I say when things got bad.

MR PANDAY: Okay. Now Mr Khumalo, you mention in your evidence-in-chief that you may have been swayed by the mention of Umkhonto weSizwe when the robbery was committed at Reservoir Hills, is that correct?

MR KHUMALO: I don't think I quite follow your question?

MR PANDAY: When the robbery was committed at Reservoir Hills Hotel you make mention that you may have been swayed because of the mention of Umkhonto weSizwe, that is why you continued with this robbery, is that correct? Joining Umkhonto weSizwe?

MR KHUMALO: Yes we talked about that before the robbery, we talked about after we acquired the money we were going to leave this land of oppression then go and join Umkhonto weSizwe.

MR PANDAY: Now I don't know if this is a lie but I'm going to ask you this, on page 43 you mention:

Right? When you talked about joining MK but you couldn't bring yourself to joining MK because you loved your children and mother. Now is that a lie or is that the truth?

MR KHUMALO: I will not give you a yes or no response but I will just explain shortly. I love my children dearly, they are the most important thing to me but I loved the struggle, I was committed to the struggle more than the life itself. Before this incident at Reservoir Hills I had attempted to leave the country. However, for the reason that my children were young and their mother was also very young and not in a situation to support them, I felt it would be improper for me, particularly in the eyes of my in-laws to leave her alone with such young children. That is why when I wrote the statement I had in mind that because had I left the country then perhaps they would not even know me. For instance in 1991 my children was calling me uncle and did not recognise me as their father.

MR PANDAY: So Mr Khumalo, that is why I'm going to put to you that the motive behind robbing Reservoir Hills was purely for money, not for any political achievement. By virtue of your own version now your family never had money and that the reason for robbing this hotel was purely for financial gain and which in fact you did gain on your own version?

MR KHUMALO: I will reiterate what I said yesterday. My mother tried whatever she could to help me in my situation. That is when I impregnated that girl because in our culture the parent of a young man who has done so has that responsibility to do so. The reason why it did not happen that were in my situation was because of Mr Skekana. If I had intentions of robbing for money I would have done so earlier in 1984 or prior to then. By 1988 I would possibly be a very rich man or perhaps a seasoned criminal but however by that time I was still a committed comrade and my mother-in-law assisted me in raising the children. I also obtained money from the temporary jobs that I did here and there in 1985 and onwards.

MR PANDAY: Now Mr Khumalo, Vusi Maduna, is it correct that you took part in the murder of him?

CHAIRPERSON: When you come to a convenient stage, we'll take the adjournment?

MR PANDAY: Yes, we'll take the adjournment now, thank you Mr Chairperson.

CHAIRPERSON: Very well, we'll take a short adjournment now.

JUDGE POTGIETER: Mr Khumalo, you're still under oath, do you understand?

SIBONGISENI PHILANI KHUMALO: (s.u.o.)

CROSS-EXAMINATION BY MR PANDAY: (cont)

May I proceed? Thank you.

Mr Khumalo, can you recall your evidence on Vusi Maduna as to why he was killed?

MR KHUMALO: Yes I do.

MR PANDAY: Is it correct that according to your evidence he was a police informer and that is the reason for having killed him?

MR KHUMALO: From what I heard and saw that was so.

MR PANDAY: Yes, well is it correct also that you heard from the Hammarsdale Youth League, according to your evidence, that he was involved in activities of police informer?

MR KHUMALO: Yes we heard from comrades from Hammarsdale as well as another comrade from Tuzuma whose name was Chris Ntotle.

MR PANDAY: Right, now what were the names of the comrades from Hammarsdale?

MR KHUMALO: I have forgotten some of them and some are deceased. I cannot precisely recall the names because of the long time that has elapsed. Perhaps I can recall one or two. People like Nglangla as well as Gangi and Skoloza. Those were the people who were in hiding at our area, Clermont.

MR PANDAY: Now these people who were in hiding in Clermont, now how often did you meet the people that you've mentioned?

MR KHUMALO: When the comrades from Hammarsdale came from Clermont they hid in different parts of the township but we were aware of precisely they were hiding because when they came we had to be aware just how many they were and where they were so that we could organise things like food as well as ensure their protection, also ensure that they do not go out and commit whatever crime in the township.

MR PANDAY: Now do you recall the year that they had come to hide in Clermont?

MR KHUMALO: There were many of them in 1987.

MR PANDAY: Now the activities of Vusi Maduna were relating, according to your evidence, of issues that took place in Hammarsdale, is that correct?

MR KHUMALO: That is correct.

MR PANDAY: Now wouldn't it have been more appropriate for the Hammarsdale Youth League to discipline him as opposed to you?

MR KHUMALO: I would say the comradeship was like a network. If you commit a crime perhaps in kwaMashu then you could be disciplined in Johannesburg, therefore it was not just the responsibility of comrades from Hammarsdale only to assault Vusi because whatever activities he committed did not pertain just to the comrades from Hammarsdale because every person who was involved in the struggle did not do it for his own area but for the entire South Africa.

MR PANDAY: Now the comrades from Hammarsdale that gave you information, did they not go to your leader of the Clermont Youth League and explain to him the problem with Vusi Maduna?

MR KHUMALO: It is difficult for us to discuss this matter today because we will not all be aware of a situation then. It was not easy for the leaders in Clermont to discuss such matters from leaders from Hammarsdale. Here I'm referring to people like Happy, Bheki Luthuli and Bongani Sibusiso. Those people were educated and respected in the community and therefore were not in a position to discuss matters relating to the killing or disciplining of some people in public. It was up to comrades like myself who carried out that task and also for the fact that everything happened quickly, it was organised quickly.

MR PANDAY: Now is it correct to assume that you were taking decisions entirely by yourself?

MR KHUMALO: We must be aware of the situation or of the context of what you are saying. If we talk about making a decision we're referring to a decision to for instance go look for somebody or a decision to go kill someone. For minor decisions like going to fetch food for other comrades or organising comrades' transport, yes I could do that but when we refer to the killing of a person, perhaps if you yourself were an informer it would not have been a matter that we would have sat down and discusses, it would have been something that would have been realised by anybody and they would have taken it into their hands to kill you and burn you.

MR PANDAY: Well the point exactly. If this informer was in Hammarsdale, he could have been killed a long time ago? He didn't need to die in Clermont?

MR KHUMALO: There is a proverb to the effect that death is around you everywhere and it does not announce itself. Vusi was unfortunate that he arrived at a time when the comrades were very agitated from the incidents that had happened in kwaMashu and it was less than two days after he arrived in Clermont when he approached me and pulled me aside. At that time we were about 60 and coming from Durban and then on our way we met him and he wanted to call me aside because he was looking for other members of the Executive Committee. It was on this day and it was National Detainee's Day and at that time we had an ANC flag. He called me aside and said he was looking for other comrades and as I cast my eye around him I saw a gun, a 9 mm and at that time I decided I was not going to attend to him and I went into Mr Zazu's shop. So that even on Saturday, when he arrived, it was to the effect that there had already been discussions held about him, there were many things said about Vusi because prior to the Saturday, comrades who were in SRC's such as myself had held a meeting. At that meeting it was decided that he would be killed for his activities. I heard a lot of things about him from people like Chris Mtuli who were involved, who were activists in the struggle. That was where we heard about his activities where he was involved in disrupting the launching of the UDF in 1983. At that launch it is alleged that he colluded with a certain white man. He was taking photographs of all the representatives who were at that launch as if he was just taking them for exhibitions but it transpired later that he had shown those photographs to the police. That information I passed on to other up until the day that he was killed.

MR PANDAY: Mr Khumalo, for how long did you know that Vusi was an informer as you say he was? Was it one month, two months, three months, one year, two years, three years?

MR KHUMALO: I'll say it was perhaps about two months because what I knew about him was from comrades from his area. I will just mention one incident. On a certain day we went to attend a funeral in Hammarsdale. Five executive members of Hyco who had been elected a week before, all of those people were killed in a shocking manner and they were killed by the IFP. On their death we received information to the effect that Mashu, who was a treasurer as well as Stembiso who was the president, were killed in a similar fashion. From what we heard, Stembiso had been wearing a hat with a coca cola inscription on it. Vusi was alleged to have mentioned in a meeting that Stembiso was dressed in such a manner. When they all left the meeting gunfire was heard and it was alleged that it was Vusi who had described the way Stembiso was dressed to the attackers and apparently that hat that Stembiso had been wearing was not his, he had gotten it from somebody else.

MR PANDAY: Now Mr Khumalo, before killing Vusi on the day in question, had you ever met him before that? It's a straightforward question, Mr Khumalo, please don't go into a long answer. My question to you is simple. On the day that Vusi got killed, had you ever met him before that? It's either a yes or no answer. There is no need for explanation.

MR KHUMALO: Yes I did.

MR PANDAY: Right, when was that?

MR KHUMALO: At a funeral in Hammarsdale.

MR PANDAY: Now do you know what was Vusi's role in the Hammarsdale Youth League?

MR KHUMALO: From what I heard he had been the chairperson.

MR PANDAY: He had been the chairperson?

MR KHUMALO: Yes.

MR PANDAY: Do you know that prior to him becoming the chairperson he was a teacher?

MR KHUMALO: No, I do not know that.

MR PANDAY: Did you know that throughout his political career he was constantly educating the people in Hammarsdale about policies of the ANC and liberation or the UDF?

MR KHUMALO: No, such information did not reach me.

MR PANDAY: Right, do you know the brother of Vusi Maduna, Musankosi Maduna?

MR KHUMALO: No.

MR PANDAY: You see because he is present here today and if need be he will testify one, his brother was the leader of the Hammarsdale Youth League and he was not an informer as you put it and he says inasmuch as they want to forgive you, what you stated today is purely a lie and suggested that the reason for killing Vusi was everything but political. Can you comment on that version of the brother's?

MR KHUMALO: Sir, myself and other comrades were not found guilty of that offence in court. When this amnesty process was launched by the Archbishop Tutu and others, it touched me and it was out of that emotion that I sought amnesty and I wanted for other people to know what we were about and also for the fact that for me to be here and tell my side of the story it will also enable me to get opinions and other information from others about who he was. Therefore I am not in a position, I would not dispute what that brother says about Vusi. I know that I have been against the police all my life even though my father was a Security Branch member and that was the reason why some other comrades believed that I was also a part of that network. Maybe the same applied to Vusi, maybe some people felt that he was on the other side and that led to his death. Thank you.

MR PANDAY: But Mr Khumalo, you knew that Vusi was the Chairman. Did you think he needed to have been afforded the duty to establish his allegations? You didn't even attempt to establish the truthfulness of these allegations.

MR KHUMALO: Sir, the situation was very bad at that time and we were in a situation where we were not able to tolerate such instances or such situations in which Vusi was alleged to be involved. Perhaps now we could analyse such matters but at that time it was very unlikely that we would have sat down and discussed the matter with him after certain many allegations that were made about him about people from his own area.

CHAIRPERSON: But people were making the same sort of allegations about you, weren't they? That you were an informer, that you were co-operating with the police?

MR KHUMALO: I do not quite follow the Chairperson's question?

CHAIRPERSON: You have told us time and again that people thought you might have been an informer, that your father was a policeman, they thought you might be working with them?

MR KHUMALO: Yes.

CHAIRPERSON: You knew that was wrong?

MR KHUMALO: Yes that happened after I was released from prison and that was after Vusi Maduna's death. Prior to my imprisonment I was not suspected of being an informer and even prior to that even my father had been an ordinary policeman and he was not involved in the Security Branch activities.

CHAIRPERSON: But didn't you think, apart from discussing it with Vusi himself you could have gone an discussed it with some other leaders of the UDF?

MR KHUMALO: Chairperson, it did not occur to me that such a matter would be discussed constructively. If you had been pointed out as an informer and you were alleged to have been involved in the death and arrest of many people, it was unlikely and it was difficult to sit down and discuss the matter about him because he was also not killed immediately after being captured, we questioned him about the allegations that we had known about him but the comrades were very agitated at that time and there were many other allegations that were made which I cannot really detail before this Committee but the fact of everything was that it was very difficult to sit down and discuss his matter constructively.

CHAIRPERSON: But as I understand it, you and some other comrades did sit down on the Saturday morning and decided you were going to kill him?

MR KHUMALO: No, it was not necessarily a meeting, it did not happen on the Saturday. It was on a Friday.

CHAIRPERSON: Some comrades, including you, decided that he should be killed. That's what you told us? What I said to you is, prior to the Saturday, "the comrades, including myself, decided he should be killed."?

MR KHUMALO: Chairperson, after the meeting that we held as SRC members, we went on our way home and I was with Chris discussing other matters and that is how Vusi Maduna's name came up, that he had been responsible for the attack on us by the police at a funeral and also for the reason that he had been looking for comrades at Clermont and prior to that, prior to our attack we suffered at the funeral, Vusi confiscated a walkie-talkie that I was using when I tried to warn comrades about the police who were present at a certain gathering and I was trying to warn them that the police were awaiting them. When I arrived I found Vusi in the presence of a white man and he told me to give them the walkie-talkie so that he could communicate with the comrades in other buses. I did this because I saw a certain lady who was in his company that we used to work with. But it emerged later when we were at Stembiso's home that he had used the walkie-talkie to call the police because as we were there a Casspir arrived and a white policeman called him aside and told him to get into the Casspir and he told Vusi that he should inform us to disperse. He did as he was told and after saying that, we asked as a group of comrades what does he have to say about that and immediately thereafter we were assaulted by the police and we did not see him suffering the same assaults. That was one of the factors that led us to believe or to disbelieve that he was indeed a comrade. I thank you Chairperson.

MR PANDAY: Now Mr Khumalo, you make it seem as a situation that was there was very tense, is that correct?

MR KHUMALO: Yes that is correct.

MR PANDAY: And the slightest bit of information you received about an informer would have to be dealt with as quick as possible, is that correct? It's just a yes or no answer, Mr Khumalo, please don't go into a ...(intervention)

MR KHUMALO: The situations would differ, if you want a yes or no answer it is going to be very difficult.

MR PANDAY: Let me re-ask you the question. Did you consider Vusi a great threat to the comrades?

MR KHUMALO: Yes we did perceive him so.

MR PANDAY: Now wouldn't there have been in the interest of the comrades to deal with Vusi as quick as possible?

MR KHUMALO: Perhaps the comrades who had remained in Hammarsdale could have discussed the matter but those who were with us in hiding wanted him dead.

MR PANDAY: So my question to you is that you would have had to deal with him as quickly as possible. As soon as you got the information you should have dealt with him as quick as possible, is that correct?

MR KHUMALO: With regards to that I cannot respond but all I can say is it differed from situation to situation because there were people who were alleged to be informers then but who managed to flee and evade the comrades.

MR PANDAY: The question is simple. Now please listen and don't go into long stories. The question is simple. You admit that Vusi was a problem, that is quite clear, we all know that. The situation we're dealing with is Vusi's situation. You say Vusi was an informer. He was causing you all to be hit, he was causing people to be killed. Now my question to you is simple, should Vusi have been dealt with as quick as possible to save the comrades, yes or no?

MR KHUMALO: Such matters or something like that could have been dealt with by the leaders and perhaps they could have come and informed us about what decision had been taken as was the norm then because you will remember that the UDF sought to recruit more people into the organisation then therefore there was no need for making ourselves unnecessary enemies but Vusi's matter was so bad that it was difficult to sit and discuss about it. Some people may not have known that he was an informer but the foot soldiers from Hammarsdale were the people who had that information.

MR PANDAY: Yes, the situation was so bad but yet you took over two months to kill him. Wasn't two months a long time to kill Vusi?

MR KHUMALO: I do not really follow what you mean?

MR PANDAY: What I'm putting to you is that over two months you knew that Vusi was a threat to the comrades but you took that much time in deciding to kill him and yet you portray the situation to be absolutely tense?

MR KHUMALO: Sir, Vusi did not reside at Clermont, he resided at Hammarsdale and it was him who left Hammarsdale for whatever reasons and came to Clermont and that is how he came upon comrades who were on their way to a funeral of other comrades who had been killed by Mr Tshabalala and he was also alleged to have been involved in the death of those comrades, that is how he came to be killed, because of his arrival in Clermont. It was not us who went hunting him down perhaps in Hammarsdale.

MR PANDAY: So why did you not go and hunt him down when you heard he was an informer?

MR KHUMALO: The task of the comrades at that time, the primary task was to transfer power into the hands of the people but if an informer had been identified and his activities had been identified, it was appropriate for the organisation to deal with him. We will remember that the UDF was led by persons of integrity who were respectful people. However, the people on the ground were quite different therefore you could not convince all of them that so and so was not an informer if he had been alleged to be so unless perhaps a formal meeting was held and all comrades were informed. I would say that Vusi was unfortunate to arrive in Clermont because people then knew of these allegations even if he had gone to kwaMashu or Chesterville, he may still have been killed because comrades from there had also been informed.

MR PANDAY: Now Mr Khumalo, do you recall when you were asked a question as to you being an informer, you mentioned to the Chairperson that once you were released for the murder of Vusi you were no longer regarded as an informer, is that correct? That is correct, you're sure about that? So now in the eyes of the UDF you were the liberation man, you were not considered as an informer, you are quite clear on that?

MR KHUMALO: In the eyes of the UDF and other leaders in the CYM I was not regarded as a problem but the problem arose from comrades who were with me at Westville because whilst we were in detention we were heavily assaulted and therefore sometimes people would admit and confess to crimes that they did not commit. Some people would even go to a point of being broken by the police and would inform all their comrades and this happened to all comrades who had been detained. The police will turn one comrade against the others so that you who had been broken will be seen as an informer and this happened to Comrade Happy as well that he was alleged to have turned against his former comrades.

MR PANDAY: Now Mr Khumalo, the co-accused in the Reservoir Hills incident, they were not arrested with you previously it was the first time you were all arrested, is that correct? When you committed the robbery in Reservoir Hills, that was the first time that the four comrades and you spent in jail, is that correct?

MR KHUMALO: Maxwell had been with me in detention. Siphiso had been detained in 1985 after Mrs ...(indistinct) memorial service but he was not in the same cell with me but I do know that I was with Mtoyoge in detention, where with regards to the others like Dumisani who had never been together before.

MR PANDAY: So with regards to Maxwell and Siphiso, they knew you well, they knew that you were not an informer?

MR KHUMALO: I am not able to speak on their behalf because had I known that fact clearly that they are aware that I am not an informer because I knew of comrades who believed in me, people like Comrade Madala, such that although these were my comrades from the struggle, it was difficult to accept whatever they told me as the truth. That is why it was important for me to look at whatever they were telling me with a critical eye and try to decide what they were telling me, if it was the truth or if it was a trap or something else.

MR PANDAY: Now is it correct that you did not need to prove at that stage of your life that you were not an informer for the SP, is that correct? To anyone?

MR KHUMALO: If the struggle had ended or if our liberation had been attained, yes I could have tried to prove or disprove allegations that I was not an informer but at that time I was still committed to the struggle and I continued doing whatever was called upon me by the struggle. However, there were situations where I realised that I should perhaps intervene and try to calm the situation but I perhaps thought that that may be a trap set for me so I would not intervene. But the death or the killing of another person has never been something that I was enthusiastic about because had that been the case I would not have taken the time to come before this Committee and talk about those matters.

ADV SANDI: Sorry Mr Panday, can I just come in here?

But Mr Khumalo, according to your long statement starting from page 36 to page 38, you did in fact become an informer at some stage, not so?

MR KHUMALO: No, it is not exactly like that. If you read that statement you will understand that after I was released in prison I was in situation where I was forced to go and see these boers or these white police because the situation was bad at home.

ADV SANDI: Yes sorry, before you give a long winded story, let me summarise what you appear to say there? On persuasion by Cleophas Sikakani who was a member of the Security Police, you agreed to work for the police and you would give them information from time to time and they would pay you R20, R30 sometimes. But at some stage you disappeared. Would you be a correct summary of what you say? Is that what happened? You were in fact an informer at some stage? You were recruited?

MR KHUMALO: Chairperson, maybe if you really take a look on my statement, I knew their weak points and I knew there are methods and I actually realised that Government was using dumb people like Kools Coetzee and I will swear even today that no one was ever arrested or pointed by me to these people. I was just doing this because I needed to monitor Nongululeko's situation because she was sick and also I had to be next to my grandmother and my mother and to take care of other things at home. That is why I pretended to them, I used their weak points. Even though Skekana persuaded me and sometimes tells me to attend to their meetings I had to see them because I had been warned by them and also they had made me to sign other forms and they threatened to expose me to the comrades so that comrades would kill me. Therefore I would say I was never an informer because if I was an informer I would have informed on other comrades because I had more information on other comrades including myself. I also heard explosions and also I knew for the fact that Vusi had explosives as well.

ADV SANDI: Did you not get money from the police? Were you not receiving money from the Security Police? Just say yes or no.

MR KHUMALO: Yes, R20 or R30 I'm not quite sure.

ADV SANDI: Did you not give information to the Security Police, yes or no?

MR KHUMALO: No, I never gave them information that will implicate any person, no.

ADV SANDI: You gave them false information?

MR KHUMALO: Yes I gave them useless information because I had already learnt that their methods or their modus operandi and I knew that this was money which belongs to taxpayers.

ADV SANDI: Were you prepared to do anything to impress your comrades to allay their suspicions that you were an informer?

MR KHUMALO: After I had stayed at home and doing nothing, not working and not schooling, I tried my best to attend each and every meeting and comrade's funerals, I did my best to get involved up until 1987 when I was detained. That is why I also mentioned an incident where I attended a funeral and police were injured and that funeral, it helped me because even other comrades who were suspecting me, they turned and they started believing me and started believing that I was not an informer since my stepfather was an SP because in that funeral I participated from the beginning until the end. I did explain in my statement about the firearm which belonged to the police. I took the firearm. If I was an informer I would have taken the firearm and implicated other comrades but I didn't do that. I hid that gun.

ADV SANDI: Just explain one thing. When Vusi was killed were you already giving what you referred to in your statement as useless information to the police? Were you doing that already, giving this useless information to the police and receiving monies for that when Vusi was killed?

MR KHUMALO: No, it was before.

ADV SANDI: Now when you say in your statement at page 39:

At page 39, that would be the third paragraph from the bottom line 3 of that paragraph. You're not referring to the Vusi incident, are you?

MR KHUMALO: No, I'm not referring to the Vusi incident.

ADV SANDI: Thank you, Mr Panday.

MR PANDAY: Now Mr Khumalo, isn't it correct in December 1987 when you were returning from the funeral when you attacked the policeman and took away his firearm, is that correct?

MR KHUMALO: Yes that is correct.

MR PANDAY: And isn't it so that at that stage in your life you needed to restore you confidence or the confidence of others in you, of your other comrades? Is that correct, Mr Khumalo?

MR KHUMALO: Yes.

MR PANDAY: And isn't it a matter of fact by that time you'd actually restored your character, you state that in the third paragraph from the bottom:

Is that not so?

MR KHUMALO: I had restored the confidence of the comrades and me in the funeral of Khetla and also I got involved in the preparation of his funeral. Therefore the incident where the police was assaulted occurred during that time and I took the firearm from the police and I told the comrades that this firearm does not belong to people who can use it for whatever purpose but we do have comrades in Clermont who are not protected since they had killed other comrades, Mr Kuzwayo and Mr Mthembu. That is why I took the firearm.

MR PANDAY: Right thank you. Now my point that I'm going to make, Mr Khumalo, pertaining to the Reservoir Hills incident, you did not need to restore your character, your character was already restored amongst the comrades, immensely. Why commit this robbery? You've mentioned in your evidence-in-chief that you had to go along with this idea so the people can confirm your character and see that you're not an informer but by then your character was restored?

MR KHUMALO: It was said that other comrades believed in me. At that time I was working intensely underground. Among us comrades there was that lack of trust that if someone were to be arrested that person might divulge information about comrades and also sometimes we were acquiring firearms simply because we wanted to protect other comrades. At that time when this happened, when we attended the funeral, it was comrade from Kwatabega but other comrades from Clermont, I still needed to restore confidence in them. That is why I had to be careful in simply denying what was put to me or what I was asked to do. There were many things which we got involved in them without the leaders knowing about them. It was not easy for me to trust everyone. I needed to trust some people and not the rest.

MR PANDAY: Mr Khumalo, is it not correct that any community looked upon a leadership to guide them insofar as the political awareness and knowledge? Is that not the case?

MR KHUMALO: Maybe the communities today in this new South Africa, not at that time.

MR PANDAY: So how were the communities then ever made aware of any political awareness or for any organisation? How were they made aware of it?

MR KHUMALO: You see the reason I said no it's because it might happen that you are referring to leaders which were put in their position by the apartheid regime, therefore the community was careful in what to listen and who to listen to.

MR PANDAY: Now Mr Khumalo, one more thing with regards to Vusi Maduna, why was Cleophas never executed or murdered? He was working with the police and you could have murdered him anytime? Why did you choose not to murder him?

MR KHUMALO: I will tell you a few things about Cleophas. He was married to my mother, he got married to my mother when I was a kid. I think I started knowing him from 1975 up until we arrived in Kwatabega location in 1977. He was a policeman up until when he joined the Security Branch. There were times when I was growing up I would steal his firearm and he was responsible for my upbringing and he was a breadwinner. I had to think for my mother as well because I never wanted to do anything that will make my parents disappointed at me and comrades wanted to kill Cleophas because he was an SP but I personally never wanted to kill him for that reason alone.

ADV SANDI: According to your statement isn't this the same person, Cleophas Sikakani, who was - he appears to be in your statement, he appears to be very much involved in forcing you to agree to work for the police? At some stage you say he takes you to a braai, you have a braaivleis with the Security Police, you have drinks together and they persuade you to go to Lusaka and you agree that you will go to Lusaka to inform on comrades there but you know that you're not going to do it. Is that the same person? He's very much involved in forcing you to agree to all these things which you don't want to agree to?

MR KHUMALO: Yes, he was the one who was doing that, who was forcing me to do what the white men wanted us to do up until I was told that Rachel Indwandwe who was pregnant at the time was going to be killed and at that time I believed that they were not telling a lie because I had suffered in their hands as well and I was in a position where I couldn't agree or disagree and also together with comrades we had discussed about these things in the cells and we agreed with other comrades in the cells that sometimes when they torture you, you must just give them useless information, information that they cannot use to trace other comrades in order to just save yourself from the torture for a while and after six tires were put on me and petrol was poured all over my body, it came to a point where I agreed that I will work for them even though I know I wasn't. I used to go at home in front of Sikakani and I will have a firearm and he would do nothing about it and in January 1987, I am not quite sure, or 1988 - probably I'm making a mistake because it's written 1987, I went with Sikakani to Mr Coetzee and he asked me about the situation and I told him that I had tried to restore the trust of the comrades and I was not lying to him because that's what I had done and we left I think by three or two cars. We went to a certain park near Morningside, I'm not sure, but I think it's closer to Morningside. The SPs took meat and we had a braai. As I was there with them I was disappointed to realise that the black police were serving the white policemen and even the braai, they're not braaing in one fire, they're braaing separate and pictures of comrades were shown to me and I was told that these comrades had skipped the country. They showed me McBride's fiancee and David Webster's photograph and they also told me that they were looking for McBride and I was surprised because I knew at that time that McBride had been sentenced to death but I didn't say anything to them, I just agreed with them that I will work for them knowing very well that I wasn't.

ADV SANDI: Did you confide to anyone that you had agreed to work for the Security Police? Someone in confidence, say one of the leaders or one of the comrades?

MR KHUMALO: If I had an intention of working for them I think I would have.

ADV SANDI: Sorry, Mr Khumalo, I must ask you to say yes or no.

MR KHUMALO: No, no one.

ADV SANDI: Thank you. Thank you Mr Panday.

MR PANDAY: Now Mr Khumalo, dealing with Mr Dlamini that was assaulted, now when you first started your evidence-in-chief you distinctly made note of the fact that the organisation did not engage in activities of personal enrichment and gain, is that correct?

MR KHUMALO: No, I don't remember.

MR PANDAY: Well I'm going to put it to you in your evidence-in-chief you did state that the organisation does not believe in engaging in activities of personal enrichment and gain. Did your organisation believe that you must enrich yourself via the life of crime? It's a yes or no answer Mr Khumalo. Was the organisation's policies that one can resort to crime to enrich themselves for personal gain? Answer yes or no.

MR KHUMALO: No, the organisation never believed in that and I would like to know in which incident are you talking about.

MR PANDAY: Yes I'm going to get to that point. Now when you were discussing Dlamini, you went on to say that you went to collect your money for the dagga you sold him. Now is that not personal enrichment for an act of crime?

MR KHUMALO: As a comrade, if I go and work in a white man's garden and get paid, that's a personal benefit because of what I've done. Buno was using dagga, that is why I gave him the dagga to sell it or to smoke it. That's not political, it has nothing to do with the organisation.

MR PANDAY: On that day in question as well you went to collect the money for the dagga you had given him?

ADV SANDI: Sorry Mr Panday, just for my own benefit, hasn't he made a concession of that, he says it's not political and by implication he is not seeking amnesty for that?

MR PANDAY: Well I'm going on to the next, Mr Chairperson, just a follow up.

JUDGE POTGIETER: Yes and you don't need to repeat his evidence.

MR PANDAY: Okay.

JUDGE POTGIETER: He said he went to fetch the money, take it from there because otherwise instead of eliciting an answer yes, I said it in my evidence-in-chief, it will take twenty minutes to regurgitate the entire evidence and we've had too much of that. So please try, if you visualise your questioning, please try and bear in mind that we want to get done with this case.

MR PANDAY: Mr Khumalo, isn't it also correct that on the day in question your landlady informed you of acts of crime that were being committed and you went to clarify your personal position with Dlamini?

MR KHUMALO: I would like you to repeat your question and please make it short so that I understand it very well?

MR PANDAY: Right, Mr Khumalo, in your evidence-in-chief you stated that your landlady had given you information stating that you were being implicated in crime and it is for that reason you went to clear your name with Dlamini and question him about the goods that were stolen. Is that not correct?

MR KHUMALO: Even though she was not my landlady it is like that, I was told that - she told me that her bag had been stolen.

MR PANDAY: And people were unnecessarily suspecting you?

MR KHUMALO: Not just me alone and it wasn't just a bag, it was also furniture from a neighbour.

MR PANDAY: We know that Mr Khumalo and my point or my question to you is that the only reason you went to Dlamini was for personal reason, to clear your name, is that correct?

MR KHUMALO: Yes, correct.

MR PANDAY: Thank you. Now finally with Mr Nzuza, you mentioned that on the day in question when he was assaulted and killed you had - you personally did not inflict any injury to him, is that correct?

MR KHUMALO: When I got there he had already died therefore I didn't put my hand.

MR PANDAY: And more importantly on that day in question you were not looking for Nzuza, is that correct?

MR KHUMALO: Yes that is correct.

MR PANDAY: Now if you were not looking for Nzuza, how did it come to be that Nzuza was killed?

MR KHUMALO: As I've already testified that anyone who would have appeared at that time who was on the list or a bad list of the comrades, if he had appeared there he would have been killed. Unfortunately for Mr Nzuza, he appeared and he was on a bad list of the comrades, that is why he was killed.

MR PANDAY: Thank you. Nothing further Mr Chairperson.

CHAIRPERSON: There's been a suggestion about the time we should adjourn for lunch. I have no problems with it except that we do not want to have the same sort of shambles as yesterday and that is that the caterer had prepared the meal for one o'clock, had to take it away and then reheat it for us to eat at 1.30 and I understand the arrangement is that it would be ready at one o'clock today. I don't know if there's any contrary information, that's the last I heard?

MS THABETHE: If that's the case, Chairperson, maybe we should speak to one of them?

CHAIRPERSON: I think if we have told her one o'clock we should - one of the reasons why I think she was told one o'clock is that we told the counsel appearing in the next matter that she must be here by 1.30. We were a little bit optimistic. Have you any questions?

CROSS-EXAMINATION BY MS THABETHE: I'll try and be finished by one, Chairperson.

Mr Khumalo, with regard to the assault on Buno Dlamini and Sipho Mbatha, I understand the reasons that you've put forward that the reasons for assaulting them was that they stole goods from Mr Kulu. But my question to you is by attacking them, what did you wish to achieve?

MR KHUMALO: We wanted to prove a point politically, we wanted the community to know that politics doesn't allow rape, stealing and other things and also the fact that we viewed the police station in the area negatively because they were involved in assaulting comrades and not involved in arresting criminals. That is why we took the law in our hands.

MS THABETHE: I understand that with regard to comrades but did this policy apply also in relation to people who were criminals and not comrades? This policy of taking the law into your own hands?

MR KHUMALO: Anyone who was involved in criminal activities regardless of whether that person is a comrade or not.

MS THABETHE: Okay. With regard to Nzuza, you've indicated that he was perceived to be an informer even though he was an ANC comrade. My question to you is how did you reach that conclusion that he was an informer or he was working with the Security Police? What made you to reach that conclusion?

JUDGE POTGIETER: Ms Thabethe, do you want him to repeat his entire evidence how this person went around pointing out people with a balaclava, do you want to hear all of that? Don't you want to be more specific? Because that's what you're going to get.

MS THABETHE: Okay, I'll leave this question then, Mr Chair, thank you.

Now I want us to come to the Reservoir Hills incident. I understand the reasons that you've given for lying in your letter to the Truth Commission, the long letter dated 27 May 1996 that you did not want to implicate your inmates. But now my question to you is why didn't you tell one version of the story of how the robbery took place, why did you need to give one different version in your letter and another version in your affidavit at page 105?

MR KHUMALO: If I had been in a cell alone I would have written one story which was the truth but since I was among other inmates, that is why I wrote various version.

MS THABETHE: Maybe you don't understand my question. I understand your reasons that you gave, you did not want to implicate the people, your inmates, when you wrote this statement, I understand that, but more specifically, what I'm interested in, why didn't you stick to one version then conceal their names? Why did you need to give two versions, a different one in your letter and another version? Maybe to make it easier for you, let me just go through a few.

In your letter you said that - that's on page 42 of the bundle, you explained that you were from Clermont to see the mother of your children and then towards the evening when you went to this taxi you saw Roy Mashlala and that's you got into his taxi because you were looking for a lift. In your evidence yesterday you indicated clearly that you went around collecting all these people before you went to the robbery or to commit the robbery. My question to you is why did you need to give those two different versions. Why didn't you just give the correct version, it wouldn't have implicated your inmates in any way?

MR KHUMALO: I did explain that everything which is written from where it's written from August 1988.

MS THABETHE: I understand that and you've given the reasons why you lied, right? Now my question to you is the reasons that you've given, I don't see what bearing they have to the version to the different versions that you've given. Let me make another example. You say in your letter on page 43, when you heard the gunshot, right, you said to yourself there comes more trouble then you quietly left the spot at which you had been keeping watch. You went towards - you were looking for the taxi, the taxi driver because you did not know what was happening and on page 107, you say when you heard the gunshots you quickly went inside the shop, right? Those are different versions. Again, let me give you another example. Yesterday you said the money that you got that was stolen from the shop was R1 000 and you used that for your personal gain. In your letter on page 43 you say you received R600 of which R500 was taken to buy a car. My question to you is, why the different versions? How does that impact on your objective of concealing the names of your inmates? Do you understand my question?

MR KHUMALO: From page 42 to 43 I was relating to the Reservoir Hills incident and I did explain from the beginning that everything which is there is not true.

MS THABETHE: Mr Chair, can you come to my assistance? I don't whether the applicant understands my question. Can I ask for your assistance to clarify maybe? The question I'm trying to find out, I understand is ...(intervention)

CHAIRPERSON: The question is why did you tell a different version about the money in your letter? Why was it necessary to put a false version into your letter about the amount of money and what happened to it?

MR KHUMALO: I will explain again. As from where the statement says in August 1988, the statement is false. I had mentioned that yesterday. The reason I put all this here, it is because I didn't want to tell the truth because I was scared after I was told that maybe the boers needed more information, but there's only one truth and that truth is that I didn't run away after I heard the gunfire. What happened is that I got inside the shop and I took money. Here I wrote like this because I didn't want to get into trouble.

MS THABETHE: I want to put it to you, Mr Khumalo, that the reasons that you forwarded for lying in your letter, that you wanted to protect your inmates, you did not want to implicate them and that you wanted to mislead the boers at that time, is not true and I want to put it to you, Mr Khumalo, that you've given two different versions for no apparent reason. I understand you were lying in your letter but I want to put it to you that you lied in your letter then to the Truth Commission and you are creating an impression that you are lying now because you can't forward reasons why you need to give two versions?

MR KHUMALO: I don't know what else I should say because I've already mentioned that I came here to tell the truth and also I've mentioned to the Committee that they should disregard this statement relating to this incident. I am doing my best to tell the truth as I remember it from the bottom of my heart. I heard that ...(intervention)

MS THABETHE: Thank you, I don't want you to repeat what you've already said, let's move on. I heard what you said. Do you remember when you were asked about your real father, whether he owned taxis and you said no? Do you remember that yesterday when you denied the fact that your father owned a taxi, when you said he worked in the scrap yard?

MR KHUMALO: I would like you to remember what exactly I've said is the dates, what I said is that at the time I was being questioned about ...(intervention)

MS THABETHE: Did you remember saying that he did not own a taxi? Do you remember that question?

MR KHUMALO: Yes I do remember saying so. He does have cars which he used as taxis. He used to buy cars and repair them.

MS THABETHE: I'm confused now, you're saying he repaired cars that he used as taxis which means he did have taxis, is that what you're saying now? Yes or no, did he have taxis, did he have cars which he used as taxis which means that did he have taxis? It's the same thing or didn't he own any taxis?

MR KHUMALO: Yes he used to have cars like that, cars which he used as taxis and I also explained that ...(intervention)

MS THABETHE: Yesterday you said he didn't have but you've clarified the issue, it's fine, I'm satisfied with your answer. Thank you, Mr Chair, I'll raise the rest in argument.

CHAIRPERSON: Right, well we'll take the adjournment now until one thirty five? Right.

MS MOHAMMED: Thank you, Mr Chairperson, I have no further re-examination for Mr Khumalo and with leave of the Committee I'm calling the next applicant, Mr Mnyandu.

JUDGE POTGIETER: Is he here? Yes.

CHAIRPERSON: Mr Mnyandu are you Zolo Kushle Madala Mnyandu?

ZOLO KUSHLE MADALA MNYANDU: (sworn states)

EXAMINATION BY MS MOHAMMED: Thank you Mr Chairperson.

Mr Mnyandu, I'm showing you an application, an application form which was filled in. The form is in English and you have signed this form. I wish to confirm that prior to you signing this form it was interpreted to you in Zulu. You confirmed the correctness and thereafter you signed the form?

MR MNYANDU: Yes that is correct.

MS MOHAMMED: Thank you. On the second page in paragraph 9(a) lists the incidents for which you are applying for amnesty and it reads as follows.

CHAIRPERSON: Have you got a spare copy of that form? It was one of the original bunch?

MS MOHAMMED: No. Thank you Mr Chairperson.

Mr Mnyandu, on page two of this application in paragraph 9(a)i, it lists the offences for which you are applying for amnesty. They read as follows:

Do you confirm that?

MR MNYANDU: Yes I do.

MS MOHAMMED: But for the purposes of this hearing it has been agreed that your testimony will be confined specifically to the murder of Mr Vusi Maduna and the murder of Mr Simi Nzuza.

MR MNYANDU: Yes.

MS MOHAMMED: Thank you. Can you tell the Committee what sentence you are presently serving at Westville Prison?

MR MNYANDU: I'm serving a 23 year prison term.

MS MOHAMMED: What is this for?

MR MNYANDU: It's for the murder of Mr Mapamolo as well as two counts of escaping from custody as well as possession of a firearm.

MS MOHAMMED: Thank you. Is it correct to say, Mr Mnyandu, that in the early 1980's you were a member of the UDF and more specifically the Clermont Youth League?

MR MNYANDU: That is correct.

MS MOHAMMED: I'm going to take you now to the incident of the killing of Mr Simi Nzuza. Now on the day that he was killed, you were walking on King's Road in Clermont, is that correct?

MR MNYANDU: That is correct.

MS MOHAMMED: Now while you were walking on that road, - sorry let me rephrase that. Why were you walking on that road?

MR MNYANDU: I had left home for school, Sitengile Junior Secondary School. I had prior knowledge that on that day there was not going to be any learning at school but there was a campaign that was to be launched against Seniors who were harassing us at Clermont at the time. So I was on my way to school along King's Road when I cast my eye across at section KK and saw some students. I remember pupils from two schools, one goes to Sukuzili Junior Secondary School as well as pupils from Temkele Junior Secondary School. As they were going down a footpath leading to Sitengile, the pupils from Sitengile School were also on their way out so that they were three schools assembled there all together, that is Sitengile, Sukuzili and Temkele Schools. I then stood at the corner near Mr Tubazani's home waiting for all those students who were proceeding towards the road.

MS MOHAMMED: So was it your intention to then join the students?

MR MNYANDU: Yes it was my intention to join the students because I did have that knowledge that on that specific day we would be on a campaign looking for this Seniors men.

MS MOHAMMED: Were you armed at the time?

MR MNYANDU: Yes I was.

MS MOHAMMED: What weapon were you carrying?

MR MNYANDU: I had a knife, an Okapi knife.

MS MOHAMMED: Okay, now can you tell us what happened thereafter?

Sorry, Mr Chairperson, if I may at this stage - the applicant is presently wearing dark shaded glasses. It's my understanding that he sustained an injury to his eye years ago and he is more comfortable if that is kept covered. Thank you.

Thank you Mr Mnyandu, you can proceed?

MR MNYANDU: As I was still waiting for the comrades the pupils from Zipatele school had also seen these students approaching.

MS MOHAMMED: Now Mr Mnyandu, sorry, I understand at some stage the students did gather and at some stage you saw Simi Nzuza?

MR MNYANDU: Yes.

MS MOHAMMED: Maybe we can take it from there, from the point when you saw him?

MR MNYANDU: As we were all assembled there I saw Spomba Gumede and Philani Khumalo as well as Ndo Maraba. I heard Comrade Philani saying "Comrades, here is Simi, should we leave him?" and we all turned around and at that time Simi recognised us too and he started running away and he was pursued by the students and myself included, he fled right across the road towards some shacks that we had below that area. He tried to hide there and there were many of us pursuing him. We tried to persuade him to come out and I threatened him that if he doesn't come out we were going to burn down that shack. On hearing that, he came out. I did not see whether he escaped through a window or a door but he just started running towards some house and he was pursued and surrounded by the comrades and on my arrival there at that spot people were already stabbing him. I also took out my knife and participated in the stabbing.

MS MOHAMMED: Why did you stab Simi?

MR MNYANDU: I stabbed Simi for the reason that he worked with the police, in other words he was an informer.

MS MOHAMMED: Thank you. I'm now going to take you to the incident of the killing of Vusi Maduna. Can you recall that incident?

MR MNYANDU: Yes I do.

MS MOHAMMED: Now on that particular day were you in Clermont?

MR MNYANDU: Yes I was.

MS MOHAMMED: Can you tell us at what point you saw Vusi Maduna?

MR MNYANDU: I saw him on a Saturday morning at the bus rank in front of Mr Zaza's shop.

MS MOHAMMED: Okay and what was he doing there, do you know?

MR MNYANDU: I was standing across my home on 21st Avenue road. I was on a bicycle. On that day the comrades were preparing to go and attend a funeral, I think at kwaMashu and that funeral was for comrades who had been killed by the IFP. I was not going to attend that funeral because I had other commitments. As I was still standing there I saw a commotion from across and I therefore rode on my bicycle and proceeded towards the rank.

MS MOHAMMED: So where was this commotion taking place?

MR MNYANDU: It took place at the rank near Zaza's shop. I was standing near my home which was just across. I therefore went to check what was going on there and discovered that it was a group of comrades involved there and on enquiry, I learnt that Vusi Maduna who had been involved in selling out comrades to the police who was being assaulted. I therefore then decided to also take part in that attack.

MS MOHAMMED: Okay, now where was Vusi at this time when you reached the rank and you realised that all of this was happening. Where was Vusi?

MR MNYANDU: I found him in a bus.

MS MOHAMMED: And what did you do thereafter?

MR MNYANDU: On arrival I and Spomba Gumede broke the back window of the bus and entered from there and we went to him from behind and hit him on the head and pushed him towards the bus steps. As he fell Spomba Gumede assaulted him with a bush knife. Philani was standing at the steps and he also assaulted him. After that I could not see what was going on. There was a commotion because at that time Vusi was lying down. I instructed one comrade by the name of Jabu to go look for petrol. She did this and returned with the petrol which I poured over him and set him alight.

MS MOHAMMED: Now why did you assault Vusi Maduna like this. What was your reason for doing this?

MR MNYANDU: The motive for doing that was because on our arrival in Hammarsdale we were attacked by police. On that day we were attending a funeral for certain comrades and the police came and instructed us to disperse in five minutes.

MS MOHAMMED: So how was this police attack on you linked to Vusi Maduna, Mr Mnyandu?

MR MNYANDU: On of those policemen called Vusi and said he should tell his friends to disperse in five minutes. At that time Vusi stood on top of the Casspir and said "Comrades, these boers say you must disperse now". I and other comrades were shocked as to how our comrade can afford to do something like that, to be given a loudspeaker by a boer and inform us to disperse. After that the policemen assaulted us and some of our comrades were arrested. On enquiring about this comrade we were informed that even regarding the death of these comrades whose funeral we were going to attend, he was implicated in their deaths as an informer.

MS MOHAMMED: Thank you. Mr Chairperson, I have no further questions.

MR HARKOO: Thank you, I have no questions, Chairperson

CROSS-EXAMINATION BY MR PANDAY: I'm just going to be very brief.

Mr Mnyandu, did the comrades every communicate with the leadership of the youth league. I mean yourself, Mr Khumalo and all other comrades that were involved in the incidents of Nzuza and Mnyandu?

MR MNYANDU: Please repeat that question?

MR PANDAY: Okay, when dealing with Mnyandu and Nzuza, the killing of the two, did you ever communicate your actions with the leadership of the youth league?

MR MNYANDU: No, we did not discuss with them.

MR PANDAY: And who was the leader of your youth league?

MR MNYANDU: It was Bheki Luthuli.

MR PANDAY: Now wouldn't it be practise that the leader should issue orders of this nature?

MR MNYANDU: From what we had heard of Vusi Maduna and because of the way we felt about it, there was no time to discuss it further. We took the decision that he should be attacked and killed. No one issued any specific instruction that he should be killed.

MR PANDAY: For how long did you know that he was an informer?

MR MNYANDU: I heard when we were returning from the funeral at Hammarsdale, that is when comrades from his area told us that he was an informer.

MR PANDAY: And was that the reason he was killed?

MR MNYANDU: No, he was not killed on that day.

MR PANDAY: And for any reason why the comrades from Hammarsdale did not kill him?

MR MNYANDU: The comrades I'm referring to were not close to him because they were in hiding at Clermont, who had fled their homes because of the IFP there.

MR PANDAY: Now did you know that Mr Maduna was the leader of the Hammarsdale Youth League?

MR MNYANDU: No, I did not know that he was the chairperson, I just knew that he was a comrade.

MR PANDAY: Now did you know that he should educate and promote the principles of the UDF and the ANC in Hammarsdale?

MR MNYANDU: No, I did not know that, I knew him as a comrade from Hammarsdale.

MR PANDAY: On that day that he was killed, did you know the reason why you were going to kill him?

MR MNYANDU: The reason that I can state is that he sold us out at Hammarsdale. Secondly, he is the one person, he used to come into Clermont and influence people to return to Hammarsdale and on their return they would be murdered and we would later learn that Vusi had been responsible for convincing that person to return to Hammarsdale.

MR PANDAY: And do you know of any of these people that were convinced to return to Hammarsdale, do you know their names?

MR MNYANDU: I can recall the name of Samson.

MR PANDAY: Do you know anyone now?

MR MNYANDU: Could you please repeat the question?

MR PANDAY: Do you know any names now?

MR MNYANDU: Are you referring to people who were murdered?

MR PANDAY: Yes, the Hammarsdale people that fled.

MR MNYANDU: The people who had fled Hammarsdale for Clermont?

MR PANDAY: Yes.

MR MNYANDU: It was Skoloza Shlahla, Mosi Hhlope and Skangi.

MR PANDAY: And where are these people now?

MR MNYANDU: I do not know their whereabouts.

MR PANDAY: Mr Mnyandu, Mr Maduna's brother is present and he will testify if need be that all that is being said by you and Mr Khumalo is a lie insofar as him being an informer. Would you dispute that?

MR MNYANDU: No, what I know is what I heard from comrades from Hammarsdale was that Vusi was a sell out and an informer. That is what I know.

MR PANDAY: Thank you. Thank you Mr Chairperson.

CROSS-EXAMINATION BY MS THABETHE: Thank you Mr Chairperson.

With regard to Mr Maduna, did you know him personally?

MR MNYANDU: I did not know Mr Maduna. I first knew him on that day I attended the funeral of comrades at Hammarsdale, that's where I first saw him.

MS THABETHE: Now isn't it possible that as a chairperson of the ANC in Hammarsdale, that's the reason why the police called him to tell his comrades to disperse? Isn't that possible?

MR MNYANDU: I would not know about that because even at Clermont, if something for instance took place or we were assembled, I do not remember any of our leaders, people like Bheki Luthuli being called by the police to tell us to disperse.

MS THABETHE: It's common cause, we've heard from other hearings ...(intervention)

INTERPRETER: Would the Evidence Leader please wait for the interpretation?

MS THABETHE: Okay.

JUDGE POTGIETER: You don't have a headset on so you can't hear, you're speaking directly to the witness.

MS THABETHE: Sorry.

JUDGE POTGIETER: Yes. Can the interpreter just repeat that? It was halfway through when you started talking, Ms Thabethe.

INTERPRETER: Yes, I was requesting Ms Thabethe to wait for the interpretation to be completed.

MS THABETHE: I'm indebted to you.

JUDGE POTGIETER: Yes, you were saying that even in Clermont he doesn't know of any of the leaders.

INTERPRETER: Yes alright, okay. The applicant said that even in Clermont when they had meetings or when they had events he does not remember any police requesting their leaders, people like Bheki Luthuli or Happy to call upon them to disperse.

MS THABETHE: My next question is, isn't it common cause, Mr Mnyandu, that if there were toyi-toyiing or marches the police would call a person that they know is a comrade to tell the others to disperse or sometimes what they would do they would use a loudspeaker and tell the people to disperse? Didn't that sometimes occur?

MR MNYANDU: I had never witnessed that in Clermont.

CHAIRPERSON: But had you never witnessed the police telling people to disperse?

MR MNYANDU: The police would tell people to disperse.

MS THABETHE: But you'd never encountered a situation where they call one of the people especially if they know the leader to say tell your people to disperse, you've never seen such a situation?

MR MNYANDU: I had never witnessed it in our marches or whenever we held activities

ADV SANDI: Don't you think it would be a matter of common sense on the part of the police to talk to a person they've identified as a leader of the group that look, tell your people to disperse otherwise we're going to take action against them. Isn't that common sense?

MR MNYANDU: I do not know about that, I did not believe that a white person would call a comrade amongst us to tell his people to disperse.

ADV SANDI: By telling you as a crowd that the police were saying you must now disperse, how was he betraying the struggle simply by conveying the message of the police to you as a crowd that they say you must now disperse? How was he selling out?

MR MNYANDU: It was the manner in which he handled himself because when other comrades were telling him that they would not do that, he was seen to be selling out because he was being delegated by the police to tell us to disperse.

MS THABETHE: Why I'm asking you this, Mr Mnyandu, it's because as you say, you didn't know Mr Maduna, you had never met him before this incident, you were going to a funeral and we've heard evidence from the lawyer of the victims that Mr Maduna was - besides the fact that he was the chairperson in the area, he used to conduct education, he used to educate people about the ANC, he was quite involved in the area, he would have been well known in other words. Hence probably why he was also well known to the police. Do you want to comment?

MR MNYANDU: As I mentioned before, I saw him there for the first time. I did not know that he was involved in educating people about the UDF and such. What I heard was that he was an informer.

MS THABETHE: And yet of course you ordered that petrol be brought and you've testified that you've actually conducted the burning of him, isn't it?

CHAIRPERSON: He's told us that, hasn't he?

MS THABETHE: Yes.

MR MNYANDU: Yes, because I was of the belief that anyone who colluded with the police or the IFP should be burnt.

MS THABETHE: With regard to Simi Nzuza, there's a statement that you wrote to the TRC. It's from Mr Mazibuko or rather under enquiries it's written Mr Mazibuko, the front page is application for amnesty Madala Mnyandu, there is a letter there that you wrote to the TRC as an amnesty application. On page 3 of the translation you've indicated that the second paragraph, the fifth line, that the Philani announced his decision that sell out must be killed.

He doesn't have it. Don't you have it? Sorry Mr Chairperson, it looks like Ms Mohammed doesn't have a copy.

MS MOHAMMED: I don't have the translation - I've only got ...(intervention)

MS THABETHE: It's at the back, you should have a translation.

MS MOHAMMED: All that I've got is the Zulu version.

MR PANDAY: We've given her the translation, now we can move on.

MS THABETHE: I just wanted to clarify whether you are suggesting that a decision was made by Philani that Simi Nzuza be killed. Do you maintain that?

MR PANDAY: Yes.

MS THABETHE: And when was this decision made? Was it before the march that led to him being killed that day?

MR MNYANDU: It was made when we saw Simi approaching in the company of soldiers.

MS THABETHE: Sorry, Mr Mnyandu, I just wanted you to answer, exactly when before he was actually killed was this decision made. Was it two days before he was killed, a week before he was killed?

MR MNYANDU: It was taken on the 13th June.

MS THABETHE: Which year?

MR MNYANDU: 1986.

MS THABETHE: So would it be correct to say from June 1986 there was a decision that was made that he should be killed but in actual fact it was effected in January 1987?

MR MNYANDU: That is correct.

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

MS MOHAMMED: I have no re-examination, Mr Chairperson.

ADV SANDI: The Hammarsdale comrades, did they tell you how long they had known or suspected that Vusi was an informer?

MR MNYANDU: No, I did not receive an explanation with regards to that.

ADV SANDI: Did they tell you if they wanted to do anything about the matter of Vusi being an informer?

MR MNYANDU: Yes.

ADV SANDI: What did they say?

MR MNYANDU: They wanted him to be killed.

ADV SANDI: Did they tell you why they had not killed him?

MR MNYANDU: Those comrades from Hammarsdale were in Clermont and they were just airing their opinions that he should be killed and unfortunately he came to Clermont voluntarily and found comrades assembled there for a funeral that was to take place in kwaMashu. That is how we came across those comrades and that is how he came to be killed.

ADV SANDI: Are you saying that they simply intended to kill him but they were not asking you to kill him?

MR MNYANDU: I do not quite follow?

ADV SANDI: Did they say you must kill him?

MR MNYANDU: They did not request us to kill him but it was us together with the comrades from Hammarsdale who killed him.

ADV SANDI: Did they tell you whether their leaders had any view on the matter, what did their leaders say, the UDF leaders from Hammarsdale, what did they say about this thing of Vusi being allegedly an informer?

MR MNYANDU: I did not hear anything about the leaders from Hammarsdale. It was only what I heard from the foot soldiers, the comrades on the ground who were complaining about Vusi.

ADV SANDI: Thank you. Thank you Mr Chairperson.

CHAIRPERSON: Thank you.

CROSS-EXAMINATION BY MR PANDAY: Just one question, Mr Chairperson, stemming from - Mr Mnyandu, you testified that on the day Mr Maduna was approached, you were at your house and you had your personal business to attend to, is that correct?

MR MNYANDU: Please repeat that question?

MR PANDAY: You testified that ...(intervention)

JUDGE POTGIETER: Yes, he said there was going to be a funeral at kwaMashu ...(intervention)

MR PANDAY: And you were not going to attend the funeral.

JUDGE POTGIETER: He was standing on his bicycle, opposite the house where he was living, he didn't intend to go to the funeral when he saw some or other commotion near the bus rank at Zaza's shop.

MR PANDAY: Now, Mr Mnyandu, my question to you is that is it correct that on that day you yourself had no orders to participate in any sort of disciplinary measure on Vusi Maduna?

MR MNYANDU: It was something I had not expected on that day.

MR PANDAY: Okay thank you, that's fine.

______________________________________________________JABULANI WISEMAN MZIMELA: (sworn states)

EXAMINATION BY MS MOHAMMED: Thank you Mr Chairperson.

Mr Mzimela, I'm showing you a copy of your amnesty application which you signed earlier this morning. This application is in fact in English but it was interpreted to you in Zulu. You confirmed the correctness of the contents and you then signed the form, is that correct?

MS MOHAMMED: Now on page 2 of the application ...(intervention)

CHAIRPERSON: ...(inaudible)

MS MOHAMMED: Thank you Mr Chairperson.

Now Mr Mzimela, on page 2 of this application, paragraph 9(a)i, lists the acts for which you are applying for amnesty. It reads as follows:

Now for the purposes of this application, your testimony will be confined to the murder of Vusi Maduna, is that correct?

MR MZIMELA: That is correct.

MS MOHAMMED: Thank you, now I'm going to take you to the day on which Vusi Maduna was killed. Now on that day in question you were in Clermont, isn't that so?

MR MZIMELA: That is correct.

MS MOHAMMED: And on that morning you were at the bus stop as you were making arrangements to join your fellow comrades to attend a funeral?

MR MZIMELA: That is correct.

MS MOHAMMED: And at some stage you saw Mr Vusi Maduna?

MR MZIMELA: Yes.

MS MOHAMMED: Can you tell the Committee what happened when you saw Mr Maduna?

MR MZIMELA: When he approached the rank we were together with Hammarsdale comrades because we were going to attend a funeral to kwaMashu where comrades had been killed. Vusi came and other Hammarsdale comrades went to him and started talking to him. I didn't know as to what they were talking about, therefore I went closer in order to hear what they were talking about and I heard them saying to us "this is the Vusi Maduna we've been telling you about, that he is a police informer" and we said "oh" and they started assaulted him.

MS MOHAMMED: Who assaulted Mr Maduna?

MR MZIMELA: I don't remember the first one, it was a mob.

MS MOHAMMED: Okay but did you assault Mr Maduna?

MR MZIMELA: Yes I did.

MS MOHAMMED: What exactly did you do to him?

MR MZIMELA: I stabbed him twice.

MS MOHAMMED: Now we've heard testimony from the previous applicant that at some stage Mr Maduna had gotten onto a bus?

Now when you stabbed him did you stab him before he got onto the bus or after that?

MR MZIMELA: After he'd got out of the bus.

MS MOHAMMED: Okay, just to confirm, isn't it correct that in the 1980's you were a member of the UDF and more especially a member of the Clermont Youth League?

MR MZIMELA: That is correct.

MS MOHAMMED: And can you tell the Committee what you are presently serving a sentence in Westville for?

MR MZIMELA: Murder of Mr Mapumulo and murder of Mr Makatini.

MS MOHAMMED: And how many sentence are you serving?

MR MZIMELA: 16 years.

MS MOHAMMED: Thank you Mr Chairperson, I have nothing further for this applicant.

MR HARKOO: I have no questions, Mr Chairperson, thank you.

CROSS-EXAMINATION BY MR PANDAY: Mr Mzimela, how many comrades from Hammarsdale were you with on the day Vusi Maduna was murdered?

MR MZIMELA: I wouldn't be able to say the number because it was quite a big number.

MR PANDAY: Do you know any of the names of them that were present?

MR MZIMELA: George, Mjay, I remember these two.

MR PANDAY: And why do you remember these two?

MR MZIMELA: They were two close to me.

MR PANDAY: Now did you know that Mr Maduna was the Chairman of the Hammarsdale Youth League?

MR MZIMELA: No, I didn't know that.

MR PANDAY: Did you know he was also an active member in terms of educating the community on policies of the ANC and UDF?

MR MZIMELA: No, I didn't know.

MR PANDAY: Now is it common policy for comrades to just kill another comrade just be the mention of him being an informer?

MR MZIMELA: What I will explain it's exactly what I knew at the time. We were told that he was a police informer.

MR PANDAY: That I know, but what I want to know is that was it policy of the UDF to merely kill a person upon suspicion?

MR MZIMELA: During that period it was common.

MR PANDAY: Yes, now tell me, Mr Khumalo, was he at any stage suspected of being an informer?

MR MZIMELA: Which Khumalo are you referring to?

MR PANDAY: The applicant that appeared here first, is he not known to you?

MR MZIMELA: I know him and I don't know that he was an informer.

MR PANDAY: You never knew he was an informer?

MR MZIMELA: No.

ADV SANDI: Were you not aware of a suspicion on the part of some people which existed that he was an informer?

MR MZIMELA: I only heard about it today.

MR PANDAY: Were you close to Philani Khumalo, as a comrade were you close to him?

MR MZIMELA: Yes.

MR PANDAY: Did you confide in each other?

MR MZIMELA: No.

MR PANDAY: So what sort of close relationship did you share?

MR MZIMELA: We were just friends or comrades.

MR PANDAY: Now did you ever contact the leadership of the UDF and explain to them that there were lots of informers in the area?

MR MZIMELA: No.

MR PANDAY: So is it correct to assume that you would kill whenever you felt like?

MR MZIMELA: No.

MR PANDAY: Why do you say that?

MR MZIMELA: What I know is that UDF was affiliated to the ANC and Oliver Tambo once announced that we should make this country ungovernable.

MR PANDAY: If someone had to tell you that Mr Khumalo was an informer, would you have killed him?

MR MZIMELA: I wouldn't be able to answer that question.

MR PANDAY: Why wouldn't you be able to answer that question?

MR MZIMELA: It is a difficult question.

MR PANDAY: Well why is it difficult? You would kill people that were informers, you were told that Maduna was an informer, you partook in the killing. Now if I had to tell you or someone had to tell you that in 1987 that Khumalo was an informer, would you have killed him?

MR MZIMELA: If we knew that he was we would have.

MR PANDAY: Okay. Thank you Mr Chairperson.

CROSS-EXAMINATION BY MS THABETHE: Thank you Mr Chairperson.

It's just an issue, I think I'm raising it quite late, Mr Chairperson. I'll address it to you first. In the indemnity application that was sent to the TRC, the applicant seems to be applying for the murder, robbery and for which he was convicted and then there's a statement as well, addressed to the indemnity office, where he seems to be outlining the incidents with regard to what he is convicted of.

CHAIRPERSON: Which application is this?

MS THABETHE: Mzimela's indemnity application.

CHAIRPERSON: Indemnity application?

MS THABETHE: Yes, which was forwarded to the TRC as an application for amnesty and really I think the concern is that this incident was not raised then. The only incident which seems to have been raised is the murder of Mapumulo and Makatini.

JUDGE POTGIETER: Where does that appear from?

MS THABETHE: It appears for example in number 9, particulars in offences in respect of which amnesty is sought, he cites the case no. CC150/89 and number C, he cites murder, robbery with aggravating circumstances, murder with extenuating circumstances and then in his statement, attached statement, dated the 6th October 1992, he elaborates, he gives an elaboration of - sorry, no it's a letter to the indemnity office, dated the 31st May 1995 where he mentions the assassination of Makatini, this is the incident for which he is convicted and nothing is mentioned about this incident in question.

JUDGE POTGIETER: Yes now what ...(intervention)

MS THABETHE: So I don't know whether I should address the question straight to the applicant as to why this was not included then.

JUDGE POTGIETER: But our letter of 25th March 1997, what application for amnesty are we acknowledging receipt of? In respect of which incidents?

MS THABETHE: We're acknowledging receipt in respect of the application for indemnity.

JUDGE POTGIETER: No, no, it's says "application for amnesty".

MS THABETHE: It does but there's no application for amnesty.

JUDGE POTGIETER: But how do we know that? He was given a number?

MS THABETHE: Because, Honourable Member of the Committee, there were applications that where there were no amnesty applications where there were only indemnity applications and still they were given numbers.

JUDGE POTGIETER: So are you suggesting that we shouldn't hear this application?

MS THABETHE: No, I'm not suggesting it, Mr Chairperson, I'm just raising it as something that has - you know, dawned on me.

JUDGE POTGIETER: Oh.

MS THABETHE: I don't have any objections if we continue but ...(intervention)

JUDGE POTGIETER: You're not submitting that there is no application for the killing of Vusi Maduna before us?

MS THABETHE: In the indemnity application?

JUDGE POTGIETER: No, no, on the whole?

MS THABETHE: Whether we should?

JUDGE POTGIETER: Yes, otherwise it's irrelevant if you're not going to submit now that we shouldn't hear this application, it's irrelevant for you to be arguing this case in the middle of cross-examination. If you're accepting that there is an application from this applicant in respect of the incident that is now before us, then you must proceed in cross-examining?

MS THABETHE: Yes Mr Chair, but I thought it's my duty to highlight that to you?

JUDGE POTGIETER: Yes, no, no that's fine. I appreciate that but I can't ...(intervention)

MS THABETHE: Yes, it's only raised in the application that was completed today or yesterday.

JUDGE POTGIETER: Yes I just couldn't understand why you're raising it now before you question the applicant?

MS THABETHE: Yes. But I can continue, Mr Chair, with cross-examination. I just wanted you to take note of that.

Mr Mzimela, I have one question for you. You have indicated that you heard that Vusi Maduna was a sell out. Now I want to know, did you hear it from the Clermont comrades or you heard it from the Hammarsdale comrades?

MR MZIMELA: I heard from Hammarsdale comrades but there were Clermont comrades as well present.

ADV SANDI: The day he was killed?

MR MZIMELA: Yes.

ADV SANDI: Was it the first time you heard about it?

MR MZIMELA: Yes.

MS THABETHE: And the killing, it happened in Clermont is that correct?

MR MZIMELA: Yes.

MS THABETHE: Okay, thank you Mr Chairperson, no further questions.

MS MOHAMMED: Thank you Mr Chairperson, I have no further questions.

CHAIRPERSON: Re-examination?

MS MOHAMMED: No.

CHAIRPERSON: Thank you.

JUDGE POTGIETER: Have you got anything else Ms Mohammed?

MS MOHAMMED: I have nothing further for the Committee.

JUDGE POTGIETER: That's your case?

MS MOHAMMED: Yes.

MR PANDAY: Mr Chairperson, the victims intend calling just one witness, that is the brother of Vusi Maduna. We have a chair for him to sit here. I believe it's the end of the applicant, where the applicant sits. Mr Vusi Maduna?

JUDGE POTGIETER: Is it also Vusi Maduna?

MR PANDAY: Oh sorry, sorry. The correct name is - just a second Mr Chairperson?

JUDGE POTGIETER: Alright, we'll hear from him. Mr Panday, is he alright here or do you want him next to you?

MR PANDAY: Well Mr Chairperson, I don't know whether for the purpose of the camera because we have - it's fine.

JUDGE POTGIETER: I think it's more important to hear from you, what is more convenient for you.

MSAWE NKOSI MADUNA: (sworn states)

EXAMINATION BY MR PANDAY: Mr Maduna, what is your relationship with the deceased, Vusi Maduna?

MR MADUNA: My elder brother.

MR PANDAY: Now Mr Maduna, were you aware of your brother, Mr Vusi Maduna's political activity, especially during 1987?

MR MADUNA: Yes I was.

MR PANDAY: Did he belong to any political organisation?

MR MADUNA: Yes.

MR PANDAY: And what was the name of that organisation?

MR MADUNA: Hammarsdale Youth Congress.

MR PANDAY: What was his position in that organisation?

MR MADUNA: Chairperson.

MR PANDAY: Now prior to him joining this organisation, did he hold any other position or form of employment?

MR MADUNA: He was a teacher in Ladysmith.

MR PANDAY: And what was the reason for him having left teaching?

MR MADUNA: Parents assaulted him and chased him out of that area who were IFP members.

MR PANDAY: And after having left Ladysmith, did he return to the Hammarsdale area?

MR MADUNA: Yes he did.

MR PANDAY: Besides being the Chairman of the Hammarsdale Youth Congress, what other role did he play in the Hammarsdale area?

MR MADUNA: He was to make sure that the youth is taught about the politics and I think this is what led him to be an enemy with IFP.

MR PANDAY: Right, now you've sat thus far through the evidence of the applicants that were called and you've heard them stating that your brother was a police informer. Would you like to comment on that evidence that was lead earlier?

MR MADUNA: I would like to put this very clearly. I knew my brother as someone who was involved in the struggle and he was conducting himself like an activist. If it had happened that he's spoken to the comrades and the police, it is obvious to me that the police who called him and told him and the reason can be that he was conversant in Afrikaans and English and probably why that white police spoke to him to speak to the comrades. Again, I would like to clarify something. He used to go to Clermont because our grandmother stays in Clermont. We used to all visit there in the Ntombela family.

MR PANDAY: Now Mr Maduna, the applicants have stated that the reasons for having killed your brother is because they viewed him as an informer. Are they correct in that assumption or do you disagree with that assumption?

MR MADUNA: I wouldn't be able to remove what they believed in but what I would like to say is that if they were matured in the struggle at that time, they would have thought about things like that that someone like Vusi in his position like a chairperson, someone can use that and say he is a police informer in order for the comrades to be the ones who are killing him and in Mpumalanga the area was predominately Inkatha and Vusi was active in getting the youth together and teaching them about ANC and the struggle. Even when I started to be a leader and a ...(indistinct) president in the school I was put in that position myself because I was taught by Vusi.

MR PANDAY: Do you oppose the application that has been brought by Mr Khumalo and the two others for amnesty in respect of the death of Vusi Maduna?

MR MADUNA: Vusi was a very peaceful man and we as a family, we are now in a position to do what he liked to do, we are in a position to - we are compelled to forgive these people because if Vusi was still alive, that is what he could do. I will rather have people telling the truth than for them to lie.

MR PANDAY: Now do you believe that the applicants are telling the truth? That is the important question.

MR MADUNA: The two who testified recently put it very well but the first one related about Vusi that he met Vusi in some other areas and he related something about seeing him having a gun and that doesn't mean that that person is an informer because he himself had guns, it means if Vusi was an informer, he was an informer too.

And another point, yesterday he did mention that Vusi had permed his hair to show that he had money at that time. I would say of course Vusi had money but not from being an informer because it was someone who has been a teacher.

I was also involved in the struggle and also I have a wish for this country to reconcile. I really want to forgive them but it is difficult to forgive someone if someone is saying bad things about someone that you love and things that you know he didn't do them.

MR PANDAY: Okay, thank you Mr Maduna. Thank you Mr Chairperson.

CHAIRPERSON: Can I just go back onto something you said? Did you say that it's possible that some people who shall remain nameless at the moment might have spread the rumour around that your brother, Vusi, was an informer so that the ANC, UDF would attack him?

MR MADUNA: Yes, things like that could have happened but Philani put it in his word that he was matured politically at the time therefore he would have taken this thing like a mature individual and scrutinised everything.

CHAIRPERSON: The mob people wouldn't, they could be carried away by something?

MR MADUNA: If I can go back a little bit, Vusi left Mpumalanga area and went and seeked refuge in Chesterville at another relative. If he was an informer, the Chesterville comrades wouldn't have left him alone because at the time of his death he was mostly staying in Chesterville and also he was staying at another comrade who was an Indian who gave him a place to hide. He was not in one area and in all the areas where he had seeked refuge it was areas which were predominantly comrades, they would have known that he was an informer, if he was one.

CHAIRPERSON: ...(inaudible)

MS MOHAMMED: Thank you Mr Chairperson, I have no questions for this witness.

MR PANDAY: There's no re-examination Mr Chairperson.

MR HARKOO: I have no questions as well.

MS THABETHE: I have none Mr Chairperson.

ADV SANDI: At the time he was killed, do you say he was still the Chairman of the Hammarsdale Youth League?

MR MADUNA: Yes he was.

ADV SANDI: Are you aware of any attempts by anyone who was involved in the Hammarsdale Youth League to oust him on the basis that there were suspicions? I take it there were no such attempts at the time?

INTERPRETER: Could you please repeat your question?

MR MADUNA: After he had left Ladysmith he came back home and my home was attacked from time to time, therefore we were all forced to leave my parents' home. All boys in my family were forced to leave my parents' home. I went to stay in KwaZulu and studied there. We knew that if he was in Clermont he was safe because Inkatha was not in numbers in Clermont, we were surprised when we heard that he was killed.

CHAIRPERSON: Is it correct that your original family home was in Hammarsdale?

MR MADUNA: Yes.

CHAIRPERSON: And then you told us your home was attacked from time to time and you were forced to leave?

MR MADUNA: Yes.

CHAIRPERSON: And did that happen to a great many UDF or ANC supporters in the Hammarsdale area? Were they driven out of the area?

MR MADUNA: Yes that is correct.

CHAIRPERSON: And did they go to places like Clermont and what have you?

MR MADUNA: Yes.

CHAIRPERSON: And your brother went to Clermont, didn't he?

MR MADUNA: Yes.

CHAIRPERSON: Did he live there permanently or did he just go there visiting?

MR MADUNA: He went there to visit, sometimes he will stay in Chesterville in my aunt's place.

CHAIRPERSON: Thank you.

MR PANDAY: Mr Chairperson, that's the only witness that the victims will be calling.

CHAIRPERSON: Alright.

MR PANDAY: Thank you.

MR HARKOO: I have no witnesses, Mr Chair.

MS THABETHE: No witnesses, Mr Chair.

CHAIRPERSON: I think we're ready to hear argument now or what?

MS MOHAMMED IN ARGUMENT: Thank you Mr Chairperson.

It is submitted that Khumalo, the applicant in this matter, the first applicant in this matter, applies for amnesty for the following incidents. Just to summarise, firstly the murder of Simi Nzuza. Secondly, the murder of Vusi Maduna. Thirdly, his involvement in the Reservoir Hills incident and then fourthly, the assaults on Vuna Dlamini and Sipho Mbatha.

It is submitted that each of these incidents do have an associated political objective as stated repeatedly by the applicant during his lengthy testimony. Insofar as the murders of Simi Nzuza and Vusi Maduna is concerned, the applicant repeatedly stated that the reasons for their murders was because they were perceived to be informers. As far as the Reservoir Hills incident is concerned, his primary objective to go there to join the others in this matter was so that he could obtain funds and later leave the country and then join MK and the assaults on Vuna Dlamini and Sipho Mbatha, the political objective there was so that to clear the misconception that was prevailing at the time that the UDF was actually involved in criminal activities and he wanted to dissociate the comrades from any such inclination which any members of the community held.

As far as the next applicant, Mr Mnyandu, in concerned ...(intervention)

CHAIRPERSON: Sorry, before you go on, there's no mention anywhere in any of the advised or other applications about anything under the Firearms Act, is there?

MS MOHAMMED: No. Mr Mnyandu applied for amnesty for the killings of Simi Nzuza and Vusi Maduna, again for the reasons that they perceived them to be informers and likewise Mr Mzimela as far as the killing of Mr Vusi Maduna. There's just one thing I wanted to clear as far as Mr Vusi Maduna's death is concerned. My learned colleague went to great lengths to point out that in fact Mr Maduna held a high profile position insofar as he was the Hammarsdale Chairperson of that youth league and on that basis there wasn't any basis on which the applicants ought to have acted in a manner than they did on the day in question. However, it is submitted that on his own version the witness that testified here on behalf - sorry, Mr Maduna, on his own version he stated that some people could have spread these rumours to give off the impression that Mr Maduna was in fact a police informer so that UDF members would in fact attack him.

And lastly, Mr Chairperson, my learned colleague, the Evidence Leader at some stage made some mention about Mr Mzimela's indemnity application. I wish to point out that although the application refers to those incidents, Mr Maduna - sorry, Mr Mzimela never made mention of the involvement in the Maduna killing because he was never convicted for that matter. He is presently only convicted for the killings of Makomolo and Makatini. On that basis, Mr Chairperson, I submit respectfully that the requirements in terms of Section 20(i) of the Act has been satisfied and that both the applicants be granted amnesty. Thank you.

MR HARKOO IN ARGUMENT: Thank you Mr Chairperson, if I may proceed? In the light of my mandate, I will restrict myself to the first applicant firstly and also to the incident at Reservoir Hills.

It is my submission that this single most important incident for the applicant is that if he is granted amnesty in this particular incident, it will have the effect of having him released from prison and that is the primary reason for having included this incident in his application for amnesty together with the others.

The applicant had given a number of contradictory versions of the events that transpired and explanations were given in regard to each one which cannot conceivably be true. For example he stated in his first statement which was in the form of a letter that it is not true because he did not want to implicate his colleagues. Yet in that very statement he made mention of at least three persons who were involved in that incident. When pressed further, he stated that he did not have confidence in the person who had in fact given him the application forms and he thought that they may have been persons who were sent or agents of the boers. The applicant had not been truthful, the other thing is he refused to answer questions directly and was very vague to questions that were put to him and he began to perambulate to the extent where we had to use our cross-examination. But he however conceded that the incident at Reservoir Hills was not carried out with the promises of obtaining funds to go overseas. He accepted that there were other means available for example approaching other organisations or approaching some organisations.

Furthermore, it is doubtful that he ever had any intention of going to Lusaka because he mentions that although he would die for his organisation or it's aims, his first and primary love was the love of his children who he did not intend leaving.

He went on to state his other reason for having participated in this incident, was that he needed to restore his credibility amongst his comrades. But he himself conceded that it is not the policy of his organisation to become involved in activities of this nature so he cannot - this argument itself as well cannot make sense, it cannot hold water. He mentioned that he did not know precisely what happened inside the bottle store. He conceded in his evidence that he could not have known what happened inside the bottle store prior to him entering and his statement that he mentioned under oath, that is before this Committee, that those persons inside refused to heed any warning is not true, especially in light of the fact that we have documents here, affidavits and also out of the record of the trial where it states that the persons out there offers no resistance at all.

In fact, in fact it was such that they pleaded for mercy.

CHAIRPERSON: It appears to have been a singularly brutal robbery.

MR HARKOO: Yes.

CHAIRPERSON: For some reason or another were determined not only to steal but to do all the damage they could to the people in there.

MR HARKOO: Precisely.

CHAIRPERSON: With knives, guns.

MR HARKOO: The applicant, it is submitted, fully participated in this incident. He took part in the planning, he appreciated that such actions were not politically motivated, nor was it carried out in furtherance of any political organisation or objective. In fact it was his evidence that such actions were not permitted by the organisation that he purported to belong.

Against this background, he fully participated in this incident, he mercilessly killed two persons and seriously injured two others and following upon that, he utilised the proceeds of those funds that he had received for his personal benefit.

Against this background and in the light of what I have now submitted, it's my submission that he has failed to satisfy the requirements in granting of the amnesty in terms of Section 20 and I submit that the application for amnesty be refused. Thank you.

MR PANDAY IN ARGUMENT: I'll try not to overlap into much of my learned friends submissions insofar as the robbery at the Reservoir Hills Hotel is concerned but to add the following. Mr Chairperson, the applicant would like to have the Commission believe that he had to structure a lie on the lengthy letter he had submitted to the TRC with regard to the robbery took place and the reason having structured this lie was to protect himself. Now the irony, if at all, is that there were no parties with him in prison at that time that would be of any danger to him with specific reference to the Reservoir Hills incident. There was no threat to his life.

Further to that, Mr Chairperson, the applicant, if one has to accept that that may be a reasonable reason, but there was no reason to lie on his version as my learned friend, the Evidence Leader, Ms Thabethe, questioned him on and then too, he was not able to afford this Commission as to why he came with his version.

Now one of the questions in the application form is "did you benefit financially?" Now on page 5, interpreted version:

The answer given is that:

Part of it may be true that they may have wanted the UDF to know about it, but the flipside is that he did benefit financially and he continued to benefit from it financially from this act. They rob a hotel, he would like the Committee to believe that this was to give him financial assistance.

CHAIRPERSON: This does not relate does it? This thing at page 5, when you say "did you benefit financially?" This does not relate to the robbery does it?

MR PANDAY: I would concede that Mr Chairperson, as he later reflects on the incident that took place as you were still awaiting file at this stage.

CHAIRPERSON: Because there's a (d):

MR PANDAY: Okay, I would concede that.

JUDGE POTGIETER: Mr Panday, which of the victims of Reservoir Hills are you representing?

MR PANDAY: Mr Chairperson, it's the owner of the hotel, Mr Dukhi.

JUDGE POTGIETER: Was he involved in the incident.

MR PANDAY: No, Mr Chairperson, his hotel was robbed and the monies were taken from there. He was also shot.

JUDGE POTGIETER: No, no, I know about that but was he inside there, was he one of the people present?

MR PANDAY: No, he was not inside the hotel but subsequent to the robbery taking place he was later shot by the escaping robbers.

JUDGE POTGIETER: Or after the event?

MR PANDAY: Yes.

JUDGE POTGIETER: Is he one of the people that had a gunshot wound?

MR PANDAY: Yes and a Mr Moodley as well, that's the second person.

JUDGE POTGIETER: Alright.

MR PANDAY: Now Mr Chairperson, the applicant has benefited financially on his own version. He took money to his girlfriend to ease the tension that rested between himself and the family for having damaged her. He then would later have the Committee believe that some of the money was spent on socks and shoes and shorts as would be the requirements of the Umkhonto weSizwe, for their training, or to cross the borders as their clothes would get torn. But he never goes on to eventually reach a conclusive decision as to when, how and with who he was going to join MK and they would also have you believe in the evidence that monies were going to be used for a car to get them across.

CHAIRPERSON: Well that wasn't in the evidence, was it? That was in his letter.

MR PANDAY: That was in the letter.

CHAIRPERSON: He did not say a word about that.

MR PANDAY: That was in the letter which he then obviously indicates that to be a lie and in the letter itself the amounts change and there's no reason for the amounts to change. Now Mr Chairperson, ...(intervention)

CHAIRPERSON: I don't think we require any further argument about this incident.

MR PANDAY: Thank you Mr Chairperson. With regards to the killings of Maduna and Nzuza, the applicant, it is submitted that he has not made full disclosure with regards to Maduna. His information that he had within his knowledge, he considers himself to be a mature activist, as the witness puts it and he ought to have gone further and would have gone further in establishing the allegations against the ...(intervention)

CHAIRPERSON: There is no suggestion, is there, from any source of any personal vendetta or ill-feeling?

MR PANDAY: I concede that Mr Chairperson and as such, Mr Chairperson, the witness for the family has conceded that the applicants, the second and third applicant gave an account of the events that may have taken place on the day in question when they were killed but not insofar as their knowledge as they would be expected to have when dealing with the deceased, Mr Maduna.

ADV SANDI: What should be the test in such a case?

MR PANDAY: Mr Chairperson, with regards to the applicants two and three?

MR PANDAY: Yes. A person who receives information or an allegation that so and so is this and that, how do you assess the mental process of the reasoning of this person in order to arrive as to whether he acted bona fides?

MR PANDAY: Well with applicants two and three I would concede, Mr Chairperson, that their actions were bona fides as they intercepted a group or one was part of a group and one came into a group, being advised that so and so is being implicated as an informer. But with regards to the first applicant, he would have had all the necessary time to confirm that and also approach it in a much diplomatic manner as ...(indistinct).

Mr Chairperson, in regards to the application for amnesty in respect of the murders of Maduna and Nzuza, I may concede that there was a political element to it. The only issue as to whether the first applicant has made full disclosure to the Committee and with regards to the assaults on Mr Dlamini and Mr Mbatha, I would submit Mr Chairperson that there seemed to appear to be a more personal reasoning as to why there was this assault lodged against Mr Mbatha stemming from the fact that money was being owed for the dagga and the applicant was being implicated and went to clear his name.

CHAIRPERSON: Well there's also the theft, isn't housebreaking and theft?

MR PANDAY: Housebreaking and theft which the applicant was given the impression that he is being implicated and ...(intervention)

CHAIRPERSON: Also gives credit to his political organisation if those seen by the public as being a defence against that sort of behaviour which they thought the police were sadly lacking.

MR PANDAY: I would concede that there has been evidence before the Committee, Mr Chairperson, where organisations have ignored to go to the police by virtue of actually there was no response from the police.

MS THABETHE IN ARGUMENT: Do you still wish to hear argument in respect of Reservoir Hills, Mr Chairperson?

CHAIRPERSON: Unless you wish to draw our attention to something that hasn't been mentioned?

MS THABETHE: I wanted to draw your attention to the policy of the ANC and any other organisation and I would refer you to a matter that we heard last week in Port Elizabeth.

CHAIRPERSON: That was a different political organisation which had a different policy.

MS THABETHE: Yes, but what I wanted to say is that it wasn't the policy of any organisation to commit robbery for intentions of that person to go for training or to skip the country.

CHAIRPERSON: No, the robberies we've had is where they wanted firearms or money to be given directly to the party to use for the party's purposes, so that wasn't.

MS THABETHE: Yes, that's one thing. Another thing, Mr Chairperson, I wanted to draw your attention to the ratio of proportionality because the evidence we have is that when they entered, the victims said take the money and go and I would submit that the act of stabbing the people who were inside the hotel and some who were shot was not proportional to the ...(intervention)

CHAIRPERSON: Particularly if you have regard to the nature of the stab wounds and the number of them.

MS THABETHE: Yes, it was not proportional to the objective of taking the money which they were ordered according to the evidence we've heard today. There was an indication ...(intervention)

JUDGE POTGIETER: I must confess that I'm confused. Perhaps I'm not reading these post-mortem reports properly but there is evidence and somebody referred to it in cross-examination, there's reference to needle prick wounds, a number of them and then when I looked at the post-mortem I saw that there appears to be one very fatal stab wound on the shoulder that entered the chest of the deceased and it also seems to be in respect of the other one now. Now you could perhaps help, I wasn't sure if the needle prick wounds, whether those were actually stab-wounds or was it wounds that was caused by surgical instruments or what? Because there was one ...(intervention)

MS THABETHE: They were stab-wounds, apparently Mr Chairperson. I'm being told by ...(intervention)

JUDGE POTGIETER: No, no, no, I don't want you to repeat what other people said, I'm asking you, I'll ask Mr Harkoo if I want to or you could help me.

MS THABETHE: Can you please refer me to the relevant page?

JUDGE POTGIETER: Because - look at the post-mortem.

MS THABETHE: Okay.

JUDGE POTGIETER: What is the needle wounds, whatever they call it here?

MS THABETHE: Mr Chairperson, I would be lying if I knew what the needle wounds referred to here are but the evidence that we have is that they were stabbed. I wouldn't want to give, you know, give something that I'm not sure about, a version that I'm not sure about.

JUDGE POTGIETER: Yes.

MS THABETHE: What I know is that there were stab wounds and ...(intervention)

CHAIRPERSON: I don't think they could have been treatment because if you look at page 155, it says:

Well that is hardly the thing that treatment is likely to be doing.

JUDGE POTGIETER: Yes so you say you can't assist with what sort of instrument would cause those kind of wounds, whether it's a knife or whether it's some other thing?

MS THABETHE: No, no Mr Chairperson.

MR HARKOO: If I may assist Mr Chairperson?

JUDGE POTGIETER: Yes.

MR HARKOO: My learned friend who in fact is also my partner and brother of the deceased, of this deceased also confirms that those were in fact stab wounds. I did put it in ...(intervention)

JUDGE POTGIETER: Is it the son or the father?

MR HARKOO: The son.

JUDGE POTGIETER: The son, oh.

MR HARKOO: Yes, he was stabbed on the shoulder and died of a fatal wound on the neck and I did put it through that the victims were my brother and father respectively and my brother was 17 years old and in matric at that particular time.

JUDGE POTGIETER: Yes, so those needle puncture wounds?

MR HARKOO: He was on medical treatment for anything.

JUDGE POTGIETER: This was stab wounds?

MR HARKOO: Stab wounds, yes.

JUDGE POTGIETER: All of them?

MR HARKOO: All of them.

JUDGE POTGIETER: Yes thank you, thank you very much.

MS THABETHE: With regard to the killing of Vusi Maduna, Mr Chairperson and Honourable Members of the Committee, I would leave it to the hands of the Committee to make their right decision. Also that applies to the killing of Simi Nzuza and the assault upon Moses Buno and Sipho Mbatha. Thank you.

MS MOHAMMED: Nothing further, Mr Chairperson. As the Committee pleases. Mr Chairperson ...(intervention)

CHAIRPERSON: Some of you will be leaving now?

MS MOHAMMED: Yes Mr Chairperson.

CHAIRPERSON: Thank you for your ...(inaudible)

______________________________________________________CHAIRPERSON: We now come to the application of Bongani Sidney Dunywa and the Committee remains the same. The Evidence Leader remains the same and the only change is the counsel for the applicant. Would you please put yourself on record?

MS DE KLERK: Mr Chairperson, I'm Marcia de Klerk and I appear for the applicant in this matter.

CHAIRPERSON: This is another one of the matters that we've been hearing this week where the application forms seem to be a little out of order and the application form we have was signed on the 4th April 2000, a long time after the cut-off date but there is correspondence before us referring to an earlier application and citing the reference number and we gather that there has been some problem in getting any reply from the attorney who acted for him, who was responsible for filing some of the earlier matters. It seems to us we can merely proceed on the basis of the application forms which is now before us unless any of you have anything to say to the contrary?

MS THABETHE: I have no objection, Mr Chairperson.

CHAIRPERSON: It is clear that there was an attempt made timeously and what's happened to it we just don't know at the moment. So are you calling the applicant?

BONGANI SIDNEY DUNYWA: (sworn states)

EXAMINATION BY MS DE KLERK: Mr Dunywa, just to give the Committee some personal details. How old are you?

MR DUNYWA: I am 30 years old.

MS DE KLERK: Where are you presently living?

MR DUNYWA: I am residing in Johannesburg.

MS DE KLERK: With whom are you living?

MR DUNYWA: With my relatives.

MS DE KLERK: Are you married?

MR DUNYWA: No.

MS DE KLERK: Do you have any children?

MR DUNYWA: Yes I do.

MS DE KLERK: How many?

MR DUNYWA: Two.

MS DE KLERK: Okay, prior to your imprisonment, did you work?

MR DUNYWA: Yes.

MS DE KLERK: And now are you presently employed?

MR DUNYWA: No, I am not employed.

MS DE KLERK: What education did you have prior to your imprisonment?

MR DUNYWA: I had completed Standard 10.

MS DE KLERK: And what education do you have now?

MR DUNYWA: I'm completing my MBA.

MS DE KLERK: Okay. Where were you living before going to prison?

MR DUNYWA: I resided at Paddock.

MS DE KLERK: And how long did you live there?

MR DUNYWA: I think I've lived there all my life.

MS DE KLERK: And at the time when you were living at Paddock did you belong to any political party?

MR DUNYWA: Yes.

MS DE KLERK: What was the name of that political party?

MR DUNYWA: It was the ANC.

MS DE KLERK: Which branch of the ANC did you belong to?

MR DUNYWA: The Potchefstroom branch.

MS DE KLERK: And how did you become to belong to the Potchefstroom branch of the ANC?

MR DUNYWA: Briefly, I was an activist, a political activist at school so that when the ANC was banned in 1990 I contacted the Potchefstroom branch and requested them to launch a branch in Paddock because there were many people who were interested in joining the organisation.

MS DE KLERK: Why did you choose the ANC?

MR DUNYWA: Because I supported the policies and the objectives of that organisation.

MS DE KLERK: And did you yourself play an active role in the ANC?

MR DUNYWA: Yes I did.

MS DE KLERK: And what was your role?

MR DUNYWA: I was involved in educating people about the objectives, policies and the general direction that the ANC was taking and what the aims of the ANC were with regards to this country?

MS DE KLERK: And how did you go about propagating the ANC?

MR DUNYWA: I would call various meetings at Paddock. Sometimes we'll also hold workshops spreading the message that the people should be encouraged to join the ANC.

MS DE KLERK: And how were decisions made at the Paddock branch?

MR DUNYWA: Decisions were taken at meetings. However, at other times some decisions were taken by executive members without the knowledge of general membership.

MS DE KLERK: Did you, as a member of that branch, have any authority in the decision making process?

MR DUNYWA: Yes.

MS DE KLERK: Can you tell us now a bit about the political instability in the area in which you lived, in the paddock area?

MR DUNYWA: Yes I can do that. At that time we were harassed by Security Forces and the police and sometimes we would clash with the IFP but that was not very prevalent prior to 1990. After the unbanning of the ANC some members of the ANC left the organisation and they colluded with the police and later on started harassing the community and were responsible for the deaths of many people in our area.

MS DE KLERK: How did your branch react to the killings?

MR DUNYWA: We reported the matter and we were advised to follow this issue up and see who was in fact responsible for all these activities and doings in the name of the ANC.

MS DE KLERK: And did you follow up?

MR DUNYWA: Yes we did.

MS DE KLERK: How did you follow up?

MR DUNYWA: There was a group of police who was sympathetic to the ANC but they did this covertly. These policemen were able to give us inside information about what was going on within the police with regards their struggle that they were waging against the ANC. Besides that we also followed up allegations about the deaths of various people.

MS DE KLERK: Okay, can we move now to the murder for which you were convicted? Who was this person?

MR DUNYWA: It was Nyani Xolo.

MS DE KLERK: And did you know Mr Xolo?

MR DUNYWA: Yes I knew him.

MS DE KLERK: How did you know him?

MR DUNYWA: We grew up together.

MS DE KLERK: And did he belong to any political party?

MR DUNYWA: As far as I know he was not affiliated to any organisation.

ADV SANDI: What did he do for a living, what was his occupation? A student, a working somebody, what was he?

MR DUNYWA: He lived and worked in the mines but when he returned in 1990 during the political unrest he collaborated with this group of dissident members who had turned against the people and that is how he lived.

MS DE KLERK: What steps did you try to confirm that he was a member of this group?

MR DUNYWA: Firstly, as I mentioned before, there were police persons who were able to supply us with information with regards to people like him. Moreover, he was always in the company of those people and we used to follow on their activities that they did towards the community then.

MS DE KLERK: So what was your reaction when you discovered that he was a member of this group or he associated himself with this group?

MR DUNYWA: After we had confirmed these reports, that he was indeed in collaboration with these people, we held a meeting and this matter was discussed. The meeting decided that these people should be eliminated.

MS DE KLERK: Who called this meeting?

MR DUNYWA: It was myself.

MS DE KLERK: And where was this meeting held?

MR DUNYWA: In the Anglican Church in Paddock.

MS DE KLERK: And how many people attended this meeting?

MR DUNYWA: I think about a hundred people attended this meeting.

MS DE KLERK: And what was decided at this meeting?

MR DUNYWA: At that meeting it was decided that because of what they had done to the community, undermining the image of the ANC, it was decided that they should be eliminated.

MS DE KLERK: And how did you decide to implement this decision?

MR DUNYWA: A subsequent meeting of the executive was held where it was decided that we would form groups and those groups would be responsible for those tasks of eliminating these individuals.

MS DE KLERK: Who were the members of the executive committee?

MR DUNYWA: It was myself, Andreas Xolo, Scebe who is now deceased.

MS DE KLERK: And was the regional branch, that is the Port Shepstone branch informed of this decision that you all had taken?

MR DUNYWA: No, we did not inform them.

MS DE KLERK: Okay. Can we move now to the ...(intervention)

ADV SANDI: Why did you not inform them?

MR DUNYWA: There were situations that were sometimes urgent and sometimes compelled that we take action immediately before we even report such instances to the branch.

MS DE KLERK: So on the evening, can you tell us about what happened the evening of the 26th October 1990? In particular, what was the role that you played?

MR DUNYWA: I was at home all day and Comrade Dan Gumede came to me, reported that the one of the dissident people, Mr Nyani Xolo was at the bar drinking. Then already knew of the decision to eliminate these people. I then told them to organise or to ensure that Mr Xolo is separated from the people that he was drinking with or he waits until they disperse. I also sent him to Comrade Tulani, that is to enlist his assistance. We then left and then Gumede took the deceased and his companions. After a while they dispersed after Dan had convinced the deceased to go with him. He followed them to a bushy area and that is where we attacked Nyani Xolo. I was armed with a sharp instrument. The others had knives. We left him there after he had been killed.

MS DE KLERK: What was the reason were you participating in this murder?

MR DUNYWA: I had already issued out an order that he be eliminated as the chairperson and I had to ensure that order was carried out.

MS DE KLERK: And how do you feel now about that you played in that incident?

MR DUNYWA: I wish to state particularly to his family that I feel regret that he died. However I would request them to extend their hand in reconciliation, mindful of political situation at the time because we were at war with the then government which was in collusion with the IFP and Security Forces. Some situations pressured or compelled us to act as we did. Perhaps the deceased could have played a constructive role in the development of this country had it been otherwise. Therefore I reiterate to the relatives and friends for them to be mindful of the political situation at the time, particularly on the bearing it had on us as political activists. I would request perhaps his father to place himself in my shoes and look back at what happened then. Perhaps he would be able to see that he could have found himself in the same situation because we were advancing the objectives of the ANC then.

MS DE KLERK: What happened after the murder, did you tell anyone what had occurred?

MR DUNYWA: I did not inform anyone, not even my parents.

MS DE KLERK: Did you report the incident to the Port Shepstone branch of the ANC?

MR DUNYWA: Besides that I did not report it to my family, but I did report it to the branch in Port Shepstone.

MS DE KLERK: And what was the reaction of the Port Shepstone branch?

MR DUNYWA: They promised me that if the police follow the issue up and I am implicated they would try to assist me in getting legal representation.

MS DE KLERK: Do you feel that the killing achieved it's objective?

MR DUNYWA: Yes that is correct.

MS DE KLERK: Why do you say this?

MR DUNYWA: Because after his death his colleagues fled the area and carried their activities elsewhere and there was a relative peace in the area and the community understood then who had been responsible for harassing them and for the element of criminality that had existed then and the people realised who their enemy was and who was advancing the objectives of the liberation struggle.

MS DE KLERK: You were subsequently arrested, were you not?

MR DUNYWA: Yes I was arrested.

MS DE KLERK: And who represented you at your trial?

MR DUNYWA: It was a Mr Siloshni Pillay.

MS DE KLERK: And who paid for your legal representation?

MR DUNYWA: It was the ANC.

MS DE KLERK: And did you tell the truth at your trial?

MR DUNYWA: Yes I did.

MS DE KLERK: Mr Chairperson, that is the evidence.

CROSS-EXAMINATION BY MS THABETHE: Thank you Mr Chairperson.

At the trial did you explain the political motive behind the killing of Xolo?

CHAIRPERSON: ...(inaudible)

INTERPRETER: The speaker's mike is not on.

MS THABETHE: Yes, except Mr Chair on page 26 of the sentence.

CHAIRPERSON: ...(inaudible)

MS THABETHE: Yes, because he pleaded guilty, yes.

CHAIRPERSON: Right, do you have any questions?

MS THABETHE: Yes Mr Chairperson. Actually I would like to refer the Committee to page 26 of the sentence where - the fifth line:

Would this be the meeting you were talking about earlier on in your evidence?

MR DUNYWA: That is correct.

MS THABETHE: My question is, in court or in your statement did you explain the political motive behind the killing of Mr Xolo? The political motive?

MR DUNYWA: Yes I did explain but the presiding judge did not take much notice of that evidence because he said many times people had killed others taking the law of the country into their hands, therefore he was not in a position to accept my reasoning and said I should have left the matter to the police but I did explain to the judge that the police were in collusion with the deceased, therefore were not going to help us but the judge did not take any notice of that explanation.

MS THABETHE: You've indicated that you grew up with the deceased in the same area and you've also indicated that you say he was working with the police. What period was this, during which year?

MR DUNYWA: And this happened over a short period in 1990. The deceased joined these criminals later. After they had been in operation for a long time.

MS THABETHE: Why I'm asking you this is because Mr - the deceased's father is here, he is present today and if it's necessary, he can come in to testify as well to the fact that the deceased was working in Johannesburg at the time of his death and he had been working in Johannesburg from about 1986/1987. Now would you dispute this as a person who grew up with him?

MR DUNYWA: I would dispute part of what you said. I will concede that yes, he did work in the mines as stated by his father but I hope he knows that on his return in or around June 1990 he associated himself with this group of criminals. He must know that very well. I cannot dispute that he did work at the mines but on his return he started all these activities.

MS THABETHE: Just hold it there. Actually when he was killed he was working in Johannesburg, correct?

MR DUNYWA: I would put it this way, it is possible that he did work in Johannesburg then or maybe he was on leave.

MS THABETHE: Let me give you direction. According to his father he had been working in Johannesburg like I said before from '86/'87 and usually visited home now and again. He used to come at home to visit and during this time he was at home on a visit. Now my question to you is you have indicated that he joined the gang in 1990, that is June. Or he associated himself with the members of the gang. Exactly what did he do which showed that he associated himself with the members of the gang given the fact that he just came home to visit and he wasn't staying in the area at the time?

MR DUNYWA: I would like to dispute something stated by his father. I do not know about any employment conditions operating in the mine then but if I look at how long he was at home from June to October I do not think he was on leave, such a lengthy leave. As regards to what he did, I would say he worked with them. I observed that he was with them and as I mentioned before, I did receive reports from the police who worked with us and most decisions that we took then were from the knowledge gleaned from those policemen.

MS THABETHE: In the indictment or the summary of substantial facts there's an indication that Dan Gumede once had quarrel with the deceased, Nyani Xolo, because he had slept - that is Dan Gumede, had slept with the deceased's sister without paying the customary price. Would you know anything about this dispute?

MR DUNYWA: I do not know about that but the investigating officer did mention it to me but I knew that we were at war with the policemen so they could have fabricated, the police could have fabricated evidence to protect their colleagues.

CHAIRPERSON: There was no mention whatsoever of such an incident in the judgement on sentence, was there? In fact there the judge says he would have claimed to believe the deceased was a member of a band which committed crimes and I accept that you subjectively held such a belief?

MS THABETHE: Yes Mr Chairperson, but in the summary of substantial evidence ...(intervention)

CHAIRPERSON: Yes but that is just a summary. If such evidence had been led giving a motive one would have expected the judge to comment on it. He has not done so.

MS THABETHE: I'm indebted to you, Mr Chairperson.

I just want to find out again, what position did you hold in your organisation at the time in 1990?

MR DUNYWA: I would say I was a political education officer as well as being chairperson of meetings that were held.

MS THABETHE: And would you say you had the authority to give the order that Mr Xolo should be killed?

MR DUNYWA: Yes I did.

MS THABETHE: Thank you Mr Chairperson, I have no further questions but I would like an indulgence of the Chair to consult briefly with the victims just to find out if there is anything that I've left out because they are not represented.

CHAIRPERSON: Any re-examination?

MS DE KLERK: Not at this stage, Mr Chairperson.

CHAIRPERSON: Right, we'll take a short adjournment.

CHAIRPERSON: Does that close your case then?

MS THABETHE: It closes my case, Mr Chairperson.

CHAIRPERSON: Sorry, have you closed yours?

MS DE KLERK: I hadn't but I do close my case.

CHAIRPERSON: Right, would you like to address us?

MS DE KLERK IN ARGUMENT: Thank you Mr Chairperson.

The applicant is 30 years of age. He has a matric as well as a two years of a Batchelor's degree which he intends completing. He has brought this application under the provisions of Section 20(2)(d) and that is that the offence was committed in furtherance of a political struggle against persons who he believed to support the then apartheid government by corroborating with the Security Forces and Inkatha. The offence was committed in the course of a reaction to a group of persons who were seen to be working with both Inkatha and the Security Forces and these Security Forces and Inkatha were responsible for destabilising and attempting to divide and to ameliorate the support for the ANC in the Paddock area from which the applicant belonged. The applicant firmly believed that the deceased belonged to this group of persons through his association with these persons and him and his co-accused attacked the deceased and injured him which resulted in the deceased's death. The applicant was convicted and sentenced to nine years imprisonment for which two years was suspended by Mr Justice Page. He effectively served five years of his prison term. I submit that the objective of the applicant's act was to eliminate the group to which the deceased belonged to as they were seen as a threat to the ANC and also not only as a threat but also as bringing the ANC in a bad light within the Paddock area. Therefore the offence was primarily directed at the Security Forces within the applicant's area through the individuals which associated themselves to the Security Forces and the offence was committed in the execution of an order. However, this was without the approval of the Port Shepstone branch to which the applicant was a member.

I submit that there is a direct political conflict between the applicant and the members of the ANC branch in the Paddock area and the Security Forces and Inkatha in that area during that time in 1990 and their main objective was to prevent the Security Forces from destabilising and dividing their community. It's the applicant's evidence that after the killings the ANC was able to consolidate themselves and to renew the support for the ANC and to place the ANC in a better light in the paddock area and it's also submitted that the applicant honestly believed that after the offences which they had committed they were able to then protect the community from the violence of this group of people and Security Forces.

It is submitted that the applicant didn't commit the offence for financial gain. All he sought to do was to drive the Security Forces from the area so that they could strengthen their position as ANC members and I submit that the applicant has made out a case for the relief which he seeks and I ask this ...(intervention)

CHAIRPERSON: One factor which I think should be mentioned which I should have placed on record earlier, I think, is that we have been given a letter from a firm of attorneys acting for the ANC which states that on the instructions of the Port Shepstone branch of the African National Congress, they represented the applicant apparently at his trial which would appear to indicate that the ANC also believed that it was a political objective.

CHAIRPERSON: Right, any submissions?

MS THABETHE: No Mr Chairperson, I have no submissions especially in the light of the letter that you refer to.

CHAIRPERSON: Right thank you, we will take time to consider our decision.

MS THABETHE: Thank you Mr Chairperson, that concludes our roll for today.

CHAIRPERSON: What time tomorrow?

MS THABETHE: Half past nine.

CHAIRPERSON: Half past nine?

MS THABETHE: Yes.