--------------------------------------------------------------------------CHAIRPERSON: ... the legal representatives to identify themselves on record for the purposes of that record.

MS MOHAMED: Thank you Mr Chairman, my name is Ms Mohamed from the firm Dehal Incorporated, on record for the applicant Mr Nyathikazi.

MR PANDAY: Thank you Mr Chairman. I represent the victims of the Nyathikazi application, namely the Ntuni family and my name is S Panday.

CHAIRPERSON: Mr Panday while you represent the victims, how many are there that you represent?

MR PANDAY: Mr Chairman it's the Ntuni family, that's the mother and the brother who are present. I'm given to understand that at the time of the incident the deceased was not married.

MR LAX: Did he have any children?

CHAIRPERSON: Ja, he may still have children.

MR PANDAY: No, from what I understand there are no children.

CHAIRPERSON: For what it's worth, I think only the mother then becomes the victim in terms of the definition of the Act, while his brother may very well be an interested party.

MR PANDAY: Yes.

CHAIRPERSON: Are they opposing this application?

MR PANDAY: Yes, Mr Chairman, they are opposing.

CHAIRPERSON: On what basis?

MR PANDAY: On the basis that they believe that the act was not politically motivated and the basis for the non political motivation, that the family recognises the applicant to have more criminal agendas behind the incident as opposed to political agenda.

CHAIRPERSON: Mr Nyathikazi, what language would you prefer to use?

MR NYATHIKAZI: Zulu.

DANNYBOY NYATHIKAZI: (sworn states)

EXAMINATION BY MS MOHAMED: Thank you Mr Chairman. Mr Nyathikazi, before you have a bundle of documents. I'm going to refer you to that bundle of documents, okay. Now isn't it correct that a copy of this bundle was handed to you at prison last week?

MR NYATHIKAZI: That's correct.

MS MOHAMED: Have you read the bundle and familiarised yourself with the contents?

MR NYATHIKAZI: That's correct.

MS MOHAMED: Thank you. Now I'm going to take you to the bundle itself. Isn't it correct that you've made two applications for amnesty, you filled in two forms for application for amnesty?

MR NYATHIKAZI: That's correct.

MS MOHAMED: Okay. Now look at pages 1 to 3 of the bundle. Is it correct that this is the first application that you filled in and it's dated the 22nd of ...(intervention)

MR NYATHIKAZI: That's correct.

MS MOHAMED: It was signed on the 3rd of May?

MR NYATHIKAZI: That's correct.

MS MOHAMED: Look at the signature on page 3, is that your signature?

MR NYATHIKAZI: Yes, it is.

MS MOHAMED: Okay. I'm going to refer you to the next application from pages 4 to 6 and is that your signature on page 6?

MR NYATHIKAZI: That's correct.

MS MOHAMED: Thank you. Now on pages 14 to 18 of this bundle, there's a hand-written affidavit. It was drawn on the instructions that you gave to Ms Mkhize when she called at ...(indistinct) prison, isn't that correct?

MR NYATHIKAZI: That's correct.

MS MOHAMED: Now Mr Nyathikazi, isn't it correct that you are applying for amnesty for the murder of Zwelibanzi Ntuni which occurred on the 14th of April 1994?

MR NYATHIKAZI: That's correct.

MS MOHAMED: Isn't it also correct that you were convicted for this offence?

MR NYATHIKAZI: That's correct.

MS MOHAMED: What - sorry, what sentence did you receive?

MR NYATHIKAZI: I was sentenced to 18 years imprisonment.

CHAIRPERSON: What was the date of the murder?

MS MOHAMED: 14th of April 1994. Now Mr Nyathikazi, isn't it correct that in the early 1980's you were a member of the ANC?

MR NYATHIKAZI: That's correct.

MS MOHAMED: What was your role within the ANC?

MR NYATHIKAZI: I was a member of the Street Committee.

MS MOHAMED: Did you occupy this position throughout your involvement with the ANC, or did your membership at any stage change?

MR NYATHIKAZI: Yes, I was a member of the Street Committee.

MS MOHAMED: Did your membership of the ANC change at any stage?

MR LAX: Sorry, what do you mean, did his membership change?

MS MOHAMED: Sorry Mr Lax, I'm trying to ascertain whether he remained a member of the Street Committee throughout his membership of the ANC.

MR LAX: When did you join the ANC?

MR NYATHIKAZI: During the 80's.

MR LAX: And you remained a member until this incident?

MR NYATHIKAZI: That's correct.

MR LAX: When did you join the Street Committee?

MR NYATHIKAZI: In 1984.

MR LAX: 1984?

MR NYATHIKAZI: That's correct.

MR LAX: And you were part of that structure until this incident?

MR NYATHIKAZI: Yes. I was also involved in other activities for example marshalling during ANC activities.

MS MOHAMED: Mr Nyathikazi, you say in your affidavit on page 11 that you joined MK.

MR NYATHIKAZI: Yes.

MS MOHAMED: When did you join MK?

MR NYATHIKAZI: In 1989.

MS MOHAMED: Where did you receive your training?

MR NYATHIKAZI: In Tanzania.

MS MOHAMED: And when did you return to South Africa?

MR NYATHIKAZI: In April 1991.

MS MOHAMED: Now Mr Nyathikazi, I'm going to take you to the day in question of this incident, that is the 14th of April 1994. Now on the day in question, were you in the vicinity of Road 8 in Chesterville?

MR NYATHIKAZI: I was at Road 8.

MS MOHAMED: Who was with you?

MR NYATHIKAZI: I was with Jabulani Mzweli.

MS MOHAMED: What were you doing there?

MR NYATHIKAZI: We were distributing pamphlets about the upcoming elections.

MS MOHAMED: Okay and then what happened?

MR NYATHIKAZI: We were on a motor bike in Road 8 when two men approached. One was Zwelibanzi Ntuni and the other was Wiseman. They came closer to us and asked are we continuing with distributing these pamphlets. They then started shooting at us at which time we fled.

MR LAX: Sorry. Was the Wiseman, Wiseman Ntuni? What's his surname?

MR NYATHIKAZI: I forget his surname.

MS MOHAMED: And then what happened?

MR NYATHIKAZI: Jabulani was hit on the leg. but we managed to flee although we parted ways as we were running away.

MS MOHAMED: Okay now isn't it correct that at some stage you later returned to the scene of this shooting?

MR NYATHIKAZI: That is correct.

MS MOHAMED: Okay. How did you proceed to the scene, in other words?

MR NYATHIKAZI: I then went back to the scene. On my way I met Sitembiso Msimanga and Robert Ngobane walking down the road. They accompanied me are inquired what had been happening because they had heard gun shots. I told them what had happened.

CHAIRPERSON: Who were the two people, Robert Ngobane and who else?

MR NYATHIKAZI: Sitembiso Msimanga.

CHAIRPERSON: Tembo?

MR NYATHIKAZI: Sitembiso.

MS MOHAMED: Okay and then what happened?

MR NYATHIKAZI: We later met Mondo Mkhize and they all accompanied me to go look for the motor bike and the pamphlets. When we arrived at the scene, we could not find that motor bike, so we turned back along Road 13.

MS MOHAMED: Okay. Then what happened?

MR NYATHIKAZI: As we were walking along the road we met Mondo Mkhize's girlfriend.

MS MOHAMED: What's her name?

MR NYATHIKAZI: I have forgotten her name.

MS MOHAMED: Okay, then what happened when you met her?

MR NYATHIKAZI: Mondo and his girlfriend stopped and chatted for some time. As they were parting, the girlfriend indicated using her eyes, pointing towards the side. When I followed her eyes, I noticed some people standing around there. The people were standing next to a tree in a certain house. Mondo then went towards that house and went inside the premises.

MS MOHAMED: And then what happened?

CHAIRPERSON: Tell me, why did you go back to Road 8?

MR NYATHIKAZI: I went to look for the pamphlets that were left there, as well as the motor bike.

CHAIRPERSON: Now if you had found it what would you have done with it?

MS MOHAMED: I would have taken them back to my home.

CHAIRPERSON: Which is where, of which was where?

MR NYATHIKAZI: It was in Road 15.

CHAIRPERSON: Now Road 8 and Road 15, are they parallel to each other, or do they run off each other, or what? How do you - okay, carry on, answer.

MR NYATHIKAZI: They are a distance away from one another.

CHAIRPERSON: Parallel with each other, or do they run at right angles or any angle to each other?

MR NYATHIKAZI: They are not parallel, they are far from each other and they are not in a straight line.

CHAIRPERSON: What is the shortest distance one has to use to get from Road 8 to Road 15?

MR NYATHIKAZI: You go along Road 13 and then that takes you to Road 14 and then you would get to Road 15.

CHAIRPERSON: Now is Road 13 at right angles to Road 8, or is there another way you could use ...

MR NYATHIKAZI: They are at right angles.

CHAIRPERSON: Is there another route you could use to get to Road 15 from Road 8?

MR NYATHIKAZI: You could also go along Road 1, but that will take you longer.

CHAIRPERSON: Now these people who had objections to your distributing pamphlets and so forth, were they known to you?

MR NYATHIKAZI: Yes, I knew Zwelibanzi well, but the other one was just a resident who was not close to me.

CHAIRPERSON: Now were they known political opponents to...

MR NYATHIKAZI: One that I was aware of as being a political opponent was Zweli who to me was similar to an askari.

CHAIRPERSON: Now did you know where he was staying?

MR NYATHIKAZI: Yes, he resided at Road 18.

CHAIRPERSON: I see. And in Road 13 were there any known political opponents there?

MR NYATHIKAZI: Yes, prior to this incident, there were some people who resided at Road 13 who had been our political opponents, but that was no longer the case. The war was over.

CHAIRPERSON: Now, tell me, when you went back to Road 8, you say that you went there to recover the pamphlets and the motor cycle.

MR NYATHIKAZI: That's correct.

CHAIRPERSON: Were you armed?

MR NYATHIKAZI: No I was not armed.

CHAIRPERSON: Did you have intention of fighting with anybody at that time?

MR NYATHIKAZI: No, I did not have any intention at that time.

CHAIRPERSON: Now, when you went up Road 13, did you have any intention of fighting with anybody?

MR NYATHIKAZI: No, there was no intention.

CHAIRPERSON: Now I see in your affidavit, you say that you did not - well, Ms Mohamed, this affidavit that I have is not signed.

MS MOHAMED: Sorry, Mr Chairman, the statement.

CHAIRPERSON: Well whatever, it's not signed. Have you got one that's signed?

MS MOHAMED: I'm sorry ...(indistinct), but the contents have been read to him and he understood and confirmed that.

CHAIRPERSON: Well, can I rely on the contents in order to ask him certain questions?

MS MOHAMED: Yes, Judge.

CHAIRPERSON: I see in this statement that you intend signing, you say you associated yourself with the ultimate action of killing the deceased on the basis that it was political. Now I need you to deal with the following issue. If you had no intention while being in Road 13 of even fighting with anybody, how could you associate yourself with the killing, on whatever basis?

MR NYATHIKAZI: At the time that he was killed, I was also present.

CHAIRPERSON: But you had no intention to kill him, isn't it?

MR NYATHIKAZI: No, I did not.

CHAIRPERSON: You didn't even have any intention of fighting with him?

MR NYATHIKAZI: No, I had no intention of fighting with him.

CHAIRPERSON: And actually you don't know why he was killed?

MR NYATHIKAZI: I learned about it later during that day.

CHAIRPERSON: Ja, but at the time when he was killed, you didn't know why he was killed?

MR NYATHIKAZI: At that time I did not know the reason.

CHAIRPERSON: And you did not contribute to his death, is that not so, in any way?

MR NYATHIKAZI: I did not contribute anything.

CHAIRPERSON: Yes, Ms Mohamed.

MS MOHAMED: Thank you Mr Chairman. Mr Nyathikazi, I'm going to take you back to a point earlier in your evidence when you said that, this is the point at which Mondo's girlfriend made some eye signs and you followed her gaze to a point where you noticed people standing next to a tree and there was a certain house alongside this and Mondo then went inside that house.

MR NYATHIKAZI: Yes, that's what happened.

MS MOHAMED: Okay, now where were you when this was happening?

MR NYATHIKAZI: I was standing on the road with Robert Sitembiso.

MS MOHAMED: Do you know why Mondo went into that house?

MR NYATHIKAZI: Yes, Mondo went in there to shoot at the deceased.

MS MOHAMED: Do you know whose house that was?

MR NYATHIKAZI: I only knew the son by the name of Hewa who resided at that home, who was a taxi driver.

MS MOHAMED: Okay now when Mondo went into that house, what did you do?

MR NYATHIKAZI: I remained standing on the road. When the gun shots went off, we all scattered in different directions.

MS MOHAMED: Could you see who was firing the gun shots?

MR NYATHIKAZI: Yes.

MS MOHAMED: And who was that?

MR NYATHIKAZI: It was Mondo Mkhize.

MS MOHAMED: Now when you said that you heard the gunshots going off, you all scattered. Where did you go to?

MR NYATHIKAZI: I ran towards Road 14.

MR LAX: Sorry, can I just interpose. Why did you run away?

MR NYATHIKAZI: I could not tell who was shooting who because I began to hear gun shots from the direction of the tree.

MR LAX: But you've just said that you saw Mondo shooting.

MR NYATHIKAZI: That's correct.

MR LAX: So who else was shooting?

MR NYATHIKAZI: I did not see anybody else shooting.

MR LAX: So again, why did you run away?

MR NYATHIKAZI: I was trying to save myself, because the bullets were flying all over.

MR LAX: Was that because Mondo was shooting randomly?

MR NYATHIKAZI: He was shooting towards the deceased.

MR LAX: Well then how could bullets be flying all over, if he was shooting at the deceased and not in your direction?

MR NYATHIKAZI: There were shots that were coming from the direction of the tree and I was not sure if the people at that house were also returning fire, but I did not see anyone.

MR LAX: You didn't see anyone shooting at you.

MR NYATHIKAZI: No, I did not see anyone shooting at us.

MR LAX: Did you see any flashes of gunfire coming from that house?

MR NYATHIKAZI: No, I did not see any gunfire because there was a fence.

MR LAX: Please continue.

MS MOHAMED: Thank you.

MR NYATHIKAZI: I fled and later met Robert Sitembiso and Mondo Mkhize. I inquired if no one amongst them was injured and they confirmed that no one had been injured.

CHAIRPERSON: What is Robert's surname?

MR NYATHIKAZI: Ngobane.

MS MOHAMED: What else did they tell you?

MR NYATHIKAZI: It's only Mondo who told me that he has shot at the deceased and he was not sure whether he had died.

MS MOHAMED: So when did you hear that the deceased had died?

MR NYATHIKAZI: I heard when I was informed that police had been at my home.

MS MOHAMED: Mr Nyathikazi, I'm going to take you to an affidavit in this bundle ...(intervention)

CHAIRPERSON: Before you carry on there, when you were in Road 13 and Mkhize's girlfriend indicated the presence of these people, as I understand you, you say this group of people were standing near a tree.

MR NYATHIKAZI: Yes.

CHAIRPERSON: And at some stage during your testimony, you said you could not see who was actually shooting, because they were at this tree, did I understand you correctly?

MR NYATHIKAZI: Will you please repeat?

CHAIRPERSON: For some reason you could not see who was shooting there in Road 13, correct?

MR NYATHIKAZI: I said Mondo was shooting but I did not see anybody from amongst those people who was shooting.

CHAIRPERSON: Well, did you know who these people were?

MR NYATHIKAZI: I just knew the girls from the township as well as the deceased and Wiseman.

CHAIRPERSON: Could you identify them when you were there standing in Road 13 when Mkhize's girlfriend indicated or pointed to this group of people?

MR NYATHIKAZI: I could clearly identify the men from the clothes that they were wearing on the previous occasion when they shot at us.

CHAIRPERSON: So you knew at that stage that they were possibly armed, correct?

MR NYATHIKAZI: Yes, I did.

CHAIRPERSON: Why didn't you run away at that stage already, because last time you had met them, they were shooting at you?

MR NYATHIKAZI: As I have mentioned before, there was a tree that blocked my view and they were also in the company of women, so I did not know whether they were armed.

MR LAX: But these were the people who had given you trouble before.

CHAIRPERSON: Shortly before.

MR LAX: According to you, at any rate.

MR NYATHIKAZI: Yes.

CHAIRPERSON: So why didn't you run away from your attackers, people who were not your friends, they were trying to kill you.

MR NYATHIKAZI: As I have already mentioned there were women, but I was worried because I realised that Zwelibanzi was amongst them. This also happened very quickly, because when Mondo went inside the house, went inside the yard, he just started shooting and that was when I ran away.

MR LAX: How far were you standing from this house where the tree was in the garden?

MR NYATHIKAZI: I was on the road, perhaps on that opposite wall to where I'm sitting.

MR LAX: About four, five metres, just the width of an ordinary road?

MR NYATHIKAZI: Yes, it was a tarred road.

CHAIRPERSON: Did you know Mkhize was going to go there and shoot the deceased?

MR NYATHIKAZI: I did not know that he was going to go in there.

MR LAX: Did you not know that that was the deceased's girlfriend's house?

MR NYATHIKAZI: I did not know that.

MR LAX: But you knew the deceased.

MR NYATHIKAZI: yes, I knew him.

MR LAX: Well, didn't you know who his girlfriend was, if you knew him?

MR NYATHIKAZI: No, I did not know his girlfriend, I only learned about it at the trial.

MS MOHAMED: Mr Nyathikazi, I'm going to take you now to the bundle of documents. Isn't it correct that you are aware that Mondo Mkhize has put up an affidavit which is included in this bundle?

MR NYATHIKAZI: Yes, I'm aware of it.

MS MOHAMED: Now in that affidavit on page 20 in paragraph 11 Mr Mkhize sets out the reason for killing the deceased. Now do you care to comment on that paragraph?

MR NYATHIKAZI: I would say that I was not aware that Mondo was going to do anything to the deceased, because as we had been together, he had not shown any signs of wanting to harm anyone.

MR LAX: Yes, you were asked to comment on the reason he gives here and the reason he gives here is that there was a grudge between them. He says he killed him out of a grudge, as mentioned earlier on, which I do not consider as political from my point of view. That's what you were asked to comment on.

MR NYATHIKAZI: As I've already mentioned, I met Mondo on the way. He did mention afterwards that he had killed the deceased because of a certain grudge, because the deceased had killed his friend. I think what he wrote here was advancing his reasons that he had a grudge against the deceased and for him it was not politically motivated.

MS MOHAMED: Isn't it correct that you associated yourself with the death of the deceased in this matter?

MR NYATHIKAZI: Yes, I did associate myself with his death because when he was killed, I was also present, that is why I have applied for amnesty, for the reason that I was present when Mondo shot Zwelibanzi.

CHAIRPERSON: I've never known a "deader" horse to rise.

MS MOHAMED: Sorry Mr Chairman. Mr Nyathikazi, there's also an affidavit in this bundle which has been put up by Wiseman Ntuni.

MR NYATHIKAZI: Yes.

MS MOHAMED: Now in his affidavit he says that Zwelibanzi was still a member of MK as at the date of his death.

MR NYATHIKAZI: I believe he has written so because the deceased was his brother and also for the reason that he had been to exile.

MR LAX: Could I ask a question? If you had a problem with this deceased, why didn't you just call him before the Comrades Committee of MK as existed in most places, and arrange for him to be disciplined according to your code? If he was a comrade who was behaving badly, why didn't you just call him before the Street Committee or before the MK Committee?

MR NYATHIKAZI: His behaviour indicated that he was no longer part of MK. He behaved like an askari, so it was not easy to call him to a meeting where there would be people who would not necessarily be his comrades.

MR LAX: Well, did you at least report him to your committee?

MR NYATHIKAZI: Yes.

MR LAX: And what did you do ...(indistinct - speaking simultaneously) Please continue.

MR NYATHIKAZI: Ms Mohamed we're waiting for you.

MS MOHAMED: Oh I'm sorry Mr Chairman. Mr Chairman, I have no further questions.

CHAIRPERSON: Mr Panday, have you any questions?

MR PANDAY: In the light of the evidence produced, not too many questions at all.

CHAIRPERSON: I'm surprised that you have one.

CROSS-EXAMINATION BY MR PANDAY: Mr Nyathikazi, isn't it correct that when the incident at Road 8 had completed, or when you were attacked in Road 8, that incident was completed and you had no intention of seeking any form of retribution?

MR NYATHIKAZI: I did not have any intention of retribution.

MR PANDAY: And isn't it also correct that you came across Mondo Mkhize by chance on the day in question?

MR NYATHIKAZI: Yes, it was not pre-planned.

MR PANDAY: And you would have no idea of what sort of plan Mondo Mkhize had against Zweli Ntuni?

MR NYATHIKAZI: No, I did not.

MR PANDAY: So finally isn't it correct that based on your evidence there is no way that you can be associated with the killing of Zweli Ntuni?

MR NYATHIKAZI: What associates me with his death is the fact that I was present when he was shot.

MR PANDAY: Isn't it also correct then that the killing of Zweli Ntuni by Mondo Mkhize was not political?

MR NYATHIKAZI: As far as Mondo is concerned, it was not politically motivated, but that does not apply to me.

MR PANDAY: Why do you say it does not apply to you? You had no idea that Zweli was going to be killed on that day.

MR NYATHIKAZI: I did not know.

MR PANDAY: So if you did not know Zweli was going to be killed on that day, you cannot know about his intentions.

MR NYATHIKAZI: I did not know what he had intended.

MR PANDAY: Now the family of Zwe Ntuni maintains that Zwe was an ANC member and supporter right up until the day he was murdered. Why do you suggest differently?

MR NYATHIKAZI: I believe that Zwelibanzi in whatever he did, he may not have told them what his activities were at the time. I may understand that they are heartbroken because they lost their son.

MR PANDAY: When did you learn that he is no longer an ANC member? In what year did you learn this?

MR NYATHIKAZI: It was after a while.

MR PANDAY: In what year? Can you recall the year that you learned that he was no longer ANC according to you?

MR NYATHIKAZI: In 1993.

MR PANDAY: And did you report this to anybody?

JUDGE POTGIETER: It's hearsay, why must we - what is the value of this, he heard somebody say something?

MR PANDAY: I accept, Mr Chairman.

JUDGE POTGIETER: How does it help us?

MR PANDAY: I accept the point Mr Chairman. Thank you Mr Nyathikazi, nothing further.

MS THABETHE: Just a few questions.

CROSS-EXAMINATION BY MS THABETHE: Mr Nyathikazi, according to a statement written by Lindiwe, the girlfriend to the deceased on page 29, she says she saw you, amongst others, and she took note of you because she knew you to be their enemies - to be enemies with and you were harassing the deceased, Nkosinati Ntuni. Do you want to respond to that?

MR NYATHIKAZI: As a girlfriend, she had lost her loved one so she could very well say anything.

MS THABETHE: And you were not enemies?

MR NYATHIKAZI: No, we were not enemies.

MS THABETHE: ...(indistinct)

MR NYATHIKAZI: No, I did not.

MS THABETHE: Also I just want to clarify one more factor. According to Noma Langa in her statement on page 33 of the bundle and Mantombi Ngobane on page 36, they both say that they saw you together with a group, you were all carrying guns, hand guns, yet in your evidence you've stated that you did not carry a gun. What ...(indistinct - speaking simultaneously)

MR NYATHIKAZI: I was not carrying a firearm. She may have seen us on the street, but it is not true that I was carrying a firearm.

MS THABETHE: Thank you Mr Chair.

MS MOHAMED: I have no questions Mr Chairman.

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

CHAIRPERSON: Ms Mohamed, are there any other witnesses you're going to call?

MS MOHAMED: No, Mr Chair.

CHAIRPERSON: Mr Panday, have you got any witnesses to call.

MR PANDAY: Mr Chairman, it's just the brother of the victim. I'll just be very brief with him and that's merely to confirm his continued existence with the ANC.

CHAIRPERSON: Whatever, I mean you can call him.

MR PANDAY: Wiseman Ntuni.

WISEMAN BHEKI NTUNI: (sworn states)

EXAMINATION BY MR PANDAY: Mr Wiseman Ntuni, what is your relationship to the deceased Zwe Ntuni?

MR NTUNI: He was my brother.

MR PANDAY: Is it correct that you had deposed to an affidavit for the purposes of the application of Dannyboy Nyathikazi, opposing the application?

MR NTUNI: That's correct.

MR PANDAY: I'm just showing you pages 26, from page 26 to 27, is that the affidavit that you've deposed to?

MR NTUNI: Yes, it is.

MR PANDAY: And do you confirm the contents of that to be true and correct?

MR NTUNI: Yes, I do.

MR PANDAY: Now in the evidence given by the applicant, he alleges that your brother Zwe Ntuni had defected from the ANC. Can you comment on that evidence?

MR NYATHIKAZI: He had not defected, he was still a member of the ANC.

MR PANDAY: And more particularly on the day that he was murdered, was he still a member of the ANC?

MR NTUNI: Yes, he was.

MR PANDAY: Now in your affidavit in paragraph 4 you mention of there being gangs, Mondo and his gang, now do you know what effect this gang had on your brother, or were there any problems between this gang and your brother?

MR NTUNI: They were a group of gangsters who used to shoot at one another in the township.

MR PANDAY: When you say: "They were a group of gangsters), who are you referring to?

MR NTUNI: I would say all of them belonged to different gangs, because Dannyboy belonged to one group and my brother to another, but this had nothing to do with the ANC.

CHAIRPERSON: What kind of gangs were they, tsotsies?

MR NTUNI: Yes.

CHAIRPERSON: Interfered with the community and to fight against each other?

MR NTUNI: They were fighting amongst one another.

CHAIRPERSON: Nothing to do with politics?

MR NTUNI: No, it had nothing to do with politics.

MR PANDAY: So at the time your brother, although he was member of the ANC, he was very much involved in a gang, is that correct?

MR NTUNI: Yes, he was a member of a gang, although he also belonged to the ANC.

MR PANDAY: And the gang that he belonged to was in conflict with other gangs in the area?

MR NTUNI: No, they were not in conflict.

MR PANDAY: Do you know of any problem that existed between Mondo's gang and his gang?

MR NTUNI: I do not know what was the problem between them.

MR PANDAY: Now is it correct that you are opposing the application being brought by Dannyboy Nyathikazi?

MR NTUNI: Yes, I am opposing the application.

MR PANDAY: Can you state the reason for you opposing the application?

MR NTUNI: Firstly, I would say Mr Nyathikazi has told lies before the Committee.

MR PANDAY: What sort of lies has he told?

MR NTUNI: That my brother had defected, had become an askari. What is an askari?

MR PANDAY: What other lies has he spoken?

MR NTUNI: This re-opens old wounds.

MR PANDAY: We need you to help us, Wiseman. Can you think of any other lies that's he's given in his evidence?

MR NTUNI: The lie that my brother was an askari. Also that he was standing on Road 13. How could he have seen him? It is also a lie that my brother was preventing people from canvassing for the elections.

CHAIRPERSON: How do you know that that didn't happen?

MR NTUNI: How could he do that? Because he was young, I would have known about it.

MR PANDAY: Now tell me, the area that your brother lived in and the area that the applicant says they were canvassing, what political party dominated the areas?

MR NTUNI: It was the ANC.

MR PANDAY: Now do you believe that the murder of your brother was politically motivated?

MR NTUNI: No.

MR PANDAY: Thank you Mr Ntuni, no further questions.

CROSS-EXAMINATION BY MS MOHAMED: Thank you Mr

Chairman. Thank you Mr Ntuni. Mr Ntuni it has been your evidence that the applicant was part of a criminal gang. Now it's Mr Nyathikazi's instructions to me that he was never part of any criminal gang, can you comment on that?

MR NTUNI: He is lying.

MS MOHAMED: Thank you Mr Chairman, I have no further questions.

CHAIRPERSON: Ms Thabethe.

MS THABETHE: No questions Mr Chair.

CHAIRPERSON: Have you got any re-examination Mr ...

MR PANDAY: No, Mr Chair.

CHAIRPERSON: Yes, thank you, Mr Ntuni. You are excused.

CHAIRPERSON: Have you got any more witnesses Mr ...

MR PANDAY: Yes, Mr Chairman, we call Mondo Mkhize.

CHAIRPERSON: Who is that?

MR PANDAY: That is the first accused in the matter, Mr Chairman. But before we call him, Mr Chairman, could we have a short recess just to confirm with him certain issues?

CHAIRPERSON: What is the point of calling him?

MR PANDAY: Well Mr Chairman, he was the accused ...

MR LAX: We know who he was. You can rest assured we know who he was. The Chairperson's question stands.

MR PANDAY: He'll merely verify the sequence of events that took place on the day in question.

CHAIRPERSON: Well has the been put in dispute?

MR PANDAY: It might not be so, it serves no purpose to call him as such.

CHAIRPERSON: Have you got any other witnesses?

MR PANDAY: No Mr Chairman.

CHAIRPERSON: Ms Thabethe, have you got any witnesses?

MS THABETHE: None at all, Mr Chair.

CHAIRPERSON: Is that the end of the evidence? Looks like it. Ms Mohamed, have you got any submissions to make?

MS MOHAMED IN ARGUMENT: Mr Chairman, apart from saying the evidence has been led and the applicant still seeks amnesty, I can't take it any further. Thank you.

CHAIRPERSON: Mr Panday, we don't need to hear you, nor do we need to hear you.

MR PANDAY: No, I will keep quiet Mr Chairman.

CHAIRPERSON: Thank you. We'll reserve Judgment in this matter and we'll hand a decision down in due course.

MS MOHAMED: As the Committee pleases.

-------------------------------------------------------------------------CHAIRPERSON: I understand this is the Mthwana application. The Panel is the same as before. I just need to ask the representatives to identify themselves on record for the purposes of that record.

MS MOHAMED: Thank you Mr Chairman. My name's Ms Mohamed from the firm Dehal Incorporated, on record for the applicant.

CHAIRPERSON: Is there no appearance for any victim?

MS THABETHE: No Mr Chair, the victims could not be traced.

CHAIRPERSON: Are you satisfied that there were sufficient attempt to find the victims?

MS THABETHE: Yes, Mr Chair, I am. There were adverts in the newspaper.

PAULUS MTHWANA: (sworn states)

MS MOHAMED: Thank you Mr Chairman.

EXAMINATION BY MS MOHAMED: Mr Mthwana, I show you a typed statement, a two page statement which you have signed. Do you confirm the correctness of that statement?

MR MTHWANA: Yes, I do.

MS MOHAMED: Now Mr Mthwana, I'm going to take you to the bundle of documents. On pages 1 to 3 is your application form. Now look at page 1, do you confirm that it correctly reflects the details?

MR MTHWANA: Yes, it does.

MS MOHAMED: Okay, look at page 2. Are the details correctly reflected on this page?

MR MTHWANA: The first paragraph is not correct, as well as the paragraphs below.

MS MOHAMED: So the first paragraph, in other words paragraph 9(a)(iv) is incorrect?

MR MTHWANA: Yes.

MS MOHAMED: Okay and which other paragraph, if you could point me to it.

MR MTHWANA: Paragraph 10(a).

MS MOHAMED: Okay. Now 9(a) reads:

And then 10(a):

Now what's incorrect about that Mr Mthwana?

MR MTHWANA: The reason for robbing the car was not to buy arms, but to go and collect weapons.

MS MOHAMED: Okay. Now look at page 3. Does page 3 correctly reflect the details of your application on this page?

MR MTHWANA: There are some inaccuracies. It is not Sipo Ncumalo but Nhlanhla Gumede, at paragraph 11(b).

MS MOHAMED: So paragraph 11(b) should not be Sipo Ncumalo but - sorry, I couldn't get that first name.

MR MTHWANA: ...(indistinct - mike not on)

MS MOHAMED: Thank you. Now Mr Mthwana, ... (interven-tion)

CHAIRPERSON: Well before you carry on. Mr Mthwana, this application form, did you complete it?

MR MTHWANA: I am the person who filled in the form, but I was in the company of others.

CHAIRPERSON: No, but you completed it?

MR MTHWANA: I filled in some of the details.

CHAIRPERSON: But the writing in this application form seemed to indicate that it was completed by the same person, it is the same handwriting. I'm not a handwriting expert, but just looking at these three pages, they seem to have been completed by the same person.

MR MTHWANA: I'm not sure about the handwriting, but I just wanted to correct some inaccuracies.

MS MOHAMED: Mr Mthwana, who filled in this form? Who physically wrote in the answers to these questions?

MR MTHWANA: I filled in page 1 as well as page 3, but I'm not sure about page 2.

CHAIRPERSON: Okay. Look at the top paragraph on page 2. It's sub-paragraph (iv) of 9(a). Have you got it?

MR MTHWANA: Yes.

CHAIRPERSON: Who filled in that? Is that your handwriting or somebody else's handwriting?

MR MTHWANA: It's not my handwriting.

CHAIRPERSON: And 10(a)?

MS MOHAMED: Who wrote in paragraph 10(a) Mr Mthwana?

MR MTHWANA: I do not recall clearly, because this was done in 1997.

CHAIRPERSON: And 9(a), who wrote that in?

MR MTHWANA: Page 2?

CHAIRPERSON: Page 1.

MR MTHWANA: Page 1. It's me.

CHAIRPERSON: You. Are you sure of that?

MR MTHWANA: Yes.

CHAIRPERSON: Now look how the words armed robbery have been written and compare that to sub-paragraph 4 on the top of page 2. Would that not have been the same person?

MR MTHWANA: The contents are almost true, but not 100% accurate.

MR LAX: The question was, who wrote it, Mr Mthwana and what was put to you by the Chairperson was, do they not look the same? Look at the words armed robbery at the top of page 2 and the words armed robbery at 9(a)(i), which you've agreed is your handwriting and the question is, don't they look exactly the same?

MR MTHWANA: It does look similar, but the contents do not reflect ...(intervention)

CHAIRPERSON: No we're not asking - we'll come to the contents. We're talking about who filled them in. Who wrote in them? Didn't you fill in this form yourself?

MR MTHWANA: I did fill it in, page 1 and 3.

CHAIRPERSON: What about 10(a)? Did you fill that in or not, on page 2?

MR MTHWANA: No.

CHAIRPERSON: And 10(b)? Is that your handwriting?

MR MTHWANA: I am not happy with page 2.

CHAIRPERSON: I'm not concerned as to whether you're happy with it. I'm asking if it's your handwriting at 10(b). It's not yours? Is it?

MR MTHWANA: It's not my handwriting.

CHAIRPERSON: What on page 2 is your handwriting then? Nothing?

MR MTHWANA: No.

CHAIRPERSON: So page 2 is a forgery?

MR MTHWANA: I didn't write that.

CHAIRPERSON: Page 2 is a forgery then? You didn't write it.

MR MTHWANA: Yes.

CHAIRPERSON: Why is that? Why did you fill in page 1 and page 3 and somebody else filled in page 2?

MR MTHWANA: I cannot recall clearly because this occurred in 1997.

CHAIRPERSON: Why not? Why can't you recall?

MR MTHWANA: This was done in a hurry, so I cannot recall quite well.

CHAIRPERSON: You signed this document at the end, is that right?

MR MTHWANA: Yes.

CHAIRPERSON: You signed it and you were satisfied with the contents of this application before you signed it.

MR MTHWANA: I was satisfied with what I had written.

CHAIRPERSON: No that's not the question. Were you satisfied with the whole of the application before you signed it?

MR MTHWANA: I was satisfied with what I'd written.

CHAIRPERSON: And you were aware of the contents at the time you signed it, correct?

MR MTHWANA: I was aware of what I had written.

CHAIRPERSON: I'm not talking about what you had written only, the whole of the application. Before you signed it you were satisfied with the contents of this document, as I understand your evidence.

MR MTHWANA: Yes.

CHAIRPERSON: And you were aware of the contents of paragraphs 9(a)(iv) and 10(a) when you signed this document, correct? Now you've just said, before you signed it you were aware of the contents of this document. If you weren't satisfied with the contents of paragraphs 9(a)(iv) and or 10(a), then why did you sign it?

MR MTHWANA: Let's just turn to page 6.

MR LAX: We're dealing with page 2 Mr Mthwana. Changing the page is not going to help at this point.

CHAIRPERSON: I understand that, but the corrections have been made on page 6.

CHAIRPERSON: I'm not concerned about the corrections yet. I'm asking you why you signed this document if there was incorrect information on it. That's what I'm asking you. You ...(indistinct) an opportunity to testify about the corrections. I'm asking you why you signed a document that wasn't correct.

MR MTHWANA: I cannot say, but at that time I was in prison and did not have time to read through everything. I was fortunate to even receive and fill in that form as well as to hear about the TRC, but we did not have enough time.

CHAIRPERSON: Tell me, is your answer that you cannot remember why you signed a document that was incorrect?

MR MTHWANA: I would like to explain that I did not have time to read through this document to identify those mistakes. It was only when Mr ...(indistinct) returned to the prison, that I could identify the mistakes.

CHAIRPERSON: No, you've already told us that you were aware of the contents of these paragraphs before you signed. I've asked you then as a result why you signed an incorrect document. I'm going to give it one more chance. Are you able to tell us why you signed a document that contained, as far as you're concerned, incorrect allegations?

MR MTHWANA: I will repeat what I've already stated, that I did not have time to read through it.

CHAIRPERSON: Ms Mohamed, do you want to carry on?

MS MOHAMED: Thank you Mr Chairman. Mr Mthwana, you said when Mr Mbatha came to prison, you pointed out these corrections to him. Can you take us to the relevant corrections that were made?

MR MTHWANA: On the 3rd of February 1993 we held a meeting discussing on how best to protect the community of Chesterville.

MS MOHAMED: I asked you particularly about Mr Mbatha coming to prison. You said earlier to the Chairman that when he came to prison you pointed out these "incorrections" to him.

MR MTHWANA: That's correct.

MS MOHAMED: So where is it in this bundle of documents?

MR MTHWANA: I rectified the issue of the vehicle on page 6, paragraph 2.

MS MOHAMED: Mr Mthwana, isn't it correct that you were convicted of this offence and sentenced to 10 years imprisonment?

MR MTHWANA: That's correct.

MS MOHAMED: Isn't it also correct that you have served your term of imprisonment and you have been released from prison in March this year?

MR MTHWANA: That's correct.

MS MOHAMED: In the early 1980's, were you a member of any political party?

MR MTHWANA: I was a member of the UDF.

MS MOHAMED: What was your role within the UDF?

MR MTHWANA: I was a martial.

MS MOHAMED: Okay. Now I take you to this day of the incident, the 6th of February 1993. Were you in the vicinity of Pinetown on that day?

MR MTHWANA: That's correct.

MS MOHAMED: Why were you there?

MR MTHWANA: We were looking for a vehicle that would assist us in collecting weapons from eMbali in Pietermartizburg.

MS MOHAMED: Who was with you at the time?

MR MTHWANA: Stanley Nhlanhla Gumede.

MS MOHAMED: Okay and then what happened at about 6 p.m. that evening?

MR MTHWANA: I pointed a firearm at a white person who was sitting at the back seat of a vehicle.

CHAIRPERSON: Tell me, did you commit this offence under the auspices of the United Democratic Front?

MR MTHWANA: It happened for the reasons that we needed to collect firearms to protect our community.

CHAIRPERSON: Did you do this under the auspices of the United Democratic Front?

MR MTHWANA: I do understand.

CHAIRPERSON: Please answer the question.

MR MTHWANA: Yes, we did it for that reason.

CHAIRPERSON: Under the auspices of the UDF? Under the flag of the UDF?

MR MTHWANA: It was under an order of a member of the Execution.

CHAIRPERSON: Of the UDF, or who?

MR MTHWANA: It was an Executive member of the ANC from Chesterville.

CHAIRPERSON: When did you join the ANC?

MR MTHWANA: In 1990.

CHAIRPERSON: Okay, carry on.

MS MOHAMED: Mr Mthwana, who from the ANC structures gave you this order?

MR MTHWANA: It was Saga Gumede.

MS MOHAMED: When did he give you this instruction?

MR MTHWANA: We were together at a meeting where the issue of collecting these firearms was discussed.

CHAIRPERSON: Do me a favour will you then look at page 6 paragraph 1. There you say there were no real orders given my Mr Ncumalo, but "it is something that we discussed and agreed upon". How do you explain that if you now say in your latest statement that whatever you did was as a result of an order given to you and Stanley Gumede by Mr Saga Gumede?

MR MTHWANA: I did explain that everything that took place happened as a result of an instruction given by Saga Gumede. What is referred to here is what happened at - what was discussed at a meeting.

MR LAX: Nowhere in page 6 or 7 do you even mention Saga Gumede. That was supposed to be your affidavit that you were correcting your application. You don't mention his name at all. If he's the man who gave you the order, why didn't you say he gave you the order there and then while you were correcting your application.

CHAIRPERSON: Well has Saga got another name?

MR LAX: You see, you went so far as to correct Sipo Ncumalo and say in fact there was no Sipo, it's in fact Sifiso. Now that's the person who you said gave you the order and that's the person whose name you were trying to correct, but you don't correct it properly and say well in fact it was Saga Gumede who gave us the order. Do you see our difficulty?

MR MTHWANA: Yes, I understand.

MR LAX: Can you explain this please?

MR MTHWANA: With regards to Sifiso Ncumalo, he was present at the meeting but he is not the one who issued the instruction. It was Saga Gumede who did so.

CHAIRPERSON: No, let's get one thing straight. Was there an instruction to commit this offence, or not?

MR MTHWANA: An instruction was issued by Saga Gumede.

CHAIRPERSON: Now on page 6 of the bundle, it is what I can term your corrective affidavit. Paragraph 1, you clearly say that there were no real orders given by Mr Ncumalo, but it is something we discussed and agreed upon. Now can you explain that problem, or can you deal with it as best you can?

MR MTHWANA: Perhaps Mr Mbatha did not understand me correctly, because Mr Ncumalo was present at the meeting.

CHAIRPERSON: Did you sign this affidavit? I see it's not signed in my ...(intervention)

MS MOHAMED: Sorry Mr Chairman, I think the hand-written one is signed.

CHAIRPERSON: Ja. Correct. Now when you signed this one, is it correct you were not stifled by time constraints, as you say you were when you filled in the original application form?

MR MTHWANA: Yes, it is clear.

CHAIRPERSON: Ja. What standard did you pass in school?

MR MTHWANA: Standard 9.

CHAIRPERSON: Did you learn to read and write English at school?

MR MTHWANA: Yes.

CHAIRPERSON: Were you able to read this document, this corrective document before you signed it?

MR MTHWANA: Yes.

CHAIRPERSON: Did you in fact read it before you signed it?

MR MTHWANA: No, I did not read it.

CHAIRPERSON: Why not?

MR MTHWANA: There was no reason for me to read it.

CHAIRPERSON: You were going to sign it and being a corrective affidavit, I would have thought that you would have read it before you signed it, but be that as it may, you say you did not read it, you nonetheless signed it, correct?

MR MTHWANA: Yes.

CHAIRPERSON: Were you satisfied that you corrected the issues that you were unhappy with in your original application?

MR MTHWANA: As far as I knew, they had been corrected.

CHAIRPERSON: Ja. Now when you made the statement that was handed up here before you signed it, it seems to be your latest statement, were you aware of the contents of the affidavit that appears on page 6 and thereafter in the bundle?

MR MTHWANA: We were discussing it with Mr Mbatha.

CHAIRPERSON: Ja. Now when you made this last statement ...(intervention)

MR MTHWANA: Chairperson, he was writing what I had been telling him, so I may not be in a position to dispute whatever he wrote. He may have made mistakes. For example, I encountered a problem with that question as regards to orders, because there was an order that was issued, so I do not know how best to explain it.

CHAIRPERSON: Was there an order or wasn't there an order?

MR MTHWANA: As I've already mentioned, there was an order issued. I would like to explain that.

CHAIRPERSON: Now when you made your last statement to your attorney, were you aware of the contents of the affidavit you made to correct your application?

MR MTHWANA: No, my attorney asked me to read it.

CHAIRPERSON: And did you read it?

MR MTHWANA: Yes, I did.

CHAIRPERSON: Paragraph 1 you read.

MR MTHWANA: Yes.

CHAIRPERSON: And in that paragraph you understood that there you said there were no real orders given to commit any of these crimes, that it was something that you agreed with, is that not so?

MR MTHWANA: Yes.

CHAIRPERSON: Yet, despite that, that being an affidavit that has been commissioned, you tell your attorney yes, there was an order.

MR MTHWANA: Yes.

CHAIRPERSON: Now are you able to explain that, or can't you?

MR MTHWANA: What are you referring to?

CHAIRPERSON: The conflict between what you said in your affidavit and what you told your attorney. You see, it's important for us to know whether there was an order or not, why you acted the way you did. Now in your own evidence, your own papers there's a conflict as to whether there existed an order or not.

MR MTHWANA: There is not much I can say, but there is something mentioned on page 12 about order, I just tried to explain.

CHAIRPERSON: What about it?

MR MTHWANA: Page 12 explains about Saga Gumede and what happened with regards to this case.

CHAIRPERSON: Yes, Ms Mohamed.

MR LAX: Can I just raise one other small thing? Sorry. In your 2nd affidavit, the one that you made to your lawyer, you make no mention of Ncumalo at all. Why is that? If he was present when this order was given and if you were trying now to correct the mistakes that you'd made in your correcting affidavit, why did you leave him out of the picture completely?

MR MTHWANA: I understand your question. I was just explaining that Mr Ncumalo was at the meeting.

MR LAX: Just before we finish, on page 12, the third affidavit now, this was a further attempt by Mr Mbatha to correct your previous affidavits and get further information from you, isn't that so?

MR MTHWANA: That's correct.

MR LAX: Now here you say Saga Gumede was one of the ANC members, was one of the victims, he's now deceased. Another of the victims was Zwe Ntuni from Road 18. That's the very same deceased we heard about in the previous matter, isn't it?

MR MTHWANA: Yes.

MR LAX: So weren't you just part of these gangs that were operating there in Chesterville at that time, as we've heard from the last case? One gang fighting another gang? Isn't that so?

MR MTHWANA: No, I was just a member of the community.

MR LAX: Carry on.

MS MOHAMED: Thank you. Mr Mthwana isn't it correct that you came to our offices for a consultation last Wednesday the 23rd of August?

MR MTHWANA: That's correct.

MS MOHAMED: Isn't it also correct that at that consultation I handed a copy of this bundle to you?

MR MTHWANA: That's correct.

MS MOHAMED: So you retained a copy?

MR MTHWANA: That's correct.

MS MOHAMED: Okay. Now isn't it also correct that the two page statement which I have handed to the Committee prior to the commencement of this hearing, was given to you earlier this morning for you to read and to verify the contents?

MR MTHWANA: Yes, that's correct.

MS MOHAMED: And isn't it also correct that after reading same and saying to me that you understood it, you signed it?

MR MTHWANA: Yes, I understood it and signed it.

MS MOHAMED: Okay thank you. I'm now going to take you back to this incident, the 6th of February 93. You earlier said to us that you were in the vicinity of First National Bank in Pinetown and you approached a white female and you had a firearm with you. Can you tell us what happened at that stage?

MR MTHWANA: On the 6th of February 1993, I and Nhlanhla Gumede took a vehicle from the vicinity of FNB in Pinetown, to collect firearms in Pietermaritzburg. The car was found on the 8th.

MS MOHAMED: Okay now when you and Mr Gumede got into the car, where did you go to?

MR MTHWANA: We then collected Saga Gumede and proceeded to go get the firearms.

MS MOHAMED: Now why was it necessary for you to collect Saga Gumede to go with you?

MR LAX: You're speaking English, so you're not going to get a translation. To repeat, he said: "As a main man, he knew eMbali township"

MS MOHAMED: When you reached eMbali, what happened?

MR MTHWANA: We collected the firearms and returned.

MS MOHAMED: Did you know the person from whom you collected the firearms?

MR MTHWANA: No, I did not know him.

CHAIRPERSON: Tell me, do you know that there was gang warfare in the area also at that time?

MR MTHWANA: I do not have knowledge thereof.

CHAIRPERSON: You don't know about gang warfare in the area? You say you were an activist ...(intervention)

MR MTHWANA: What I know is about the A Team, who were opponents of the political organisation in the area.

MR LAX: You see Mr Mthwana, the A Team operated in 1980's, we know all about the A Team. We've heard hundreds of people talk ...

MR MTHWANA: I would like just ...(indistinct) that they did not stop operating in the township. I know about the A Team and I can explain better about it.

MR LAX: Did you not hear the evidence this morning, both from the applicant and from the family of the deceased, talking about the different gangs and the fact that they were fighting with one another? Remember? You were here.

MR MTHWANA: I was not listening to them.

MR LAX: Are you telling us that you didn't know that was happening in Chesterville, while you were living in Chesterville and you were an ANC martial?

MR MTHWANA: What concerns me is my application here, what they were talking about had nothing to do with me.

CHAIRPERSON: Just answer the question, don't be technical now.

MR LAX: The fact of the matter is that it's a well-known fact that there was gang violence in a number of the townships including Chesterville, including Lamontville, including Umhlazi. It's a well-known fact and you didn't know that.

MR MTHWANA: As far as I know, I'm only aware of what took place in Chesterville with regards to the political situation.

MR LAX: What structure were you part of in Chesterville?

MR MTHWANA: I was a member of the UDF from 1983 when it was launched. I played a role in COSAS which was under the banner of UDF because there were many organisations, including church organisations under the UDF.

MR LAX: I'm talking about ...(intervention)

CHAIRPERSON: I'm not asking you for your history. When you committed this offence under what structure were you acting, if any?

MR MTHWANA: It was the ANC.

CHAIRPERSON: And that meeting, you say now you were ordered, what meeting was that?

MR MTHWANA: It was a special meeting at which the issue of protecting the community was discussed.

CHAIRPERSON: What meeting was that?

MR MTHWANA: A member of the Executive Committee of the ANC was present, so I was not in a position to ask such questions.

MR LAX: So it was just a meeting called by Mr Gumede.

MR MTHWANA: Yes.

MR LAX: Because he was an Executive member of the ANC you just decided, well that's it? You haven't heard of the Self Defence Units that were organised in all the different townships around Durban, around 'Maritzburg, up and down the North and South Coast?

MR MTHWANA: I've heard of them.

MR LAX: But you weren't part of the Self Defence Unit, otherwise you would have told us that.

MR MTHWANA: I was a Martial.

MR LAX: Yes. Well the people who were involved in defending the community were the Self Defence Units and from 1991, they were very organised.

MR MTHWANA: I know about the SDUs, they were operating at other areas. It is true that they protected people against the IFP in Lindelane and other areas.

MR LAX: Mr Mthwana, the ANC organised SDUs in almost every township in this province where they had a presence and in some cases, those SDUs were organised on existing SDUs that had been in existence from 1985 because of the violence in this province. In others they established new ones. That's a historical fact. The fact is, you weren't part of such a structure.

MR MTHWANA: I was.

CHAIRPERSON: The SDU?

MR MTHWANA: I was part of the people who defended the community.

CHAIRPERSON: How did you defend the community?

MR MTHWANA: We countered attacks from the A Team as well as from the Boers who would be in the company of the A Team.

CHAIRPERSON: Carry on.

MS MOHAMED: Thank you Mr Chairman. Mr Mthwana, just to clarify, you were never a member of the SDUs, is that correct?

MR MTHWANA: I have just explained that I was an ANC member who defended the community.

CHAIRPERSON: Mr Mthwana, stop playing games. Your attorney asked you a simple question, give us a simple answer.

MR MTHWANA: I was an ANC member, involved in protecting the community.

CHAIRPERSON: Are you saying you were not a member of the SDU, because you were asked: "Were you a member of the SDU or not?" Now a simple yes or no will suffice.

MR MTHWANA: I was a Martial and that structure fell under the SDU. I was involved in protecting the community. It is clear from page 1 that I was a martial.

CHAIRPERSON: I'm aware that I've seen it. What did you do as a martial?

MR MTHWANA: We were present at meetings to safeguard the people at the meeting as well as to protect the community in general.

CHAIRPERSON: Is that all you did as a Martial?

MR MTHWANA: I also took part in activities that ...(indistinct) assisted the organisation.

CHAIRPERSON: Like what?

MR MTHWANA: Like distributing posters as well as pamphlets.

CHAIRPERSON: As a Martial, what was your main duty?

MR MTHWANA: It was to ensure that there was order in meetings as well as the protection of the community.

CHAIRPERSON: Tell me, from 1983 to 1993, was there ever a big march in Chesterville or in Durban for that matter, organised by the UDF or the ANC? Particularly in 1990.

MR MTHWANA: There are too many to mention.

CHAIRPERSON: Yes. Did you march?

MR MTHWANA: Yes.

CHAIRPERSON: Is that all you did at such marches, march?

MR MTHWANA: I would play the role of marshalling.

CHAIRPERSON: Oh, why didn't you say that when I asked what all did you do as a martial? Because wasn't that the main idea of martial, to control the marches, like long big marches, control attendances at meetings, not so? Isn't it?

MR MTHWANA: That's correct.

CHAIRPERSON: Now just now you answered to a question from your attorney as to whether you knew the area of Chesterville and you said as a main man you did. What did you mean by that? I think you referred to Mr Gumede as a main man. What did you mean by that?

MR MTHWANA: Mr Chairperson, I do not quite understand the question. Please repeat that question.

CHAIRPERSON: What did you mean by calling Mr Gumede a main man?

MR MTHWANA: I am explaining that he is the person who issued the order and he also is the person who issued the order.

MR LAX: We had a repetition of the same thing. You said he's the person who issued the order and he's also the person who issued the order.

INTERPRETER: The mistake is mine. I beg your pardon. The applicant said Mr Gumede was a member of the Executive as well as the fact that he is the one who issued the order.

MS MOHAMED: Thank you Mr Chairman. Mr Mthwana, why was it necessary for you to take Mr Saga Gumede to eMbali?

MR MTHWANA: He was the person who knew the area because I did not know where we were supposed to collect the firearms.

MS MOHAMED: Okay. I'm presuming when you say he's the person who knew the area, the area you're referring to is eMbali?

MR MTHWANA: Yes.

MS MOHAMED: Okay and you earlier said that you had fetched the firearms from eMbali and then what happened to those firearms?

MR MTHWANA: They remained with Mr Gumede.

MS MOHAMED: Which Mr Gumede is this?

MR MTHWANA: Saga Gumede.

MS MOHAMED: Now, Mr Mthwana, I'm sure you might have covered this earlier, but why was there a need to bring these firearms to Chesterville?

MR MTHWANA: I explained that it was in order to protect the community which was not safe.

MS MOHAMED: Now as a means of clarification, when you said to protect the community, whom did the community need to be protected from?

MR MTHWANA: The community was predominantly ANC at the time and they were protected by Marshals and other people.

MR LAX: The question was, who were they protected from? Who was attacking the community that they needed protection? That was the question.

MR MTHWANA: There were vigilante groups such as the A Team who were involved in attacking and killing people at night.

CHAIRPERSON: You talk about vigilante groups, were there more than one?

MR MTHWANA: I am not really in a position to say whether there were many groups because they would be - they would attack the community at night and at most these times they would be wearing balaclavas and they would be in the company of the police.

MR LAX: Did you know Zwe Ntuni?

MR MTHWANA: Yes, I knew him.

MR LAX: Sorry?

MR MTHWANA: Yes, I knew him.

MR LAX: He was killed by the A Team, you say.

MR MTHWANA: I don't know.

MR LAX: Well, what do you mean you don't know?

MR MTHWANA: I was in prison that time he was killed.

MR LAX: But you refer to him in your statement, page 12.

MR MTHWANA: Yes.

MR LAX: You talk about his death at the hands of presumably the A Team. It's not clear from here but ...

CHAIRPERSON: What page is ?

MR LAX: Page 12. Right?

MR MTHWANA: No, it's not right, but I know me, I was in prison that time, I don't know nothing about Zwe, who killed him.

MR LAX: Well where did Mr Mbatha get this information from, if you didn't give it to him? Did he just make it up and then write his own affidavit and then get you to sign it?

MR MTHWANA: No.

MR LAX: Well did you tell him this or didn't you.

MR MTHWANA: No, listen. I know that there was a vigilante group in operation, but I do not know how Zwe was killed because at the time I was in prison.

MR LAX: You see, you say here in paragraph 2:

What gangs were you referring to there?

MR MTHWANA: In this affidavit, I referred to the A Team and Zweli Saga Gumede. I do not know what gangs you are referring to.

MR LAX: Well it's your affidavit. I'm just trying to understand what you were saying. These are your words, they're not my words. Very well, we'll just leave it there. Please continue Ms Mohamed.

MS MOHAMED: Thank you.

MR MTHWANA: I do not understand.

MR LAX: Well, if you're not going to answer my question, then we may as well just continue.

MR MTHWANA: I do want to respond to the question, but I do not understand it.

MR LAX: I'll make it simple for you. In your affidavit here at paragraph 2 on page 12 you refer to gangs in the plural, in other words there was more than one gang. In the one preceding that you refer to the A Team. The question I want to know is, you're referring to gangs in the plural. What other gangs were operating in Chesterville at that time?

MR MTHWANA: The only gang I know of is the A Team. I do not know about the others.

MR LAX: Please continue Ms Mohamed.

MS MOHAMED: Thank you Mr Lax. Mr Mthwana, after the firearms were returned to Chesterville and left with Mr Saga Gumede, what happened to the car that you had stolen?

MR MTHWANA: It was recovered in Inanda.

MR LAX: Well how did it get to Inanda?

MR MTHWANA: It was taken there by Nhlanhla Gumede.

MS MOHAMED: Thank you Mr Chairman, I have no further questions.

CROSS-EXAMINATION BY MS THABETHE: Mr Mthwana, was there any relationship between Saga Gumede and Nhlanhla Gumede?

MR MTHWANA: I do not know about any other things ...(indistinct) relations.

MS THABETHE: What position did Saga Gumede hold in the ANC?

MR MTHWANA: He was in the Executive Committee, but I am not sure of his position.

MS THABETHE: And what about Nhlanhla Gumede, what position did he hold?

MR MTHWANA: He was a member.

MS THABETHE: Why did you chose to go and rob a car? Why didn't you borrow a car from one of the ANC members, because we've heard in previous matters that if there was an operation that needed to be done, they would - for example if there were arms that needed to be fetched somewhere, other members would lend other members cars to go and fetch those firearms. Why didn't you borrow a car from one of the members?

MR MTHWANA: I hear what you are saying, but we were in a situation that demanded urgent action because at the time we were under attack.

MS THABETHE: I don't understand your answer. What situation?

MR MTHWANA: It was an urgent situation that prompted us to act in whatever manner that we could.

MR LAX: So urgent that you waited three days between the time you got your order and the time you went and stole the car. Surely there were ANC members with cars, you could have borrowed them immediately.

MR MTHWANA: That's how it happened.

MS THABETHE: When your attorney led you, she spoke about Saga Gumede having gone with you to eMbali. Was it Saga Gumede or Nhlanhla Gumede who went with you to eMbali? Can you please reply that?

MR MTHWANA: It was both of them.

MS THABETHE: And then when you came back, you left the arms with Saga?

MR MTHWANA: Yes.

MS THABETHE: And why did you choose Pinetown out of all the places, why Pinetown, to rob the car, why not Durban which is nearer than Pinetown from Chesterville?

MR MTHWANA: It could have been anywhere.

MS MOHAMED: I have no questions, Mr Chairman.

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

CHAIRPERSON: Any more evidence Ms Mohamed?

MS MOHAMED: No, Mr Chairman.

CHAIRPERSON: Have you got any evidence?

MS THABETHE: None Mr Chair.

CHAIRPERSON: Have you got any submission Ms Mohamed?

MS MOHAMED: No Mr Chair.

CHAIRPERSON: Are you going to leave it in our hands?

MS MOHAMED: Yes.

CHAIRPERSON: We don't need to hear you. We reserve this decision and we'll hand it down in due course.

MS MOHAMED: As the Committee pleases.

MS THABETHE: As the Committee pleases.

CHAIRPERSON: Is that the roll for the day?

MS THABETHE: That's the roll for the day.

CHAIRPERSON: We will adjourn till half past nine tomorrow morning.

MS THABETHE: Thank you.