DATE: 22-06-1998




--------------------------------------------------------------------------CHAIRPERSON: This is a sitting of the Amnesty Committee held in Port Elizabeth. The Committee consists of myself, Judge Andrew Wilson and Advocates Chris de Jager and Denzil Potgieter. The first matter to be heard is the application of Mzikayise Potye.

Carry on gentlemen.

MR MKANUNU: Thank you. Mr Chairman and members of the Committee, I appear on behalf of Mzikayise Potye and the name is Silas Mkanunu. I propose just going through the affidavit with him initially and perhaps highlight certain matters.

He speaks Xhosa and I will try and pace it through with him, thank you. Does he have to be sworn in?

CHAIRPERSON: Are any other persons appearing?

MR NYOKA: Thank you Mr Chairman, I am Pumelo Nyoka, I am appearing for the mother of the victim, Lindiwe Nondumo.

MR MAPOMA: Mr Chairman, for the record, I am Zuko Mapoma, I am the leader of evidence, thank you sir.


MR MKANUNU: Thank you.

ADV POTGIETER: I am going to ask Mr Potye just to take the oath before you lead his evidence.

MZIKAYISE POTYE: (sworn states)

EXAMINATION BY MR MKANUNU: Thank you. Mzikayise, where are you presently?

MR POTYE: I am a prisoner at (indistinct)

MR MKANUNU: And where do you reside?

MR POTYE: I stay at KwaZakhele 1217.

MR MKANUNU: You deposed an affidavit, I am just going to go through it with you, do you remember that?


MR MKANUNU: You said you attended school at Tsume Primary School, KwaZakhele and up to standard 1?

MR POTYE: That is correct.

MR MKANUNU: At the age of 15 you linked up with the Port Elizabeth Youth Congress which is an affiliate of the United Democratic Front which was a political organisation involved in the struggle for the liberation of the oppressed?

MR POTYE: That is correct.

MR MKANUNU: At the time the State organs, that is the Security Police, Police and the South African National Defence Force were heavily deployed in our area, harassing people, arresting some and killing others indiscriminately, is that so?

MR POTYE: That is correct.

MR MKANUNU: Also the State imposed a state of emergency which in a way gave a blanket permit to State Security organs to commit illegal and inhuman acts?

MR POTYE: That is so.

MR MKANUNU: In the next paragraph you say you were involved in street and area committees and you were a Chairperson of a street committee?

MR POTYE: Correct.

CHAIRPERSON: Was this at the age of 15?

MR POTYE: Please repeat your question.

CHAIRPERSON: Were you Chairman of the street committee at the age of 15?

MR POTYE: This is during the time I was following UDF.

CHAIRPERSON: When was it?

MR POTYE: During the time when I joined the organisation or during the time that we murdered the victim?

CHAIRPERSON: When were you Chairman of the street committee?

MR POTYE: During the time of the struggle.

CHAIRPERSON: When was that?

MR POTYE: It was in 1990.

CHAIRPERSON: And you have just told us that when we murdered the victim. When did you murder him?

MR POTYE: After the victim was - before the victim was held, we held a meeting in an open field. The meeting was called by the comrades, then in the meeting it was said Monde Nondumo should be called from Mangwani to tell the people what he was doing in the community. That was done.

I was one of the people who went and fetched Monde. We took him to the meeting in the open field. There were a whole lot of comrades, we took him to church. At the meeting I was the Chairperson of that meeting.

The people were complaining saying that Monde was the one that was shooting at them and he had already killed a comrade Mzwandile.

We then said this should be reported to the Police. The Police did not do anything about it. The next day we held another meeting. We wanted to see who were committing these crimes. As the community requested, we went all around to see who was being oppressive to the members of our community.

All the time, it was coming out that it was Monde who was committing these crimes. The one night I got a message that I should go and fetch Monde. We went and did so and took him to the meeting. Even before the meeting was over, people were very angry at him. I tried to talk to the people, even though they were angry.

I said that under the guidelines of the street committee, we cannot do anything to him. I tried to explain that we should take Monde to the police station and see what the Police do about it.

I was being criticised by the people because of my views and then I heard that Monde was killed, the next morning.

MR MKANUNU: Thank you. You have more or less covered the affidavit. When you said some time we killed the victim, what were you trying to say when you said so?

MR POTYE: I apologise for having said that. I was talking about the time that we took him from Mangwani to the meeting.

MR MKANUNU: When the victim was killed, where were you?

MR POTYE: I was at home, sleeping. I heard the next day that Monde had been killed.

The people who had done that, were the people who did not want us to take Monde to the police station. I tried to communicate to them that Monde should be taken to the Police. It is the Police who then would be responsible for him.

They went beyond my wishes as a Chairperson. I even said that I am closing the meeting down if they don't want to listen.

MR MKANUNU: You had said in your affidavit also that you know, criminals or people who had committed criminal acts, were reported to the Police and the Police did nothing about it. Is that correct?

MR POTYE: That is correct.

MR MKANUNU: And how long was this before this incident? Was it an ongoing thing or not?

MR POTYE: It happened after one of our comrades arrived.

INTERPRETER: The speaker is not audible.

MR POTYE: A man I believe came from exile, arrived. We went to him to welcome him and he told us that he was no longer a member of the ANC.

He told us negative things that we refused to listen to. After that we met Monde. He said that they were being trained Sipho Pungola as askaris. We tried to find out exactly what was going on and which direction this whole matter was taking.

After a while we heard that this man from exile had died in the Transkei. Monde and the other people continued doing or committing these crimes in the community.

We did try to take this matter to the Police, but they didn't care.

MR MKANUNU: What role did this person take, this person you referred to as coming from exile, was he working with the people, or working with the Police?

MR POTYE: He was working with the government, because even the meetings that we had, he didn't take much cognisance of them.

MR MKANUNU: The deceased, was he working hand in hand with this man?

MR POTYE: Yes, he did say this.

MR MKANUNU: You say you were part of the people who went to fetch the deceased at some place?


MR MKANUNU: And you took him to a meeting?

MR POTYE: Yes, we took him to an open field meeting.

MR MKANUNU: You were asked roughly how old were you then, earlier on, I think you had some difficulty. Do you know how old you were then?

MR POTYE: I think I was 15.

MR MKANUNU: You went to school up to standard 1 is that correct?


MR MKANUNU: And if you say this incident happened in 1990, you must have been about 20, 21 then, is that correct?

MR POTYE: Yes, that should be so.

MR MKANUNU: The Port Elizabeth Youth Congress, was it a political organisation?


MR MKANUNU: What did it seek to achieve? What was it that it sought to achieve?

MR POTYE: They were fighting against the oppression of the youth of South Africa.

INTERPRETER: The interpreter did not hear the last sentence.

MR POTYE: Our organisation was to go and enlighten people, different communities about what was going on.

MR MKANUNU: Were the Police playing any role in protecting the citizens of that time?

MR POTYE: No, the Police did not try to protect the people. What they did is to just mess up the community.

MR MKANUNU: I see. You are saying what you were doing had a political objective, is that it?

MR POTYE: Correct.

MR MKANUNU: And that at the time there was an intense political activity for the liberation of the masses of the people?


MR MKANUNU: And you are also saying that the government of the day and the security agents, were busy sowing confusion and disorder in an effort to discredit the broad liberation front by amongst other things, indirectly and directly promoting criminal activities in an effort to portray the struggle for political freedom, as a criminal activity?

MR POTYE: Correct.

MR MKANUNU: And you say your further objective was to secure the confidence of the people in the political struggle as well as their security in the area in which they lived?

MR POTYE: That is correct.

MR MKANUNU: Did you personally take part in the death of the deceased, I mean ultimately?

MR POTYE: No, I did not take part in Monde's death.

MR MKANUNU: And in fact you, is it correct that you were found guilty of kidnapping, am I right?

MR POTYE: Yes, I was found guilty of kidnapping.

MR MKANUNU: But in view of the present day situation are you sorry that Monde died in the circumstances in which he died, even though you did not take part in his killing?

MR POTYE: Yes, I am sorry about the way Monde died, even though I did not partake personally in his death. I do admit that as a member of the community, I am one of the people who went and kidnapped him, but I was not there when he was killed.

MR MKANUNU: Thank you, that is the evidence Mr Chair and members.


CROSS-EXAMINATION BY MR NYOKA: Thank you Mr Chairman, Mr Chairman before I proceed, I wish to place on record that I was instructed to appear on this matter on Friday.

I got the court record this morning, but I am not seeking a postponement, I just want an understanding by the Committee if I have to be slow in referring, thank you.

Mr Potye, I am acting for the mother of the victim. Before the incident occurred, what was the relationship between you and the deceased?

MR POTYE: I had a relationship with him in the sense that I tried to communicate with him, to tell him that the community did not approve of what he was doing.

MR NYOKA: What was the relationship, was it a friendship or were you blood relatives, specify the relationship?

MR POTYE: We are not blood relatives, but we would chat and talk, discuss politics and that would be it.

MR NYOKA: When did that relationship start, we know he died in 1991, but when did the relationship between you and him start, we know he died in 1991?

MR POTYE: I met him in the gatherings that we would have as members of - as comrades. That is where we met.

MR NYOKA: There were so many gatherings, I want to know the time frame when, was it in that year of his death 1991, to make matters simple, or 1990 or earlier on 1985, when the state of emergency started, I just want to know?

MR POTYE: At the time of the state of emergency, that is when we met. He would come to, I would see him in the community.

MR NYOKA: You agree with me that the state of emergency started in 1985 and was repeated in 1986, until 1989. There was a state of emergency in other words, in effect for four years, 1985, 1986, 1987, 1989, do you agree with me?

MR POTYE: Yes, I agree with you.

MR NYOKA: You had no problem with the deceased during that period, that is 1985 to 1989, not so?

MR POTYE: I had no problem with the deceased.

MR NYOKA: As you testified that he was recruited by Sipho Pungola in 1990, that is when the problems arose, is that so?

MR POTYE: That is correct.

MR NYOKA: Can you tell us why this sudden change when he was a good person for four years, during an intense political period. He was your friend, you ought to know?

MR POTYE: What happened is, he would go to Mangwane in the area and he was always armed, he always walked around with weapons and I tried to talk to him and tell him that people in the community are not comfortable with him walking around armed like that.

I asked him that when he comes to our area, he should come unarmed. It is the only way he can work with the people and live with the people peacefully.

MR NYOKA: What I find strange, your relationship with him and the fact that you tried to talk to him, is not reflected in your affidavit. Why is it absent, it is very crucial that you tried to persuade him, it is not mentioned in your affidavit?

MR POTYE: I am going to apologise for that because not everything I am saying, is in my affidavit. I am here to give full evidence. Even though some of the evidence I am giving, is not in the affidavit, I apologise for that.

MR NYOKA: Fair enough. You say you met Monde one day who said he was being trained by Sipho Pungola as an askari. When did he say this to you?

MR POTYE: After he had been called to a meeting and having been told in the meeting that he must stop intimidating people, he then said that he had stopped working with us but he was being trained as an askari.

MR NYOKA: Which meeting is that now, this one, where he made this alleged confession?

MR POTYE: What I am saying is after he had been called to a meeting, we met with him and that is what he told us, that he had stopped working with us. He did not say that at a meeting, he said it after the meeting, after he had been confronted.

MR NYOKA: Under what circumstances did he say that he was no longer working with you? Did he do so voluntarily or was he being forced to say that?

MR POTYE: He was not forced to say that. He was talking because we had established some rapport, he confessed it.

MR NYOKA: This was very important information, very vital and dangerous information. What steps did you take about this information?

MR POTYE: I was not too shocked in response, because I knew Monde. If he labels himself as an askari in training, there is nothing I could do about that.

He did not say that to intimidate us, he was just telling us what he was up to.

MR NYOKA: But you were a responsible Chairperson of a street committee, why did you not tell any of the political structures that there is someone who is confessing to be an askari, what has to be done about this?

MR POTYE: At the time we tried to speak to Monde, we did not think that he would go as far as doing the things that he did.

I did not perceive Monde as someone who would commit the crimes that the community was complaining about.

MR NYOKA: Did you believe him or not when he said so?

MR POTYE: I did not see any changes or seriousness in his facial expressions, that is why I did not believe that he was an askari.

MR NYOKA: I am very happy that you said that because his family do not believe that he committed the so-called counter political activities, I am happy that you said that.

In fact you agree with me that Monde was given a comrade's funeral when he was being buried, do you agree with me?

MR POTYE: Yes, I would agree with you.

MR NYOKA: So even if you yourself, do not confess to his, to participating in his death, you do not believe that he deserved to die in the manner he did, not so?

MR POTYE: I did not believe that Monde should have been killed because according to our guidelines as comrades, each and every person has a right to their lives, and nobody has a right to take that life.

The apparent victims, Monde's victims did what they wanted to do, they went beyond my wishes as a Chairperson.

MR NYOKA: What are you saying now about the incident that led to the fatal meeting with Monde, where you said you witnessed him whilst you were doing a neighbourhood watch, shooting a youth activist, what are you saying about that? Are you changing your mind about that also?

MR POTYE: Yes, that is so. However, even after we saw him or witnessed that, I did not say that the comrades should take the law into their own hands, I said that the Police will see what to do with him.

I went home and slept. I was then called to a meeting the next morning and we were asked to fetch Monde, and that is what we did.

MR NYOKA: Let's just briefly deal with the incident of that youth. Are you sure for a fact that you saw Monde shooting the youth?

MR POTYE: Yes, I did witness this but I did not advise anyone to attack Monde or to do anything about this. I just thought that we would take this matter to the Police.

MR NYOKA: I assume it was at night, how far were you from him when you saw him?

MR POTYE: I will try to show you.

INTERPRETER: The interpreter did not understand the speaker.

MR POTYE: We were in an open field, perhaps from where I am sitting to - there was a hedge between us.

INTERPRETER: The speaker is pointing to this side of the hall.

CHAIRPERSON: What are you pointing at, tell us what you are pointing at, don't just point.

MR POTYE: I am pointing at the two doors, from this wall behind me to the two doors right opposite.

CHAIRPERSON: Sorry, there is a wall behind on the stage here, and there is a wall back there, and the door in that wall, a door in this wall, which one are you talking about or are you talking about the boxes where the interpreters are sitting?

MR POTYE: Beyond the interpreting booth.


MR NYOKA: And you said there was a hedge in between, how high was this hedge?

MR POTYE: The hedge was as high as myself when I am standing, it wasn't too high a hedge.

MR NYOKA: Was there any lighting?

INTERPRETER: The speaker is not audible.

MR POTYE: There was moonlight, you could see clearly or identify a person clearly.

MR NYOKA: And you said you were patrolling without arms, is it not correct that when people were patrolling, they would be armed either with sticks, visible or hidden under their jackets. How is it that you patrolled without any arms at all, if you are protecting people?

MR POTYE: We carried sjamboks, but we would not carry arms because I did not, I personally did not want anybody to lose blood. I didn't want any blood shed.

MR NYOKA: If as you said, you were on good relations with Monde, why did you not shout and say Monde, what are you doing, stop what you are doing? He would not have shot you?

MR POTYE: I could not say that that night, because I did not know what was going on and I did not know what his state of mind was.

Perhaps he would think that I would take him to the Police, I did not know what was going on with him. He was armed, I could not just shout like that.

MR NYOKA: I put it to you that you may have observed someone as not Monde, and you thought it was Monde?

MR POTYE: I saw Monde that night.

ADV DE JAGER: Was he alone?

MR POTYE: That night, he was the only one that was armed.

ADV DE JAGER: But was he the only person at the scene?


ADV DE JAGER: Why did you at first say he was the only one that was armed, that would implicate that there were other people too?

MR POTYE: That night he was the only one that was there, he was not with the people that he usually moved around with.

MR NYOKA: You did not know the youth that was being shot and killed by him?


MR NYOKA: You also do not know the circumstances why the shooting took place?

MR POTYE: No, I don't know. I just saw the scene.

MR NYOKA: You don't know the youth, you don't know the circumstances, it was dark, there was a hedge, you were at a distance, but you say it was Monde? How can you expect us to believe you in that aspect?

MR POTYE: This is why you should believe me. It was not dark, there was moonlight. I could see clearly the person. I however, could not go to Monde and find out what was going on because I feared for my life as well.

MR NYOKA: All right, let's get to the kidnapping. In your affidavit you said there were political structures present at the meeting. Which political structures were present at the meeting where eventually Monde got killed?

MR POTYE: It was the street committee members and the area committee members.

MR NYOKA: So there were no political organisation, like PEYCO, UDF, SANCO etc?

MR POTYE: The street committee that was under PEYCO, UDF.

INTERPRETER: The speaker's microphone is not on.

MR NYOKA: To your knowledge, what exactly was hoped to be achieved at this meeting?

MR POTYE: Our aim was to get the firearms from Monde. The community wanted Monde to give up those firearms and hand them over to the community.

MR NYOKA: But in your affidavit you said that when your group went to where Monde stayed, there were no weapons at all.

Why did you not go back and say Monde had no weapons, then the meeting gets disbanded? Why did you not say so because you searched, found no weapons?

MR POTYE: Yes, truly I said so. After we did not find any weapons, there was a report, however the people in the meeting would not listen. I could not handle them.

I tried to tell the people in the meeting that they should take Monde to the Police. The people who lost their loved ones through Monde or people who had been intimidated by Monde, were saying that the Police would not be able to handle the matter or would not look into the matter. I then said as the Chairperson, I am stepping down, I am leaving the meeting.

I stipulated that we had no right to take Monde's life. After I said that, I was greatly criticised and people were angry, they were starting to be angry towards me.

I then left and went home to sleep. It is certain people who forced this matter and had Monde killed.

ADV DE JAGER: Could you tell us who those people were, who forced it?

MR POTYE: First of all I would mention Mzwandile's brother and my co-accused Siam Cela, those were the people that were present.

ADV DE JAGER: That is not what I have been asking you, who were present. You told us a minute ago that people were forcing the issue and I want to know now, because you are going to make a full disclosure, who were those people?

MR POTYE: I said it is the brother to the victim that was being shot by Monde and Siam Cela. They are the people who were forcing the matter.

MR NYOKA: You gave me a long answer Mr Potye, I am going to ask you to give short answers. What I want to know was there a meeting first before you were asked to go and fetch him back to the meeting, had the gathering congregated before you were sent away to fetch him?

MR POTYE: I was called from home to a meeting in an open field. It was said that it was the street committee, we should go and fetch Monde from Mangwani. I went to fetch Monde.

MR NYOKA: So you were not told to kidnap him, you were told to fetch him, it could have been voluntarily? He could have come voluntarily, you could have suggested please come with us? You were not instructed to kidnap him, take him by force?

MR POTYE: We were told to fetch him at the meeting.

MR NYOKA: At the time, did you entertain any thought that this person could end up being killed, at the time that you were being told to fetch him?

MR POTYE: At the time I did not know that Monde was going to lose his life. It as after all the meetings that I heard that Monde had been killed.

MR NYOKA: You were asleep and there were people already in the meeting, why were you in particular chosen to fetch Monde? Why had you have to be woken up?

MR POTYE: At the time I was a member of the street committee.

MR NYOKA: With whom were you when you went to fetch Monde, how many were you?

MR POTYE: There was a whole lot of people, a big group.

MR NYOKA: At what time did you go there, was it in the morning, afternoon or evening?

MR POTYE: It was late afternoon.

MR NYOKA: Okay. Were you instructed exactly how it was that you had to perform your task of taking him to the meeting or did you use your own discretion amongst the group of many people?

MR POTYE: We were not told to take Monde by force. We were just told to fetch Monde, and I was one of the people who fetched him.

MR NYOKA: Where did you meet him?

MR POTYE: We found him at Mrs Mangwana's place.

MR NYOKA: Please tell us the circumstances in which you found him?

MR POTYE: He was just sitting inside at the house. He was then called by the comrades, we then left with him to the meeting.

He did not resist, he just left with us.

MR NYOKA: I wish to draw attention to page 8 of the judgment in the bundle, the last paragraph. I would like to read that into the record.

It is written there, it is either common cause or not in dispute that on the day of 2nd of January 1991, during the course of the afternoon the deceased was confronted by a group of people in a street in KwaZakhele, what do you say about that because they say you confronted him in a street in KwaZakhele not where you said he was sitting at (indistinct). The group tried to apprehend him by catching a hold of him, but he succeeded in breaking free, he ran away.

Any comment about that?

MR POTYE: I found Monde at Mrs Mangwana's place. I don't know anything about him being chased in the street, I was not in that group.

MR NYOKA: Okay, what was his reaction when you confronted him, wherever you confronted him, what was his reaction?

MR POTYE: He just got up and went to the meeting, he did not show any form of resistance.

MR NYOKA: So you did not have to force him all the way to the meeting, he just went with you voluntarily?

MR POTYE: Yes, he just got up and he walked on his own.

MR NYOKA: So why are you saying when you kidnapped him when he went with you voluntarily, why are you applying for amnesty for kidnapping? You did not kidnap him?

MR POTYE: The reason why I am apologising to Monde's family is because I was one of the people that fetched Monde and also I was the Chairperson of the meeting. I did not wish for Monde to lose his life as the Chairperson at the meeting. I personally tried to persuade people to take Monde to the Police and then the law would take its course.

However, at the meeting Monde's victims would not listen to me. It is because of this thing that my name is - that I am a part of this, that I am accused of killing Monde.

I am in jail, but the people who killed Monde or who forced others to kill Monde, are at home with their parents.

CHAIRPERSON: I just want to be quite clear in my own mind. You say you were told to fetch Monde and you went with other people, who were members of your street committee all of whom you knew, I take it, to Mrs Mangwana's house. Is that so?

MR POTYE: That is correct.

CHAIRPERSON: And you saw Monde sitting peacefully sitting there and he was asked to come with you to the meeting?

MR POTYE: That is correct.

CHAIRPERSON: And he got up perfectly peacefully and voluntarily, and accompanied you to the meeting?


CHAIRPERSON: And was that the last you had to do with forcing Monde or getting Monde to do anything, thereafter you Chaired the meeting and tried to persuade people to take him to the Police?

MR POTYE: Yes, correct.

CHAIRPERSON: So as has already been put to you, at no stage did you forcibly take Monde anywhere?

MR POTYE: No, I never forcibly took Monde anywhere.

CHAIRPERSON: And you were not party to doing so? You didn't assist anybody else in forcibly taking him anywhere?

MR POTYE: No, I have never done that.

CHAIRPERSON: So you have never committed an act of kidnapping?

MR POTYE: I was one of the people that went and fetched Monde from Mr Mangwana's place.


MR POTYE: I admit that.

CHAIRPERSON: But you have explained to us time and again, that it was a perfectly voluntarily act on his part, there was no compulsion used by you or your party?

MR POTYE: Yes, he was not forced.

MR NYOKA: So Mr Potye, if I can summarise you are using this opportunity just to apologise, to show your sympathy and to apologise to the family of Monde for your actions, which eventually led to his death.

Not that you are applying for amnesty for kidnapping and for murder, which of course you denied. You just used this opportunity to say sorry for my actions which eventually led to his death, is that all?

MR POTYE: I am saying sorry to Monde's family and his friends for having gone to fetch Monde from Mrs Mangwana's place, also having Chaired a meeting that eventually led to Monde's death.

I am glad that there is this opportunity at the TRC because the entire Port Elizabeth thought that I had murdered Monde. Even my parents to this day, they don't know what to do because most people believed that I killed or I took part in killing Monde.

The people that killed Monde are at home with their parents, and my mother is going up and down trying to expose that I did not kill Monde. I don't know why the people that killed Monde have not applied for amnesty. I don't want to carry a burden that I should not be carrying.

MR NYOKA: Just a few more questions Mr Chairman.

CHAIRPERSON: Well, I was going to suggest because we started - are you going on to something different now? I don't want to cut you down in any way, but I know we started a little bit late, but I also know that certain people working here, have probably been sitting here since ten o'clock and I think I should enquire whether they would like to take an adjournment at this stage.

I think certain people would, so we would take a short adjournment now.


MZIKAYISE POTYE: (still under oath)

CROSS-EXAMINATION BY MR NYOKA: (continued) Mr Chairman, I will not be long, I will take not more than 10 minutes.

You were Mr Potye, are you ready, you were a Chairperson of such an important meeting, why did you have to leave the meeting when you did, before a resolution was taken?

MR POTYE: The reason why I left the meeting, was because I could see that the people and the comrades in the meeting even after I had tried to reason with them not to be led by their anger, that they should talk about this reasonably, it is the victim's family that was very angry and some comrades.

I then tried to show them as a Chairperson, that according to our guidelines at the time, we could not handle such a serious case as a community, but that the Police should.

It was Monde's victims that said they would not take him to the Police. I took my books and said I am giving up, that is how I left the meeting.

I then heard that Monde had passed away. I did try to calm them down, but they were starting to be angry at me.

MR NYOKA: At the criminal trial you said that you went to the gymnasium between five and six o'clock. Today you say that you went to go and sleep. Why is there such a difference?

MR POTYE: The reason why there is a difference is that at the time of the trial, I did not want to say that I left a meeting because people were angry.

I was scared of the sentence. At the time the government would sentence people to death. I just then said I went to the gym. I thought that if I said I tried to calm people down because they were angry, the system would have thought something else of me.

MR NYOKA: Was that also the reason why you said in court that you were just an innocent bystander, you were just a spectator, you did not participate at all in the activities?

MR POTYE: I did not say that in the trial. I said I admit I was the Chairperson at the meeting.

MR NYOKA: The Judge's summary on page 19, he said ...

CHAIRPERSON: Did you say you said at the trial that you were the Chairperson at the meeting? Is that what you have just said?

MR POTYE: I apologise, I can't remember whether I said I was the Chairperson at the meeting, however, I did say that I left the meeting before the end of it.

CHAIRPERSON: I am not asking you, I am asking you did you one minute ago say to us that at the trial you said you were the Chairperson of the meeting?

MR POTYE: I can't remember whether I did mention that. What I do remember clearly is that I said that I left the meeting to go to the gym.

MR NYOKA: Mr Potye, this was the Judge's summary of your evidence, he said on page 19 of this bundle, you said you were an innocent bystander at all times, and you nowhere participated in the activities, other than being a spectator. Are you saying today that you didn't even say that in the court?

MR POTYE: What I am saying today is that I was there when Monde was being fetched and I was the Chairperson. The Chairperson of the meeting that was held before Monde lost his life.

MR NYOKA: I put it to you that even in your version today, you could have advanced that in court, because it was in your favour. You could have said I went to fetch Monde and he left voluntarily, there was not even kidnapping in that.

Why did you not advance that version if it was the truth, if it is the truth today?

MR POTYE: At the time of the trial, I was very scared. It was the first time I had gone through such a legal experience. I did not know what to say because somebody's loss of life is very serious. I did not know how to go about the matter.

MR NYOKA: You were concerned at the fact that the mood of the people was angry. Why when you left the meeting instead of going to sleep, why did you not go to the Police, why did you not go to the mother of the deceased, why did you not go to the UDF structure to say people, I am concerned, something bad, horribly bad might happen, just go and check but I am going to go and sleep. Why did you not do that?

MR POTYE: At the time I left the meeting, first of all, I did not know where Monde's family lived. I would only see Monde at Mrs Mangwane's place.

Secondly, I was also angry at the way people were treating me at the meeting. I could not think or I did not have the presence of mind, to go to UDF structures or leaders to tell them what was going on. I did not know that the people, I did not know why the people did not listen to me as a Chairperson.

MR NYOKA: Why did you not go to the Police just to allay your conscience, why did you not go to the Police. You are not reporting them, but you just want them to take some action to stop whatever could happen?

MR POTYE: The reason why I did not go to the Police is because I did not think of it at the time.

All I thought was that people do not empathise with others. I did not know which direction to turn.

MR NYOKA: Contrary to what you said that you wanted the deceased to be released, some State witnesses in the trial, in your trial, said that you refused to let the deceased go, either to be released or to be taken to the custody of the Police, you flatly refused. What do you say about that?

MR POTYE: I don't know how to answer that, because I have never said that. I don't remember ever having said that.

I cannot force people to do such because I have never seen somebody being killed, to this day.

CHAIRPERSON: What was put to you was not that you said it, but that witnesses at your trial, when they were giving evidence at your trial, said that at this hearing, you refused to let the deceased go and you refused to let him be taken to the Police.

Do you remember them saying that?

MR POTYE: I remember such witnesses, but I cannot tell you what happened because during the trial, I was very confused, I didn't know what was happening, I didn't understand the procedure, I didn't know why I was being accused, because I had never killed anyone.

I was not even able to speak really at the trial, because I was very confused.

MR NYOKA: You said initially in the beginning, about your remorse at the fact that your actions led to the death of the deceased, you are sorry and you want to apologise to the family. The family does not buy that story, you have been in custody for six years now. Did you make an effort through the UDF or the ANC to convey what you said today, that you are sorry to the family of Nondumo, besides today?

MR POTYE: I did not know Monde's family, I didn't know where they stayed. Secondly, I did not try to get hold of the deceased's family.

I did not try to apologise or send my sympathies to the family even through the UDF. I thought I should get in touch with an Attorney so that we can bring this forward to the TRC.

MR NYOKA: My final instructions are that you have added insult to injury by lying today. You know more than what you are telling us. By bringing this matter forward you are rubbing in salt to the wound. Any comment?

My instruction is to oppose your amnesty flatly.

MR POTYE: What I would like to say to the family and to the TRC is that I reiterate and repeat that I had nothing to do with Monde's death.

Yes, I did go and fetch Monde, again, I was the Chairperson of the meeting concerned, however, I am not one of the people that killed Monde. I asked Monde's family that if this case can be looked at again, be investigated properly, that you would find that the people who killed Monde, are at home with their parents.

I am in jail, I am in prison like Jesus Christ, I am dying for the sins of others.

CHAIRPERSON: Mr Mkanunu, would your client like a short adjournment?



MZIKAYISE POTYE: (still under oath)

CROSS-EXAMINATION BY MR NYOKA: (continued) Mr Potye, I am going to ask you just two more questions, and I am going to beg you to answer them honestly now that you mentioned the name Jesus Christ.

Can you tell us honestly, this is not a court of law, it is an amnesty hearing, can you tell us now honestly whether you, Mzikayise Potye, did not kill the deceased that day or night?

MR POTYE: I did not kill Monde, I repeat that. Again, I did not partake in any way in killing Monde.

I am here because I went and fetched Monde from Mrs Mangwane's place and I was Chairing the meeting concerned. Again I want to say the people who killed Monde, are not in jail. I am innocent as far as Monde's death is concerned, but I am the one who is in prison.

I have this application so that Monde's family can also see that I did not partake in killing Monde. The people whose actions led to Monde's death, are at home with their parents. I don't know what else to say now.

If I had killed Monde, I would say so here, because this forum is to expose the truth. I can't change and say I killed Monde when I didn't. It really kills my spirit that I am carrying the burden of Monde's death, but the people that killed Monde are free. This matter should be investigated fully and the people who killed Monde, should come forward.

They know, the people in the community know that so and so killed Monde.

MR NYOKA: Finally, do you know who those people are? You seem to know because you say they are with their parents, who are those people?

MR POTYE: The people who were involved in Monde's death is Mzwandile's brother. Mzwandile is the person who was supposed to have been killed by Monde. He is also my co-accused.

The one I was in jail with, and he got - he is free now. Those are the two people that I know for sure because they were seen. They have all the information about Monde's death.

This thing really gets to me, because they are free, I am the one who is in jail.

MR NYOKA: No further questions Mr Chairperson.



CROSS-EXAMINATION BY MR MAPOMA: Thank you sir. Mr Potye, do you understand that you are applying for amnesty for kidnapping Monde Nondumo?


MR MAPOMA: Do you understand that for you to get amnesty in respect of kidnapping Monde Nondumo, you have to make a full disclosure of all facts relevant to that kidnapping?

MR POTYE: Yes, I understand.

MR MAPOMA: Are you prepared to make a full disclosure in respect of kidnapping?


MR MAPOMA: Now, who gave you instructions to go and fetch Monde?

MR POTYE: Mambele said I must go.

MR MAPOMA: Where did she give those instructions, was it in a meeting situation where she instructed that you must go and fetch Monde?


MR MAPOMA: Now, when you went to fetch Monde, you were a group of people, is that correct?


MR MAPOMA: Can you estimate the number of those people, were they about 20 or 100, can you just estimate?

MR POTYE: We were more than 20. There was a whole lot of us but I did not count the exact number of the people, but more than 20 people.

MR MAPOMA: Now, were you singing any songs when you were at the place where Monde was?

MR POTYE: Yes, we were singing.

MR MAPOMA: What kind of songs were you singing, were they freedom songs?

MR POTYE: Freedom songs.

MR MAPOMA: Where was the owner of the place where Monde was at the time?

MR POTYE: I think that she was there. I think Mr Mangwana was there.

MR MAPOMA: Did you speak to Mrs Mangwana about your mission to come and fetch Monde?

MR POTYE: Yes, I think she was told.

MR MAPOMA: Now, when you first spoke to Monde saying that you have come to fetch him, did he just agree to go with you?

MR POTYE: When we went to fetch Monde, there was one group inside the house, another group outside the house. Monde was told to get up and go, and that is what he did.

MR MAPOMA: Which group were you in, the group inside the house or the group outside the house?

MR POTYE: I was in the yard.

MR MAPOMA: I need your clear answer to this question, were you in the group which was inside the house or the group outside the house? You said there were two groups?

MR POTYE: I was in the yard, not inside the house.

MR MAPOMA: Where was Mrs Mangwana? Was she inside the house or outside the house?

MR POTYE: I think she was inside the house.

MR MAPOMA: How did you know that Monde easily volunteered to go with you when you were not inside the house?

MR POTYE: When I looked at him, I saw him walking. I just assumed that he just got up and went.

CHAIRPERSON: Could you see him in the house?

MR POTYE: Yes, I saw him.

CHAIRPERSON: You saw him just sitting there as you told us earlier, did you?

MR POTYE: Yes, I saw him sitting in the house.

MR MAPOMA: Thank you Chairperson. When you were instructed to go and fetch him, were you instructed on what to do if he refuses to go with you?

MR POTYE: No. We were not given specific instructions if he did resist.

MR MAPOMA: If he resisted to go, what would you do?

MR POTYE: If he had resisted, I personally would have tried to get people to go back to the meeting to say that he was resisting.

MR MAPOMA: Do you know the late Mzwandile Nqale?


MR MAPOMA: Were you in any way related to Mzwandile Nqale?

MR POTYE: No, I was not related to him.

MR MAPOMA: I would like to refer you to page 9 of the bundle, paragraph 20 of the court judgment where it reads that the complaint against the deceased was that he killed the son of Mzikayise Potye and the object of the proceedings was to decide the fate of the deceased in that regard. What is your comment on this sentence, is it a correct version, is it a correct version of what was happening at the meeting about the deceased?

MR POTYE: First of all I have never lost a member of my family through death.

It surprises me that it is written down here. Anybody at home can tell you that we did not lose anybody between that time. My brother is alive, he is in Cape Town.

MR MAPOMA: Are you saying it is incorrect to say that the deceased ever killed your son?

MR POTYE: My son, I don't have a son.

MR MAPOMA: Yes, Chairperson, this paragraph reads like that. Is it incorrect that - oh sorry Chairperson - would you confirm that Mzwandile Nqale was not your son?

MR POTYE: I was born in 1969, I am young, I could not have had children of that age. I don't know what you are talking about. Mzwandile was born in 1960 and I was born in 1969.

MR MAPOMA: Do you know the youth who you witnessed being shot at by Monde Nondumo?

MR POTYE: No, I would just see the person but I don't know the name.

MR MAPOMA: At the meeting where the deceased was present, were there any allegations laid against him by the gathering?

MR POTYE: The people were saying that they lost their loved ones through Monde and the people were complaining that they had been intimidated by him. Some of them were saying that when they were trying to go to work, Monde took their money by force. It is an enigma that all these people were accusing Monde and were angry at him (indistinct) and I am the one who is in jail.

MR MAPOMA: And in that process Monde was found guilty of those allegations against him, is it not correct?

MR POTYE: When Monde was found guilty, I was not there. What I did try to do is to calm the people down when they were angry at Monde. I tried to persuade them that we should take Monde to the Police.

It is the anger of the people that caused me to leave the meeting. They were even starting to be angry at me.

MR MAPOMA: Do you if at all Monde was found guilty of the allegations that were laid against him?

MR POTYE: I just heard that Monde had been killed. I did not expect them to take his life because of those accusations.

MR MAPOMA: Please Mr Potye, please just answer my question. Do you know at all if Monde was ever found guilty of those charges, of those allegations which were laid against him at that meeting which you were Chairing?

MR POTYE: I did not hear or I was not told that Monde was found guilty, I just heard that he had been killed.

MR MAPOMA: I would like to refer you to page 2 of the bundle. That page 2 is part of your amnesty application, which you signed at page 6 of the bundle. In paragraph 9(a)(iv) you are asked there to furnish the nature and particulars of the offence for which you seek amnesty, you say there, I want to read for you - the victim conducted acts of terrorism within the community as well as criminal acts. He was kidnapped, taken to a public meeting and later to a public meeting held in a church hall, where victims of criminal activities tendered evidence at a so-called kangaroo court and was found guilty. He was subsequently found guilty and necklaced. This is what you said in your amnesty application.

Now you say that you were not aware of at any stage when the victim was found guilty of those allegations against him, how do you explain this?

MR POTYE: I admit that I was the Chairperson at the meeting, and I was there when he was being fetched. When decisions were made, I was not there, I had left already. I just heard the next day that Monde had passed away or had been killed.

After that I was never involved in anything else. I just was arrested because I was the Chairperson of the meeting. I seriously was not present when Monde was killed. The people who would know are the members of the victims' families.

I did not take part in anything else other than what I have mentioned. The people were strongly motivated to do anything.

ADV DE JAGER: Mr Potye, let's leave for a moment alone the killing and let us concentrate on the kidnapping or the fetching of the deceased.

After the deceased had been fetched, did he sit in the hall in front of you while you were Chairing the meeting?

MR POTYE: First he was sitting in front of me during the meeting. When I voiced out my point of view, some of the victims then took him and put him elsewhere. I then took Monde to come and sit next to me.

I told them that Monde should be taken to the Police, but they were angry and then I left.

ADV DE JAGER: Okay. So they took him away, you brought him back and now he was sitting next to you, is that correct?

MR POTYE: Correct.

ADV DE JAGER: At that stage, did anybody get hold of him and kept him there or was he still sitting voluntarily there as you testified previously?

MR POTYE: Qobongwana's son was holding him. I took Monde from Qobongwana's son.

ADV DE JAGER: Right, so you took him and you allowed him to sit next to you, is that correct?

MR POTYE: Correct.

ADV DE JAGER: Now, while he was sitting next to you, did he make any attempt to run away or what was his position? Did he voluntarily sit there?

MR POTYE: He did not try to run away whilst he was sitting next to me. He did not show any anger, he did not try anything.

ADV DE JAGER: Was he tied, his hands or his feet, were they tied up?

MR POTYE: His hands were tied.

ADV DE JAGER: Why was that?

MR POTYE: There were people, some of the victims who said Monde must be tied. This is when we were still ...

INTERPRETER: The speaker was not clear.

MR POTYE: After Monde had been taken from where I was sitting and I fetched him the second time, it was said that he should be tied, by the victims.

ADV DE JAGER: Was this a trial of Monde, was he accused of anything that he had done wrongly?

MR POTYE: Yes, he was accused of certain things in the community.

ADV DE JAGER: Of what?

MR POTYE: They said that he had killed some of the comrades, he had intimidated some people, he had robbed and they also accused his group of these things.

ADV DE JAGER: A moment, or a few minutes ago, you said that you had never seen a person killed, is that correct?

MR POTYE: Yes, I did say that.

ADV DE JAGER: But didn't you see Monde killing another person?

MR POTYE: I saw him, but I did not go to the person that he had been attacking to see that this person is dying or is killed. I just saw him shooting. I did not go to the exact place of the scene.

I just saw the next day when the person was taken by the Police that this person had died.

ADV DE JAGER: How far was this victim that he killed, standing from you when he was killed?

MR POTYE: Not too far.

ADV DE JAGER: Well, how far, could you point out in this hall? As far as I am sitting from you, or as far as somebody else is sitting from you?

MR POTYE: From where I am sitting to just beyond the booths.

CHAIRPERSON: About 30 paces?

ADV DE JAGER: And you didn't, did you see this person falling down?


ADV DE JAGER: And you were protecting the community, but you didn't walk up to that man to see whether he was wounded or whether he was killed?

MR POTYE: I was too scared to get shot because I did not know what was happening, I was scared.

ADV DE JAGER: He was on the same side of the hedge as you were standing, is that correct?

MR POTYE: Correct.

ADV DE JAGER: Was he doing the patrols with you, was he a member of the group doing the patrols?

MR POTYE: He was not patrolling that day.

ADV DE JAGER: To come back to the fetching of Monde, you saw him sitting in the house. Did you request him to come with you or who was the spokesperson?

MR POTYE: I did speak to Monde when he was at Mrs Mangwane's place. I tried to explain to him, I said to him, man, these people want you in the meeting.

He said he would go. There was a whole lot of us and then it was said that we should go and leave for the meeting.

ADV DE JAGER: Were you speaking to him while he was still inside the house or was he outside when you spoke to him?

MR POTYE: I spoke to him when he was already outside the house.

ADV DE JAGER: I've got a little bit of difficulty with your answers as to Mrs Mangwane's presence. Did you ever see her that day?

MR POTYE: I think I saw her that day, but I don't know whether I saw her in the house or she was outside the house. There was a whole lot of people, I don't remember clearly exactly where she was.

There was a whole lot of people there.

ADV DE JAGER: Did you ever speak to her or did she speak to you?

MR POTYE: I can't remember whether she spoke to me or not, it was too busy.

ADV DE JAGER: I only thought you never said actually that she was there, you say that you think she was there, you think she was saying something, so you are not sure about it whether she was there or not?

MR POTYE: Because of the number of people that were there, I can't remember clearly. There were too many people around.

It is difficult to answer specifically because I can't remember.

ADV DE JAGER: As far as Mr Monde is concerned, did you ask him to come with you or to accompany the group?

MR POTYE: Monde was asked to come with us, he was told that he was wanted at the meeting.

ADV DE JAGER: Was he sort of told listen, was he ordered to come with you or was he asked in an ordinary way listen, friend, come and accompany us?

MR POTYE: We were - he was just told that he is wanted at the meeting, and he was taken and he walked with us.

ADV DE JAGER: What do you mean when you say that he was taken?

MR POTYE: We got there and Monde was told that he was wanted at the meeting, and he was taken and we left with him.

ADV DE JAGER: Again, can you kindly explain to me what do you mean when you say he was taken? Was he grabbed, was he forcefully pulled or what do you mean by saying he was taken?

MR POTYE: When I met with him outside, he was being dragged from the house. Then I said to him that the people want you in the meeting, and then after that, we walked with him.

CHAIRPERSON: I think this would be a convenient stage to take the adjournment. The applicant will remember that he is under cross-examination still. We will now adjourn until two o'clock.



MZIKAYISE POTYE: (still under oath)

CHAIRPERSON: Mr Mapoma, have you further questions?

MR MAPOMA: Thank you sir, sir I have no further questions from this witness.


CHAIRPERSON: Re-examination?

RE-EXAMINATION BY MR MKANUNU: Mr Potye, you made an application on this form, is it correct, the form which you signed earlier on when you made an application, do you remember that?

MR POTYE: Yes, I remember.

MR MKANUNU: You remember quite well what you said in that form?

MR POTYE: Yes, I remember.

MR MKANUNU: You did that voluntarily?


MR MKANUNU: And nobody told you what to write in that form is that correct or wrong?

MR POTYE: I wrote it on my own, nobody told me what to right.

MR MKANUNU: In support of that application, you made an affidavit which you also signed, is that correct?

MR POTYE: Correct.

MR MKANUNU: The contents of that affidavit, did you understand that quite clearly?


MR MKANUNU: Do you understand English or not?

MR POTYE: No, I don't understand English.

MR MKANUNU: Do you understand the questions that are being put to you clearly?

MR POTYE: Yes, when they have been interpreted.

MR MKANUNU: Well, you have been asked a number of times just to be brief and to answer the question put to you. You understood that?


MR MKANUNU: Now, in page 2, paragraph 11(1) of the affidavit, you said and I am going to read it out to you and I hope you understand it, I was part of the group that went to seize Monde Nondumo at Mangwane's house, took him to the meeting which I Chaired firstly in the open area and later in a church hall.


MR MKANUNU: Do you - when you made that statement, you understood it? When you made the statement, you understood it?


MR MKANUNU: Now, when the word seize was interpreted to you or an understanding of that word in your language, what did you understand it to be?

INTERPRETER: The interpreter could not hear the speaker.

CHAIRPERSON: Speak up please and repeat what you have just said.

MR POTYE: What I said - could you repeat your question please.

CHAIRPERSON: The question was what did you mean by seize in your affidavit?

MR POTYE: I meant that when we were told to go and fetch Monde, we went and fetched him and took him to the meeting, that is what I meant.

MR MKANUNU: Now the paragraph I read to you earlier on, I am not going to read it again, did you understand the interpretation of the word seize in that paragraph in the interpretation?

MR POTYE: No, I did not hear the interpretation.

MR MKANUNU: I am going to read the paragraph once more to you. I was part of the group that went to seize Monde Nondumo at Mangwane's house, took him to the meeting which I Chaired firstly in the open area, and later in the church.

Now listen carefully to the interpretation.

MR POTYE: Yes, I listened.

MR MKANUNU: Now, do you understand it?

MR POTYE: Yes, I understand.

MR MKANUNU: Perhaps, let me just say for my benefit, I happen to know the language. If you could tell me what you understand in Xhosa, could you do that?

MR POTYE: That we went and fetched Monde from Mrs Mangwane's house, is that what you are asking?

I cannot give another interpretation of this, I said we went to fetch Monde, I can't give another interpretation.

MR MKANUNU: No, listen carefully to what I am saying to you now, the paragraph was read to you by me. It was interpreted to you by the interpreter. All I want to hear from you is what the interpreter said to you interpreted in that paragraph, so that I can understand perhaps what you are talking about.

MR POTYE: What I was saying was that we went, fetched Monde and took him to the open field meeting.

MR MKANUNU: You are not helping me.

CHAIRPERSON: He has answered your question repeatedly, he told you what he understands it to mean.

MR MKANUNU: I understand, I get your point Mr Chairman. Did Monde, the late Monde, voluntarily attend that meeting or not?

MR POTYE: He voluntarily went to the meeting.

MR MKANUNU: On page 3 of the affidavit, paragraph 12 it reads as follows: I left the meeting before finality could be reached as to what should be done with Monde Nondumo and heard the following morning that he was killed.

MR POTYE: That is correct.

MR MKANUNU: Thank you. Now you have told the Committee that so and so and so and so, you mentioned some names of people who sort of persuaded or were active in arriving at that decision. How did you know that?

MR POTYE: I heard when I was already in prison that it is Qobongwana's son who reached the decision. I was surprised and shocked that I was serving a sentence that they should be serving.

MR MKANUNU: How did you know that he was killed by Mzwandile's brother for instance?

MR POTYE: I was told by one of the comrades who had visited me.

MR MKANUNU: Now, in the evidence you have tendered here before the Committee, are you able to say which part of that evidence you know personally, for a fact, and which part you heard from other people?

MR POTYE: I know personally that I was - I know what went on in the meeting and I was there when Monde was being fetched. However, when the decision was already made at the meeting, I had already left.

That Monde was killed by Mzwandile's brother, I heard when I was already in prison because ...

INTERPRETER: The speaker was not clear, but it sounded like he was saying that he wanted to take this up to the relevant legal people.

MR MKANUNU: In paragraph 13.3, page 3 of the affidavit, you state 13.1, sorry, you admit taking part in the abduction of Monde Nondumo and also chairing the meeting prior to a final decision being made.

Just listen carefully to the interpretation.

MR POTYE: Yes, I was the Chairperson at the meeting and I was there when he was being fetched. I admit that is the truth.

MR MKANUNU: And the first part of that sentence, I admit taking part in the abduction of Monde Nondumo?

MR POTYE: Yes, I was there, I did take part.

CHAIRPERSON: What do you understand by the word the abduction of Nondumo?

MR POTYE: To abduct Monde, is to having fetched him and taking him to the meeting.

MR MKANUNU: If I may ask an indulgence, could I have the benefit of your Xhosa version of what was put to this witness of that paragraph. Just the interpretation in Xhosa.

INTERPRETER: Could the relevant paragraph be read out again and then the interpreters would interpret.

MR MKANUNU: 13.1, I admit taking part in the abduction of Monde Nondumo and also Chairing the meeting prior to a final decision being taken.

ADV DE JAGER: Mr Mkanunu, I know about the problems with interpretation whenever you interpret, but if you would listen, I think it is channel 1, I am not sure, then you will be able, oh channel 3, then you would be able to follow in the language that is actually spoken, and not the interpreter's language.

You could be of assistance to us, if you could control the interpretation in the sense of, because I know one word in one language haven't got the same meaning even if you want to interpret. If you think there is something wrong, kingly tell us if you find a mistake.

MR MKANUNU: I will do that if I find it to be so. I just want to listen to the interpretation.

INTERPRETER: Sir, the interpretation is simultaneous, as you read out the paragraph, it was interpreted.

CHAIRPERSON: If you will listen to channel 3, turn your machine to channel 3, I will read out the paragraph and they can interpret it.

MR MKANUNU: Yes, it is on 3.

CHAIRPERSON: I admit taking part in the abduction of Monde Nondumo and also Chairing the meeting prior to a final decision being taken.

MR MKANUNU: Thank you. I heard it quite clearly. I don't have a problem with the interpretation.

I am not sure whether I've got a problem perhaps with the understanding of the person.

CHAIRPERSON: But your client has told us what he meant.

MR MKANUNU: The interpretation in Xhosa is precisely that I admit taking part in the abduction, which is not the ordinary taking a person.

ADV DE JAGER: Could this be interpreted to the applicant, if you abduct somebody, you are taking him against his will, you are forcing him to come. If they used the word abduction.

If you are using the word call or fetch, then it is not signifying that it was against Monde's will. Now, if you bear that in mind, could you tell us what you meant by saying you took part in the abduction?

MR POTYE: According to the language that I speak, to take part is to be present when the deceased was being fetched.

INTERPRETER: Could the interpreter be given a moment to explain again to the applicant.

MR POTYE: I understand now. When I was there speaking to him, when he had already walked out of the house, I just said to him let's go to the meeting to see what you have been called for.

After I had said that to him, he just walked. I didn't have to drag him or pull him or hit him. When I spoke to him after he had walked out of the house, he just walked naturally. I was trying to advise him to go to the meeting voluntarily and he did that without being beaten or anything like that, as far as I know.

MR MKANUNU: Is it correct that you were found guilty of kidnapping?

MR POTYE: Yes, I was found guilty.

MR MKANUNU: Was that finding correct?

MR POTYE: I did not mishandle Monde, therefore I was not guilty of kidnapping him. I did speak to him, but I did not touch him.

MR MKANUNU: Could you just answer the question, was the finding correct?

MR POTYE: It was not correct.

MR MKANUNU: Thank you Mr Chairman.


ADV POTGIETER: Mr Potye, you say that the finding was not correct. What do you understand by that finding, what does it mean if the Court finds you guilty of kidnapping, to you, what does that mean?

MR POTYE: I was found guilty by the court of law, but I personally feel that I am not guilty of kidnapping because I did not forcibly take him.

ADV POTGIETER: So what you are saying is that you, yourself did not force the deceased, Monde, you didn't force him yourself?

MR POTYE: No, I did not force him. I just spoke to him. I said to him that he is being called to a meeting.


CHAIRPERSON: Did anybody force him or did he just come when you spoke to him?

MR POTYE: When I spoke to him and tried to persuade him, he just started walking.

ADV POTGIETER: You were never inside the house where Monde was sitting, you saw him sitting at one stage, not so?

MR POTYE: I was outside in the yard. When I came across him, I just spoke to him.

ADV POTGIETER: Now, did I hear you correctly, did you tell us that they dragged him out of the house, that is Monde?


ADV POTGIETER: So at one stage you saw him sitting inside the house, and later you saw people dragging him out from the house?

MR POTYE: The first time I saw him, he was inside the house. Then he was taken out of the house. When I was walking, before I got into the yard, he was being dragged out of the house, then when I got into the yard, he was also outside in the yard, that is when I spoke to him, after he had been dragged out of the house.

ADV POTGIETER: And after that, after he was dragged out of the house and after you spoke to him, he was just walking with the group of people?

MR POTYE: Yes, he was just walking. He walked to the meeting.


CHAIRPERSON: Just one point I would like to clarify if you can help me. Somebody called Mrs Jaka apparently gave evidence at your trial. Do you know, remember that woman?

MR POTYE: No, I don't remember Mrs Jaka.

CHAIRPERSON: A Mrs Evelyn Jaka who said that the deceased was in her house.

MR POTYE: Is that Mangwana?

CHAIRPERSON: I don't know, I am asking you. Did Mrs Mangwana give evidence at your trial?

MR POTYE: Yes, she did.



CHAIRPERSON: Any further witnesses?

MR MKANUNU: Yes. If you could just adjourn sir, let them look for him outside.

ADV DE JAGER: Could I perhaps put my problem to you before we adjourn so that you could consider it.

Whether Mr Monde was abducted or not, seems to me to be immaterial at this stage as far as the applicant is concerned because on the applicant's evidence as I understand it, he didn't take part in the abduction, if there was an abduction, and he is innocent of abducting anybody.

As far as he is concerned, the person walked voluntarily, but even if not so, he didn't do anything or associated him with using force to persuade Mr Monde to attend the meeting.

If that is the position, could you kindly apply your mind to the question of whether the applicant is guilty of an offence for which amnesty could be granted by the Amnesty Committee, seeing that we are not sitting as a Court of Appeal to decide whether a conviction was correct or not correct.

We are actually dealing with guilty persons who apply for amnesty and not with innocent people. If you could perhaps consider that during the adjournment.

MR MKANUNU: I thought you wanted me to respond perhaps, except to say number one, it is unfortunate that as a member of the Committee you have made an evaluation as you have made now, prior to us making any submissions. I take your point, but it is at the same time unfortunate.

My understanding perhaps is that the area that you have covered, or raised, the concern you have raised, would be addressed in our submissions. Thank you.

CHAIRPERSON: We will take a short adjournment for Mr Mkanunu to try to find his witness.



















DATE: 22-06-1998


DAY: 1


MR MKANUNU: Mr Chairman and members of the Committee, the next witness we are calling is Mr Michael Ndzotoyi.

CHAIRPERSON: Sorry, could you repeat his surname?

MR MKANUNU: Michael Ndzotoyi.


ADV POTGIETER: Just before we listen to your testimony, I am going to ask you to take the oath, can you just switch on your microphone by pressing on the red button there please, the red button. Can you please stand.

MICHAEL NDZOTOYI: (sworn states)

EXAMINATION BY MR MKANUNU: Thank you. Mr Ndzotoyi, how old are you and where do you reside?

MR NDZOTOYI: I am 51 years old and I am staying in Walmer, 62 Union Road.



MR MKANUNU: Mr Ndzotoyi, also I think let's clear it right now, do you want to speak in English or do you want to use an interpreter? The choice is yours.

MR NDZOTOYI: I am comfortable with English and Xhosa, I think I would speak English for the benefit of the panel.

MR MKANUNU: Thank you very much.

CHAIRPERSON: Will you then make sure that his earphone is through to channel 2.

MR MKANUNU: During the period 1980 to 1990, where were you residing?

MR NDZOTOYI: I was residing in KwaZakhele. I was residing in KwaZakhele.

MR MKANUNU: Were you involved in any organisation during that time?

MR NDZOTOYI: I was General Secretary under the UDF of Pebco, which was responsible for most of the campaigns during the UDF time, including the one that we are talking about here.

MR MKANUNU: What is the full name of the acronym Pebco?

MR NDZOTOYI: Port Elizabeth Black Civic Organisation.

MR MKANUNU: Were there any structures, sub-structures of Pebco in the area?

MR NDZOTOYI: We had street and area committees, anti-crime committees. Yes, that is it.

MR MKANUNU: Did those structures have any specific functions?

MR NDZOTOYI: They arose out of the demise that we were faced with, that is the government could not function properly, it could not communicate with communities. This structures were there to administer to see to problems that arose from the communities, to bring about tranquillity amongst the communities.

MR MKANUNU: What was the political mood during that period?

MR NDZOTOYI: There was total onslaught on the side of the government, that is the apartheid government, against all progressive structures, organs of civil society.

The struggle had reached its highest, it was on its highest at that time. The enemy was killing people like flies.

MR MKANUNU: Were they, was the so-called enemy doing anything to protect the welfare of the community?

MR NDZOTOYI: What we regarded then as the enemy, was a composition of the following: the Kits Constables, the Police, the Special Branch, SADF, askaris and informers. Those were the structures that composed at that given point, given time, the enemy.

ADV POTGIETER: During that period, are you able to say briefly what the youth in particular were involved in?

MR NDZOTOYI: As I had already stated that we had sub-structures that I have mentioned, because of the onslaught of the Police, there had become defensive structures, structures that arose to defend communities against the Police, the informers and so on.

These structures were called amabuthu. It was mostly the youth. In other words people's (indistinct), they were there to defend whatever we had gained, and also the annihilation of our people.

I do not know whether that suffices and marshals also as our structures, marshals to keep peace.

MR MKANUNU: You mentioned earlier on the killing, indiscriminate killing of people. Were there also funerals?

MR NDZOTOYI: What was happening, it is difficult for me to make all of you understand what was going on there because it is only those people that were directly involved, like the follow who had spoken here, that can really, really explain what - I can understand what he is saying, but somebody who was not there at that time, who did not feel the atmosphere itself was tense.

There was a barbed wire dividing New Brighton from KwaZakhele, there was shooting on sight from SADF, there were (indistinct) T59 which was killing on sight, at random. There was teargassing, even in churches. There was detention without trial. People were being raped and killed by members of SADF.

There were smashing of doors at midnight, people were wrongfully arrested. Some of them sentenced for things that they did not do, some of them were in prison with us, at Robben Island at well as St Albert.

At this point in time, we saw the disappearance, the enemy was really on an onslaught. We saw the disappearance of the Pebco 3, Hashe, Godolozi and so on at this time. Before that Mtimkhulu, Madaka, the disappearance of one of our Chairperson of the street committee, Maqaka. Disappearance of Kigana.

In Cradock, we see the massacres in Uitenhage and so on. The state of emergency which worsened things, this was the situation where the Police had taken a back seat and the Army was now running our lives in the township.

This is the situation, this is how the situation was like at that given point in time.

MR MKANUNU: Thank you. That is the evidence.


CHAIRPERSON: Any questions?

CROSS-EXAMINATION BY MR NYOKA: Just one Mr Chairperson Mr Ndzotoyi, when an askari informer was found by any of the structures that you mentioned, what was the procedure taken to deal with such a person?

MR NDZOTOYI: We never gave any orders what should be done to askaris as the collective leadership, but a number of things happened.

Here people - I do not know whether my explanation will - let me give you more or less a picture - it was difficult in our township because the Police had sent, there were a number, a large number of informants amongst ourselves. There were people that were arriving, that were disillusioned from outside, askaris that were infiltrating the township, thereby making people to be arrested.

People had to defend themselves against these things so that from us, as the leadership, was not a word or a procedure as to what must be done to these people.

People defended themselves with whatever means they had. I do not know whether I have answered you.

MR NYOKA: Let me reconcile my question and be particular. Did at any stage as Secretary General of the Pebco, did you receive any report that there was a troublesome askari called Monde Nondumo, he is causing havoc in the township by his so-called counter political activities. Did you at any stage during that period receive such a report?

MR NDZOTOYI: There were quite a number of askaris that had arrived. Fortunately I know the area (indistinct), I stayed there, but I had to run away because that was one of the hot spots. The hot spots were Soweto, Bisotweni and Red Location.

I heard that there were askaris in that area. That is some of the reason that I as one of the leaders, moved out of Bisotweni because the Police knew about our movements. I did not know about the name, but there were a number of them that had arrived at Bisotweni.

CHAIRPERSON: From your answer I take it that you had not heard this name, you said you didn't know this name, it had never been told to you?

MR NYOKA: No further questions Mr Chairman.


CHAIRPERSON: Any questions Mr Mapoma?


CHAIRPERSON: Re-examination?

MR MKANUNU: None sir.


CHAIRPERSON: Any questions?

ADV POTGIETER: In terms of the experience at the time you have sketched the mood, the political mood and the situation that prevailed. Assume somebody was suspected of having acted against the community either because the person was thought to be an askari or the person was thought to have been undermining the struggle of the community, was it common place that a person like that would be summoned to a meeting?

MR NDZOTOYI: I think we were an arm mature enough, most of us are ex-Robben Island prisoners. What we did because in order to save people's lives, we had opened a forum where people would go to the stadium if they had their own problem, and express their views.

A number of them, to make an example, I remember about 38 counsellors, we gave them a platform to come and explain to the people and ask pardon from the people that a platform of that nature was there. Some cases were sorted out by street and area committees resolvement. There were forums for people to come out and say I've made a mistake, I am sorry and then we accept those people, were accepted amongst the people.

ADV POTGIETER: Let's take it on the level of the street committee, not the higher level in the community.

Assume that there is an allegation that somebody has acted in a way that undermines the struggle that the community was involved in as you had described it to us, and assume that a meeting is convened for the purpose of dealing with that particular issue, how is the presence of the person in question, how is that normally secured. How is his presence secured to attend the meeting?

MR NDZOTOYI: What used to happen, let me start from the beginning, what used to happen, people would - there would probably be suspicions, there would be suspicions, not probably, that particular person would probably be called by the lowest structure which is his street, be called to come and appear to explain these allegations.

That particular person, if that case is above the street committee, then it goes to the area committee. Whatever decision they take, will finally reach us, must finally come to us. We as a leadership, would explain what must follow. I do not know whether you follow, from the street committee to the area committee and from there, whatever decision they took, we finally had to sanction that.


CHAIRPERSON: Do you mean by that they couldn't do anything themselves, they had to have your authority to do things?

MR NDZOTOYI: No, no, they could take a decision, but they could not carry that decision out without informing us as the leadership that this is the situation.

ADV POTGIETER: Yes, now, let me just come back to the point here. Assume a person who is required to attend a meeting, refuses to do so, what was the experience, what would normally happen?

MR NDZOTOYI: To be honest with you, the situation was so tense and to anybody amongst here, who stayed here in PE, if 15, 20 people came to your place toyi-toying, you went to where they want you to go, voluntarily.

It doesn't matter if you were at leadership level or whatever. That is how tense the situation was. I will not deny that in some instances people were manhandled, but in most cases people just moved.



MR MKANUNU: That is the evidence Mr Chairman and members.


MR NYOKA: Nothing further Mr Chairman.



MR MAPOMA: No evidence Mr Chairman.


CHAIRPERSON: Are parties ready to address us now or would they prefer to do so tomorrow morning when we start at nine o'clock?

MR MKANUNU: I would prefer tomorrow morning at nine o'clock.

MR NYOKA: I am ready Mr Chairperson.

CHAIRPERSON: Well, I think we will be guided by the applicant.

Can you be here at nine o'clock?

MR MKANUNU: Yes, I will make arrangements with court cases.

CHAIRPERSON: Right, we will adjourn this matter until nine o'clock tomorrow morning. Do we have another matter to proceed with? Do you want a short adjournment to sort things out?

MR MAPOMA: Yes, sir, I would like a very short adjournment.

CHAIRPERSON: We will take a short adjournment.



CHAIRPERSON: Are you ready to proceed Mr Mkanunu?

MR MKANUNU IN ARGUMENT: Yes, I am Mr Chairman and members. The applicant Mr Chairman, was born during June 1969, at KwaZakhele and he hardly attended school, he went as far as standard 1.

At the age of 15, he was perhaps because of circumstances beyond his control, became part of the liberatory structures. This continued under extreme political repression in this country which was highlighted by Mr Ndzotoyi in his evidence.

Clearly one would have expected a person of his age in particular, his degree - level of education to have been undoubtedly subjected to immeasurable traumatic you know circumstances. He in my view, if you look at his evidence here yesterday, he you know, in my view, exposes that kind of situation, he is a person who is in custody for a long time and when he testified, he kept on harping on what he has not applied for, that is the murder and he even broke down and not the kidnapping.

He was even telling you members that you know, people, his languishing in jail while the people who committed the murder, are outside. So upper most in his mind is the issue relating to the murder, the actual murder and you know, he was articulating that in my submission.

He is - he was described by the trial Judge in part of his judgment as a pathetic most unsatisfactory witness and an obvious and unmitigated liar. Well, that is his view over the matter, but except to add that clearly this also impacts on his understanding of what is happening, it impacts on the age at the time this offence was committed and it impacted also on his IQ.

We are dealing with a person who may be living in the past in my view. He grew up in the last decade, a decade of extreme repression as I have said and he is that kind of person who still lives in the past and has not outgrown the last decade in my submission.

He completed an application form in which he set out the events in respect of which he is seeking amnesty. He further completed an affidavit setting out you know, precisely what happened on that day and his involvement therein.

If both documents together with the judgment are looked at, it is my submission that the circumstances surrounding this incident, are clearly set out in those three documents before you. The question of whether he came out honestly and truthfully before you, it is my view subject to the type of person I have highlighted earlier on and consequently it is my submission that the members of the Committee should look at the documents before them, and disregard his evidence yesterday and having done that, come to a conclusion as to whether he should be granted amnesty or not.

I will not persuade you more than say I am admitting that he had a lot of serious contradictions and it was worse when it came to kidnapping, because he referred to taking instead of forcibly taking. It is my submission that you know, you should look at the evidence in regard to his role which he played, even if he minimised it before you. I am submitting that the documents speak for themselves.

Looking at the Act itself, Section 20(3) sets out you know the criteria but if I may start with the bottom part of that Section which says but does not include an act, the exclusion aspect and it says it is for personal gain or out of personal malice.

It is my submission that what came out here yesterday, was that none of those factors are involved. He had no personal gain in the matter and he had no malice against this person. No ill will or spite. All he said was the circumstances that led to this man's capture.

Consequently it is my submission that the application looked at as a whole, is in my submission within the parameters of subsection 3 of the Act, Section 20(3).

The motive for which the act was committed, the context in which it was done, the legal and factual nature of the act, the objective and objectiveness and the relationship between the act and the political objective, I submit that all those criteria's are met in the documents before you, except to say of course there was no order.

It is my submission that you are dealing with a person who in spite of his performance before you, ought to be seriously looked into and granted you know, amnesty - especially in the light of the evidence relating to what the prevailing circumstances during that period and the consequences that led, circumstances that led to the kidnapping and ultimate death of the deceased.

I will stop there Mr Chairman and members, and if there is anything else you would like me to ...

CHAIRPERSON: What about the evidence he gave before us?

MR MKANUNU: Yes, I am asking you to ignore that evidence.

CHAIRPERSON: He gave it before us under oath, isn't that of great importance?

MR MKANUNU: Yes, Mr Chairman, in the same manner as the completed application form, together with the affidavit which are both on oath, you are faced here with a situation where the applicant made an application under oath and submitted a statement on affidavit under oath, and came here to testify under oath.

You've got, in my submission, you have to take into account all those factors, balance them, because in my view, they all carry weight and it is my submission that in the light of the circumstances, you should find in his favour, in the light of the other factors as against the evidence which he gave under oath yesterday. Thank you.

CHAIRPERSON: Should we find he has made a full and frank disclosure?

MR MKANUNU: It is my submission that you should find that he has made some disclosure. Whether it is a full disclosure, I am saying Mr Chairman, the full disclosure is in the documents preceding his evidence, which are also under oath. In the application he made a full disclosure, in the affidavit he made a full disclosure and it is only in his oral evidence, that you know, there is doubt as to whether he made a full disclosure.

It is my submission that the application complies with the requirements of the Act and that the acts or the offences committed, fell within a political objective and in a political set up. Whether he has made a full and final disclosure, it is my submission that he has made part of that disclosure and I am asking that to establish really that full disclosure, it is contained in the documents which are filed of record, not necessarily in his oral evidence.

CHAIRPERSON: But you see one of the problems I have is in his application he says on page 2, paragraph 9.4 the victim conducted acts of terrorism within the community as well as criminal acts. He was kidnapped. Not I kidnapped him.

Even there he is not coming forward completely frankly, is he?

MR MKANUNU: Well, I suppose in my view he is. He is part of the group that kidnapped him, because in his affidavit I think, he sets out that position clearer.

ADV POTGIETER: Yes, in paragraph 13.1.

ADV DE JAGER: Aren't we having the same problem that people don't easily understand the doctrine of common purpose. He did nothing, but he associated him with the persons who abducted, he went with them, he persuaded the deceased after he had been dragged out of the house, after he had been forcefully kidnapped, he persuaded him to sort of accept your kidnap, your being kidnapped and well, cooperate now.

Wouldn't that be a factor or the reason why he is not admitting doing the act himself and he can't understand that he is being found guilty because he had associated himself with the real kidnappers?

MR MKANUNU: I agree with that view entirely.

CHAIRPERSON: Isn't one of the problems adopting that, that one has then to ignore mainly most of the evidence led?

MR MKANUNU: You mean the oral evidence Mr Chairman?

CHAIRPERSON: The evidence led at the trial? He didn't just go along with them.

MR MKANUNU: I am not sure whether you have the benefit of the entire typed transcript of just the judgment. I have seen the documents, it is only the judgment.


MR MKANUNU: Well, it is subject to the opinion of the Presiding Judge.

CHAIRPERSON: It is not an opinion, he is stating fact. He is not expressing opinions. He is saying what the witness said.

MR MKANUNU: Mr Chairman, I am not trying to criticise that Judge, I am merely saying we didn't have the benefit of looking at the entire transcript of the record.

CHAIRPERSON: Well, we can get that. What he says is, for example at page 10, this is dealing with the evidence of Mangwana Sweyisele, accused 1 held him by the one wrist and accused 2 by the others. The deceased was protesting and managed to escape from the grip of accused 1 and 2.

This is the Judge giving a summary of the evidence, when they ran to Mrs Jaka's house. He deals with the evidence of Evelyn Jaka, of this man Jam who came. Zweliswa Veronica Mangwana testified that accused 1 and 2 seized the deceased by his wrists and took him away by force.

At the vacant land his hands were tied with the rope. There are all these things, passage after passage after passage, none of which the applicant has told us about. He denied them all. What do we do, he appears to be lying to us and he hasn't disclosed them in his application or in his affidavit, has he?

MR MKANUNU: Mr Chairman, I think number one, one has to take into account the state of mind and the type of applicant I have set out earlier on and secondly, having that in mind, what comes out clearly even in the judgment is that it was an activity involving a large number of people.

He was part of that group.

CHAIRPERSON: Yes, he was the Chairman.

MR MKANUNU: And if you recall, even yesterday, he could not recall whether Mangwana was present or not, for instance when they went to fetch the deceased.

This incident happened about six years ago and he has been in jail. As to his memory, I am not going to say, to vouch whether his memory is bad or his memory is good, but it has got clearly ...

CHAIRPERSON: Well, his memory appeared to cause you great surprise yesterday.

MR MKANUNU: I agree with you.

CHAIRPERSON: That is a problem we have to face, isn't it?

MR MKANUNU: I agree with you Mr Chairman, in the sense that the memory caused me great problems yesterday, I agree. This affidavit which is submitted here, was completed and submitted hardly a month and ...

CHAIRPERSON: Less than two weeks ago.

MR MKANUNU: Correct, and you are dealing with that kind of person. It just shows what kind of mentality the applicant is.

CHAIRPERSON: Yes, that is the problem, that kind of mentality. Now the Act says he must make a full disclosure. His mentality seems to be that he is not prepared to do so.

MR MKANUNU: I am not sure Mr Chairman, that that should be the approach. In my view the approach should be that he was part of an activity - as to what he actually did collectively together with others, should be taken into account.

He admitted for instance amongst these issues, that he presided over a meeting. He admitted that he even went to pick up the deceased somewhere when he was taken away by somebody else.

CHAIRPERSON: Yes, he was rescuing him the others.

MR MKANUNU: Correct.

CHAIRPERSON: A completely different version from that led at the trial.

MR MKANUNU: There were isolated incidents in which he came up with some version of some sort.

CHAIRPERSON: Which appear to be untrue.

MR MKANUNU: Well, whether they were untrue or not, in my submission they were reflecting on the past and on what happened.

ADV POTGIETER: Mr Mkanunu, I think perhaps just to pick up on the issue that my colleague, Adv De Jager has raised, I am not sure and the Chairperson has been debating with you, I am not sure how we decide the application before us, what material. We only have the version of the applicant, nobody else, neither the family, nor the evidence leader has placed any evidence before us.

We have a judgment where certain conclusions were made, we are not sure what the effect of that should be. I, speaking for myself, taking into account the testimony that was placed before us and then looking at that testimony and bearing in mind, I think the point that you made that the applicant was fixed somehow on the murder, perhaps understandably so for a person in his position, he was talking about the murder predominantly. He hardly dealt with the kidnapping, but even if one takes his testimony as it stands, the point he was trying to emphasise was, he didn't himself apply any force to the deceased.

Then of course the question is how do we decide whether the conduct in question is amenable to amnesty, whether the applicant himself must tell us it is a crime or whether we must look at the factual circumstances and say look, does the testimony before us disclose a crime or not.

That is where the question of common purpose come into it. Those are a lot of the issues that still seem to me to be not settled and not clear in this matter. In any case, I am just raising it just to place some of my own very, very preliminary views.

MR MKANUNU: Well, just to - not to respond, just to add on that, that is why I said you know, if you look at all the documents and look at the situation which was prevailing at that moment, especially taking into account, not only the applicant's evidence, but the evidence of Ndzotoyi, it was a scenario in which you know, clearly in my submission, the facts come out clearly that it was a political activity, that that was the issue.

Having established that political activity, the next issue is the participation of the applicant himself and thereafter you know, whether this act, that participation falls within the ambit of the Act, and in my view with those factors in mind, you should be able to arrive at a fair and objective ...

ADV POTGIETER: You mean for example if, I am sorry, I just want to finish it off, for example if the applicant had gone into the witness box and said look, I confirm my application and I confirm the affidavit and he stopped?


CHAIRPERSON: The problem Mr Potgieter has now raised, which is another one, is if one accepts the applicant's version as given in his evidence, was there any kidnapping?

Is there anything to grant amnesty in respect of? His version is they go to a house where the deceased is sitting perfectly peacefully. Somebody drags him out of the house into the yard, but once he is in the yard, the applicant talks to him, he walks along with no protest with the applicant, he goes to the hall with the applicant, he sits next to the applicant, is there any kidnapping there?

MR MKANUNU: Mr Chairman, there was kidnapping on that evidence, because if you take into account that the applicant was part of that crowd, part of that crowd that went into the house, even if he did not go himself personally as he says, and the person was forcibly removed from the house.

CHAIRPERSON: Is that kidnapping to drag him outside to talk to him, where he talks to a friend of his?

MR MKANUNU: Well, it was seen in that context.

ADV DE JAGER: On the other hand Mr Ndzotoyi - I hope I am pronouncing the name correctly - gave evidence and said the climate was such that no person could ignore a call to come and come to a meeting and to explain.

That is not physical kidnapping, but the intimidation was such that if you are called, you rather come or else. I don't know whether that would be kidnapping, but it is acting against one's will, you don't go voluntarily, but you go because of the threats in the whole atmosphere?

CHAIRPERSON: You have concluded have you?

MR MKANUNU: Yes, I have.

MR NYOKA: Thank you Mr Chairman. Mr Chairman, I have listened to the debate with interest of Mr Mkanunu. The issue here broadly is not only about what the applicant says but about what the institution of democracy including the TRC is about. It has to be promoted and protected at all times.

Once perpetrators volunteer to come forward before the TRC, whether they are white or black, they must say everything and nothing short of everything. Once it is a white perpetrator and he is subject to attack a black perpetrator who does not say everything, he must also be subject to attack because the institution is that of a non-racial society, finished and "klaar", in local language.

If a perpetrator applicant like Mr Potye comes forward it must be clear that all that he says complies with the requirements of this democratic institution the TRC, nothing short of that. Maybe the applicant misunderstood an essential component of the TRC process, that if he has to say something, that something that he has to say has to comply with the requirements of the Act.

If they do not, then he cannot get amnesty. One wonders why he could come forward and apply for kidnapping, but deny that very kidnapping under oath. What is the application all about. To be sarcastic one could easily have said that he should have gone to a church minister to apologise, not to the TRC Amnesty Committee.

If we have to lie to ourselves, we are worse than a country which has no TRC process. If we have a TRC process, let's abide strictly by its regulations without fear, favour or prejudice.

Section 21 of the TRC Act states three requirements that an applicant has to comply with the requirements of the Act, it is a (indistinct) requirement, the second one is that the act, omission or offence to which the application relates, is an act associated with a political objective, committed in the cause of conflicts of the past, and thirdly the applicant has made a full disclosure of all relevant facts.

Section 22 elaborates what is meant by the Act. It defines an act associated with a political objective as "any act or omission which constituted an offence or delict associated with a political objective committed between 1 March 1960 and the cut off date."

It is submitted that an applicant has to comply with all three requirements, not one of them or two, but all three requirements. It is submitted therefore that the applicant has satisfied only the first easy requirement of complying with the requirement of the Act in the form of the application form.

He has failed with the two essential requirements of an act, omission associated with a political objective and the full disclosure requirements.

The reasons being with regard firstly to an act associated with a political objective, on his own version before the Committee, the applicant did not admit any of the essential elements of kidnapping or abduction, a crime or offence envisaged by the Act in the circumstances as being an act associated with a political objective.

In fact the applicant who in his application applied for amnesty for kidnapping, refutes and rejects the conviction for kidnapping, which is the sole basis for his application, or any other offence which the law provides. It is not and has never been and will never be a criminal offence or a civil offence in this country, to go and fetch a person for any gathering and to voluntarily walk with such a person to a gathering.

If the applicant was wrongly convicted of kidnapping, one wonders why then he did not advance this defence as he stated yesterday, which could on its own have been reasonably, possibly true and secondly, why did he not appeal against the decision as the TRC amnesty forum is not there to help disgruntled convicted and sentenced persons, but to help those who admit their offences and confessing their roles as fully as possible in the offences for which they were convicted and sentenced.

In other words, the act or omission was never envisaged by Parliament to be an act or omission in a vacuum or one deeply dipped in intense emotional circumstances of the time, but one and only one constituting either a crime or a delict which crime and delict was one associated with a political objective.

Exactly what is the meaning of kidnapping. It is the unlawful and intentional depriving someone of one's freedom of movement against one will. Or it may be a fraudulent enticement to a person to come to a particular place.

In this matter there was neither an unlawful and intentional depriving of the deceased's freedom of movement, nor a fraudulent enticement to go to a meeting when the deceased was in the presence of the applicant.

There can therefore not be even a suggestion of a common purpose and when it became clear at the meeting that the deceased's freedom of movement was to be violated, the applicant had dissociated himself with it by words and by his deeds of leaving the meeting to go and sleep. I have noted Mr Ndzotoyi's comments that at those times in the townships it was so bad that when a group of people visited any person singing, that would instantly be deemed as abduction or kidnapping.

However, we are not guided by the ordinary layman's definition of abduction or kidnapping, but by decade's long legal and criminal or civil definition of kidnapping, which has no apartheid era definition or democratic era definition. For the purposes of the law in this matter, kidnapping or any other crime or delict has to be an offence or delict describable as such which has to be associated with a political objective.

The next question is, was this act of the applicant which is not an act as required by the law either a criminal offence or a delictual offence associated with a political objective.

In favour of the applicant, one could say broadly speaking the "act" was associated with a political objective in that the fact that structures under Pebco organisation were fulfilling, seen to be fulfilling a State functions, was a decisive sign of an (indistinct) defeat of the apartheid structure by liberation forces, however, narrowly and legally speaking, the meeting was a civic meeting to discuss a civic matter.

Crime in the townships and it could be argued that such an action was a civil function turned criminal by the death of the deceased, and not a political function in pursuance of a political objective, narrowly speaking.

As there were no political organisations like Pebco or UDF or representatives of such at the fatal meeting, to change into a political meeting.

Thirdly no political motive was demonstrated by the applicant even his previous dealing with the deceased as the applicant himself firstly said he did not believe that the deceased was an askari and he did not even know the circumstances under which the youth activist was shot and killed by the deceased, had any political connections.

To put it simply, it did not mean nor will it ever mean that when a politician was killed or is killed in the future, such killing had or will have anything to do with politics, without regard to the particular circumstances of that particular killing.

Furthermore it is suggested that it could not have been the deceased who shot and killed the youth activist, judging (a) by the poor lighting of only moonlight, (b) the distance between the applicant and the deceased, (c) the hedge separating them which was the height of the applicant. How he saw beyond the hedge which was of his same height, is also a source of a separate debate.

With regard finally to the requirement of full disclosure, disclosure means to say everything. The term full in front of disclosure was meant by the legislator ex abundanti cautela out of abundant caution to an applicant who say please say everything, you know disclose on its own means say everything, but full disclosure means everything.

This requirement is not fulfilled, is not only fulfilled when an applicant fails to testify about every relevant fact of an act, but also when he lies about what he says.

It is submitted that the applicant was not a reliable and truthful witness in that inter alia not saying everything. Firstly if the people at the meeting were angry and he had tried to stop them from harming the deceased, why then did he not go to the Police or senior UDF members to try to warn them of what could happen to his former acquaintance rather than going home to sleep?

Two, he told the Committee that he had told the Court that all he said was that he had Chaired the meeting, but within seconds he retracted that statement when a question of clarification was asked by the Committee Chairperson. In court the applicant said he was a mere spectator during the incident and thereafter left the meeting to go to a gymnasium.

During the amnesty hearing he admitted participating and going to sleep. It is understood that accused persons lied in court during the struggle cases of the apartheid era, but this version that he advanced today could easily have been stated, advanced during that criminal trial as it indicated innocence on its own and not guilt in terms of the law. Why did he not advance it then?

The applicant was a person who minimised or played down his own role, e.g. he said the deceased was dragged from inside the house, but as soon as he emerged outside and he was with him, the deceased walked calmly. Also at the meeting, he alone was a peacemaker.

Yet the two State witnesses during his trail testified that he had turned down the request that the deceased be released or taken to the Police.

Finally the mother of the deceased has no problem with the fact that during the apartheid era the State Security organs like Police, SADF and askaris and informers were (indistinct) to a new democratic order and committed gross human rights violations. She has no problem with the fact that the communities through their civic and political structures took over certain policing functions and dealt with violators of people's rights in the best way they deemed fit.

What however the mother of the deceased has problems with are that (a) if her son was either an askari or a political troublemaker, why then was he given a comrades funeral by activists on his funeral, (b) if the applicants were convicted of kidnapping and not murder and now applies for amnesty for kidnapping, why then does his statement not tally with the offence of kidnapping, and (c) and if her son had committed any of the offences laid, why was he not taken to the Police after being fetched for the laying of criminal charges, because it had been reported that Police were being told about this? Why was he not taken straight to the Police, especially regarding the incident that happened the previous night?

Why was her son not given an opportunity to respond to the criminal allegations at the meeting as it seemed that he had been presumed guilty even before he arrived at the meeting?

In closing the negotiators of our constitutional dispensation or founding fathers of our constitution and the parliament of our country, had in mind when discussing and agreeing on the new TRC legal institution a scenario where, if one committed an offence, criminally or civilly, whether he or she was convicted of it or not, or sued or about to be sued of it, that such a person should be indemnified of prosecution or being sued if he or she told the whole truth of the matter that was politically orientated.

If a person's act or omission did not constitute a criminal or civil offence, such a person was excluded from indemnification, or whilst his act or omission was such a criminal or civil offence, but was not politically orientated, then too such a person was similarly excluded.

Such an excluded person has to sit out his sentence or face being sued or merely just apologise to the victims, without obtaining anything in return like freedom. The acceptance of an apology would depend on the nature of the statement on its own.

I thank you.

CHAIRPERSON: Mr Nyoka, I notice that you seem to have been reading.


CHAIRPERSON: Can you let us have a copy?

MR NYOKA: Okay, it is just in my handwriting, I did it between ten and twelve in midnight.

CHAIRPERSON: What is your handwriting like?

MR NYOKA: It is better than average.

CHAIRPERSON: Can we have it photostatted?



ADV POTGIETER: Sorry Mr Nyoka, is there any doubt that the deceased was kidnapped?

MR NYOKA: Legally or ...


MR NYOKA: Legally?


MR NYOKA: No, legally the deceased was not kidnapped.

ADV POTGIETER: He was dragged from the house on the testimony before us, he was tied, his hands were tied at one stage. Are you saying that under those circumstances it does not fall within the definition of kidnapping as you had given it to us, unlawfully depriving a person of his freedom?

MR NYOKA: That is not what the applicant testified about. We are not having here applicants who came forward and said we dragged him out of the house and we tied him. We are having only one applicant and we must deal with that application as it comes.

CHAIRPERSON: But we have before us the judgment in the criminal trial, that is part of the record before us, isn't it?


CHAIRPERSON: And that sets out a summary of the evidence given by the witness.

If necessary we could obtain, or we could direct someone to obtain a copy of the record to verify that the judgment correctly reflects the evidence, couldn't we.


CHAIRPERSON: Now, doesn't that judgment make it abundantly clear that the deceased was kidnapped?

MR NYOKA: I didn't want to refer to the judgment, I wanted to refer to what the applicant came and say to us. The mother must accept that the applicant is saying I did kidnap your son, but that is not what he is saying.


MR NYOKA: So I am not referring to what others did or what the judgment say, I am looking at the application as it comes. What is the applicant saying consistent with his application.

ADV POTGIETER: And what is the weight of the papers, the affidavit and the application form which makes it quite clear that he participated?

CHAIRPERSON: And that he was kidnapped, the application says he was kidnapped?

MR NYOKA: The application does not to me say that he was kidnapped, it was said that the deceased was, as it was put, seized.

CHAIRPERSON: No, the application uses the word kidnapped. You are referring to the affidavit.


CHAIRPERSON: The application itself in the passage that I read earlier, paragraph 9(a)(iv) says he was kidnapped, taken to a public open meeting and later to a public meeting held in a church.

MR NYOKA: The application says he was kidnapped but he says that he did not kidnap him, so which is which?

CHAIRPERSON: That is the problem.

MR NYOKA: Unless the applicant, we won't oppose the application, it must be clear if the applicant says that I kidnapped your son, we will accept that, we will accept the apology, but that is not what he is saying so I do not know exactly what the drafting was about, about this application. It says kidnap, but he denies that.

ADV DE JAGER: But even if he was kidnapped, let's assume the facts of the judgment is correct, he was kidnapped, but the evidence is I didn't kidnap him. Other people might have kidnapped him, or the evidence is other people didn't kidnap him either, but the position is that he, himself, dissociate him as an offender in this offence.

So, as the Chairman put it even if the Court found and all the papers point to it that it was a kidnapping, he was an innocent bystander and not a kidnapper according to his evidence. Isn't that the position?

MR NYOKA: Yes, we will have three versions. The Court saying that he kidnapped, him saying in the court that he was a mere bystander but today saying that he went to fetch, there are three versions.

The next question that is crucial is under those circumstances, was there a full disclosure in the light of three versions?

ADV DE JAGER: As far as the affidavits are concerned, are these affidavits in any different position than other affidavits being given to the Amnesty Committee and not being tested by cross-examination?

MR NYOKA: What is your question, which affidavits?

ADV DE JAGER: I put it to you that we have had the position that they hand in affidavits, but then the person making the affidavit is not available for cross-examination. Then we say the evidential value of that evidence, it doesn't carry much weight, because he didn't go through the test of cross-examination.

Now we had two affidavits here, the application and the other affidavit, but the moment he gave oral evidence and was examined about the affidavits, he distanced himself from the affidavits. Which should carry more weight, his oral evidence or his affidavits?

MR NYOKA: Firstly, it would not be the problem of the victim's family that such a scenario arises when it does arise, secondly, one will question why if the affidavit was sufficient, why a person will go further and testify orally and thirdly, in my mind once a person testifies orally, he or she is supplementing what he is saying in his application, because what he said really orally, was not contained in the affidavit.

The affidavit was sketchy, so he elaborated further. What he said, really carries more weight than the affidavit.

CHAIRPERSON: When he says as he did when questioned by his own Attorney that he didn't mean to say seized in the affidavit, must we accept his evidence before us and say although the word seized was used in the affidavit, on the applicant's evidence, it doesn't mean seized?

You will recollect he was asked that and he said no, I meant we just went there and fetched him.

MR NYOKA: That is what I have argued. He should never say that by seizure I understand the word to mean taking by force and he denied that the deceased was taken by force.

Maybe that has to do with his education, (indistinct) of understanding, but I think the question of speaking the whole truth has nothing to do with academic qualifications, you just speak the truth whether you've got standard A or not, simply.

ADV POTGIETER: The point is Mr Nyoka, when we have to assess this application, when we have to look at this and we have to decide, it is one thing what an applicant says and you have made the submission to us that an applicant should as part of full disclosure, admit all of the elements of the offence, it is like a plea of guilty you say in a criminal trial, I should imagine.

But really, isn't our duty one that is not altogether identical with that in a criminal trial. We know the criminal tribunal, we are sitting under completely different circumstances. Don't we have to look at all the material that is before us and then ask ourselves whether taken all of that into account, what the applicant had said, what he had denied, whether there is still a crime or a delict disclosed, and then to decide the matter on the strength of that.

MR NYOKA: Thank you sir. Mr Chairperson, when we came here, we didn't come here to oppose the application, but once he opened his mouth and he denied what he said he was applying for amnesty for, we had a moral and a legal duty to oppose the application.

We have no interest how you decide it, but what I can say about your question particularly is that the term amnesty means what you give a person amnesty for, for an offence. Not for anything but for an offence, a legal offence. Amnesty and an offence go hand in hand, they are co-relative.

It is an amnesty application for an offence and a legal offence. If it was something more than that, we will need also then something more than a TRC institution, maybe something like a church organisation but it is up to you to take all those things into consideration. We have stated our point, we object to him getting amnesty, it is up to you how to decide, but once you talk about amnesty, you talk about an offence.

Someone must say I did, I committed an offence or an omission which is a legal offence or a delictual offence.

ADV POTGIETER: Yes, my question, my difficulty is just directed at that last section. I hear all of your other submissions, I have noted them. The question is just when a poorly educated person comes before us, and it appears that he is clearly under the impression that in order to be found guilty of kidnapping, you have to physically participate in the act of compelling the person, dragging him from the house for example, but isn't the point that he could be guilty of kidnapping on the basis of association for example, the common purpose thing that was raised earlier.

Isn't that the sort of approach that we have to adopt in spite of what the opinion of the applicant is, whether he was rightly convicted by the trial Court at that stage of kidnapping or not, mustn't we look at the matter objectively and say well, in spite of what he says, it is quite clear that he committed the offence of kidnapping on the general principles of association of common purpose, even if he hadn't touched the deceased?

That is the only point I was trying to raise.

MR NYOKA: Yes, we are not imposing upon you how to decide the matter, but what I can say is that we will understand quite easily if the applicant came on his own and was told that he must apply for amnesty. With due respect, there is no bad reflection on Mr Mkanunu, but he had a lawyer, he ought to have been told that on what you are saying, you are wasting your time in applying for amnesty.

This process is not to make it convenient for people who had committed offences that do not fall strictly within the requirements of the Act. That is what I am saying, but we are not imposing upon you how to decide it, decide it in whatever way, but we are saying that there was no common purpose and he has not complied with the requirements of the Act.

We are saying that in the interest of justice and fairness.

ADV POTGIETER: Thank you. Thank you Mr Nyoka very much, I followed your submissions.

CHAIRPERSON: One of the problems is this avoidance on the applicant's version of common purpose. His statement that had he known the man was going to refuse to come, he would have persuaded people to go back to the meeting and told them that he had resisted.

He had no intention of dragging the man to the meeting. He went beyond merely not saying anything, in his evidence he clearly thought to give the impression that he had no common purpose with what people were doing, hadn't he?

MR NYOKA: Yes, he did Mr Chairman. I mean he indicated that there was no common purpose with any person and unless he can be recalled to testify to that, really there was nothing and there was not even an indication that people were singing when they went there.

CHAIRPERSON: There was evidence that they were singing, but there was no evidence that they were toyi-toying as the senior witness spoke about later. He said when a crowd comes toyi-toying, you follow them. But in this case they were singing freedom songs.

There was that evidence.

MR NYOKA: Any further questions or comments?


MR MAPOMA IN ARGUMENT: Thank you sir. Chairperson, I just want to draw the attention of the Committee to a few issues. I want firstly to deal with the act of kidnapping.

CHAIRPERSON: Have you also got this written out?

MR MAPOMA: No sir. Chairperson, it is my submission that judging the evidence as it is, it appears that the act of kidnapping did take place on that day.

In fact the applicant in his application, in evidence says he has come to apply for amnesty because he was present as one of the people who fetched the deceased from the place where they fetched him.

Now the question arises ...

CHAIRPERSON: Where is this in his application?

MR MAPOMA: He said it under oath Chairperson, when he was cross-examined.

CHAIRPERSON: In his evidence?

MR MAPOMA: Yes, in his evidence. He was asked the question. Then arises the question, under which circumstances was the deceased fetched and it is my submission Mr Chairperson, that the circumstances were such that the deceased was bound to go, his freedom of movement was deprived altogether.

It will be remembered Chairperson, that he said that they went there as a group singing freedom songs and I want to put that into proper context Chairperson. Singing of freedom songs by a group of persons, that amounts to a toy-toyi Chairperson.

In fact, as it was the people went there toyi-toying to his place to come and fetch him. He had no option but to go and the applicant says he was part of those people. In it Chairperson, it would appear that he associated himself with the action that was taking place there. That of toyi-toying and going to fetch the deceased.

CHAIRPERSON: What regard do we have to the judgment in this regard? Is it part of the papers before us where the Judge sets out the evidence of various witnesses as to how the deceased came to be taken from this house?

MR MAPOMA: Yes sir, I submit sir that the judgment itself needs to be taken into account, but sir, I also want to venture to say that it may be dangerous to judge full disclosure of the applicant on the basis of the judgment.

It would be dangerous sir to use the judgment as a barometer of testing actual facts. I would in this regard Chairperson, for instance draw the attention of the Committee to page 9 of the bundle, where in paragraph 20 of that judgment, the judgment reflects that the reason why the deceased was taken and the complaint against him was that he killed the applicant's son, which Chairperson is blatantly incorrect as the case is ...

CHAIRPERSON: Yes, but that is not a summary of evidence given before him. He is putting conclusions there isn't he?

I am talking about where the Judge says the witness, so and so, said this. The witness said this, the witness, so and so said that. It is your function as I understand it, to put the evidence before us on which we can come to the proper conclusions.

If this is wrong, why has the record of the proceedings not been put before us?

MR MAPOMA: Sir, it will be appreciated that all these problems now which would call upon us to call those witnesses, arose at the public hearing now otherwise as it was before, the application as it was, together with the affidavit as it was, were not that much contradictory to the judgment itself.

It only came out at this hearing. If Chairperson would - the circumstances would force it, then we may be compelled to subpoena those witnesses who gave evidence in court.

CHAIRPERSON: Was there a pre-trial hearing?

MR MAPOMA: No sir, we did not have a pre-trial hearing.

CHAIRPERSON: Why not, I thought that was the practise?

MR MAPOMA: Yes, that was the practise, but unfortunately the circumstances as they were, Mr Mkanunu arrived when we were about to start, unfortunately.

CHAIRPERSON: But you could have made contact with him beforehand and asked him whether he was prepared to admit the correctness of the transcript of the judgment and what was set out, matters of that nature should be settled at pre-trial hearings so time is not wasted and Attorneys are not put in an embarrassing position by not having settled it beforehand. It wasn't done here, you weren't asked were you?

ADV POTGIETER: Is your position that on what was placed before the Commission in terms of the papers, there didn't appear to be this kind of potential difficulty arising in regard to testimony given at the trial and possible testimony at the hearing itself?

MR MAPOMA: Absolutely sir, that is exactly what I am saying. As it were, we were labouring under the assumption that the applicant is here to confirm what is contained in the affidavit and what is contained in the application.

That is all that I wanted to make submission.

CHAIRPERSON: Do you want to say anything further Mr Mkanunu?

MR MKANUNU: Mr Chairman, save to say that you know, I have heard certain submissions that were made in particular by the representative of the family, and you are here not as people who are coming from another world, who have just, you know, landed on earth and having landed on earth, you look - you have that kind of scenario.

The Act was provided you know that you should look into the various aspects and establish and satisfy yourself that amongst other things I think, the primary factor is that there was an offence committed and secondly it was, there as a political objective.

CHAIRPERSON: And full disclosure I regret to say. It appears in the heading of the Act, it appears in Section 21(c), it is a requirement.

MR MKANUNU: I accept that that is a requirement, but I am saying you are not here to interpret the Act in a narrow way, but here to look at all the factors and broaden your scope because this was intended to you know, to give amnesty to people who had committed offences which were related to political activity and if you look at the totality of the documents before you, those documents then you know, bear testimony to that.

I understand perhaps I personally would have no difficulty about (c), because I think I dealt with (c), the required full disclosure and so forth in the sense that you know, the documents before you had made a full disclosure and the question of conflict only arose when the applicant testified and was subjected to cross-examination.

One would go back to the same scenario where one would say had the applicant merely said I confirm all this, I am not answering any questions, would you have said he has not made a full disclosure?

CHAIRPERSON: Yes, he is not entitled to say I am not answering any questions.

MR MKANUNU: But that would not impact on full disclosure, that is the point I am making Mr Chairman. In any event I am saying you should look at it broadly and arrive at a decision that is fair to all and in keeping with you know the mission you are charged with.

CHAIRPERSON: Very well, we will take time to consider our decision. I think also it would be only fair Mr Mkanunu to give you also a copy, we are getting a copy of the submissions and to say that if we then what is today, Tuesday, by Friday you wish to make any certain submissions arising from that, you may do so if you let us have them in writing by Friday.

MR MKANUNU: Thank you Chairperson.

CHAIRPERSON: We will now take a short adjournment while we prepare to deal with the next matter.