DATE: 13-10-1998




DAY: 2


CHAIRPERSON: Good morning. We want to start. Adv Steenkamp, the matter of Manyamala, what is the position with that? I thought that we will listen to the application which Mr Shayi wanted to bring, to amend his application and then to listen to the address. What is the position with that?

ADV STEENKAMP: Mr Chairperson, they haven't arrived yet, I haven't seen them yet. Because of the decision yesterday that we must start on time, we decided with all due respect Mr Chairman, if you would allow, to start with another matter.

It is the only applicant Mr Chairman, and the Attorney was here as well at nine o'clock, as you wish Mr Chairman.

CHAIRPERSON: I assume that Mr Manyamala is here, because I had seen the Correctional Services arriving?

ADV STEENKAMP: Correct Mr Chairman, he is here actually. He was here very early as well.

CHAIRPERSON: Is there any indication what has happened to his legal representatives?

ADV STEENKAMP: Mr Chairman, I haven't seen them as of yet this morning. They haven't contacted me, I assume there is some sort of logistical problem. I don't know sir.

CHAIRPERSON: So I assume we will then deal with the matter of Khumalo?

ADV STEENKAMP: If you please Mr Chairman, we start with the matter of Khumalo.

CHAIRPERSON: We shall do so. For the record, it is Tuesday, 13 October 1998. It is a sitting of the Amnesty Committee. Presiding is myself, Denzel Potgieter. With my on the panel, on my right is Adv Gcabashe and on my left is Mr Sibanyoni.

We are dealing with the application of Bongani Christopher Khumalo, reference AM0281/96. Mr Steenkamp just for the record?

ADV STEENKAMP: Yes, Mr Chairman. Mr Chairman, I was informed and you will see there are also copies of these notices as far as Section 19(4) is concerned, all the victims names were called out again this morning outside Mr Chairman, and honourable members. As far as we could establish, none of them are in attendance.

I would respect Mr Chairman, with all due respect, that we proceed with this matter as it stands. Thank you Mr Chairman.

CHAIRPERSON: Were they given due notice of the hearing today?

ADV STEENKAMP: I beg your pardon Mr Chairman?

CHAIRPERSON: Were they given notice of the hearing today?

ADV STEENKAMP: Yes, Mr Chairman, the copies of the notices as well as the service, acknowledgement of receipt of the services, are contained in the bundle. At the back of the bundle, actually starting on page 48 till the end Mr Chairman.

I was also informed that we did not receive any communication of any of the victims.

CHAIRPERSON: You are asking that we proceed with the matter?

ADV STEENKAMP: As you wish Mr Chairman.

CHAIRPERSON: In the circumstances, it appears that notice has been duly given to the persons with an interest in this application, in terms of Section 19(4) of the Act, 34 of 1995, and in the circumstances, we proceed to hear the application of Khumalo.

Mr Mhlaba, do you want to just put yourself on record?

MR MHLABA: Thank you Mr Chairman, my name is Mhlaba, I am acting for the applicant in this matter, and the applicant wishes to testify in Zulu.

CHAIRPERSON: Thank you very much. We will proceed to let the applicant take the oath.


MR MHLABA: Thank you Mr Chairman. Before dealing with the application, I would want to make an application on behalf of the applicant, for the amendment of paragraph 9 of the application form.

Mr Chairman, it would appear that the application as it stands, and the bundles as they are before the Committee, deals with a particular incident or incidents which happened in Soweto. It transpired however, that the applicant also had certain incidents in the Eastern Cape which the details of, are not included in the bundles.

However, page 51 of the paginated bundle indicates that there is a notice which was served to one of the victims, in respect of the Eastern Cape incident. Therefore the applicant applies to incorporate these incidents of the Eastern Cape and apply amnesty in respect of this incident as well.

CHAIRPERSON: What are the details of that incident Mr Mhlaba?

MR MHLABA: The details of the incident, there was a shoot-out with police officers where a police officer was injured. The details of the police officer is not known by the applicant, but it would appear that it is the victim referred to in page 51 of the paginated bundles.

As well as possession of arms and explosives.

CHAIRPERSON: The application form, was that completed by the applicant himself?

MR MHLABA: That is correct, without assistance by anyone.

CHAIRPERSON: The particular matter that you are referring to in the application, is the Queenstown matter?

MR MHLABA: That is correct. If I may further mention that the applicant has been convicted in respect of such two incidents, and he is serving a prison term.

CHAIRPERSON: Were there two incidents in Queenstown, or was it - because you have referred us to a shoot-out with the police where somebody was injured, apparently the person who received the notice on page 51. If you say that there were two incidents, does it relate to that shoot-out or can you give us some more detail?

MR MHLABA: The one incident relates to the shoot-out, that was in November 1993, and the applicant was a fugitive all along, and he was arrested on the 24th of February 1994 and then found in possession with explosives and arms.

CHAIRPERSON: So he was arrested for the shoot-out incident and when he was arrested, at that stage, he was in possession of, unlawful possession of arms and ammunition and he was charged for that as well?

MR MHLABA: That is correct.

CHAIRPERSON: Then he was convicted for both the shoot-out and the possession, and he was sentenced?

MR MHLABA: That is correct.

CHAIRPERSON: Mr Mhlaba, what reference if any, is there in what is before us with regard to the Eastern Cape matter? I see that there are a few places where there is reference to Queenstown and there is a reference to Marina and I am not sure what that is and then there is a reference to Soweto.

I am looking more specifically at paragraph 9(c) on page 4 of the record which deals with the question of victims. There seems to be a whole sort of broad reference to things that had happened at Queenstown and (c)(ii) for example, talks about the Zola 3, Soweto and then it refers to Queenstown.

Then I think the word is Marina or Marino, I am not sure what is after the word, but at Queenstown. It appears as if there is some reference, and then in (c)(iv), there is again Queenstown, reference to Queenstown, Marina, Zola 3, Soweto and I assume on the second line, it is Protea police station, Queenstown police station.

Are you submitting that the applicant purports to deal with these further Eastern Cape matters that you are referring us to, when he refers to all these sort of places where incidents have happened? I see also on page 5, paragraph 12(a), he does refer to some court proceeding in the High Court, Johannesburg and in the Queenstown regional court.

And then 12(c) refers to terrorism, or the Terrorism Act, attempted murder and I assume that there is a reference to explosives and the possession of firearms. Is your submission that these references as perhaps not entirely as accurate as one would have hoped to have been, and clearly set out in the application, really attempts to encompass all of these incidents that you are talking about?

MR MHLABA: That is correct Mr Chairman. I have established from the applicant that he wanted to deal with all the incidents and the word which says Marina here, it purports to refer to Marienhoek squatter camp in Queenstown. It is an informal settlement there.

CHAIRPERSON: Just off hand, if you can help, is the notice on page 51, is that the only notice for somebody in the Eastern Cape?

MR MHLABA: That is correct Chairman. It would appear that the only victim was the one police officer, and my instructions are that, Mr Chairman.

CHAIRPERSON: Okay, oh, I see that on page 50, I am just paging through, trying to see, I see on page 50, there is a notice to a Sergeant Prins of the Internal Security Branch, I am not sure what that is, but in any case, to the police in Queenstown, so there seems to be notice to two persons, but you say that on your instruction, in that shoot-out, there was one person injured, although your client, the applicant, is not aware of the identity of that person?

MR MHLABA: That is correct Chairman. The applicant is aware that one person has been shot at by him, but he has fired several shots. He can only tell of one victim who is certain, was hit by the fire.

CHAIRPERSON: I don't know if you have formulated the amendment in more specific terms, or whether you had intended to do that as we went along, but if you have it formulated there in the sense of specifying the place and the date and the offences in question, if you have it available now, then perhaps you can give it to us. If not, we can deal with the amendment first and then perhaps come back to that, if it is necessary.

I don't know if you have it formulated there like in these specific terms?

MR MHLABA: The amendments are not per se formulated, but I have the facts, that can be done, it will not take very long to do that, and I submit, I concede that the form in particular, paragraph 9, was poorly completed and we can endeavour to try and formulate it in such a way that it will give some, can paint a particular picture to the Committee. It will not take me very long. A short adjournment will suffice for that purpose.

CHAIRPERSON: That is fine. Can you just give us, we know that the shoot-out was in November 1993, can you give us the rough date of the arrest and the possession of the explosives and the arms?

MR MHLABA: The applicant himself is not certain as to the correct date of the shoot-out at the squatter camp. He is however aware of the date of the arrest, being the 24th of February 1994.

CHAIRPERSON: Was the shoot-out at Marino or Marina, can you just give me the right name?

MR MHLABA: The right name is Marienhoek.

CHAIRPERSON: Marienhoek?

MR MHLABA: Marienhoek, as it appears at the foot of page 51 of the bundle, the notice given to ...

CHAIRPERSON: Okay. Thank you. Adv Steenkamp, have you got any submissions on the application to amend?

ADV STEENKAMP: I have no submissions Mr Chairperson, thank you.

CHAIRPERSON: Are you satisfied that the ostensible victims in the shoot-out, were given notice as per pages 50 and 51 of the record?

ADV STEENKAMP: Mr Chairman, I am satisfied. I can maybe just add, you will see there is actually no information contained in the bundle, referring to this incident.

I was informed that none of these records are still in existence. Though the incident happened in 1994, which I can't understand, but I understand the records aren't in existence. I think my learned colleague also informed me this morning, that he was also informed that none of these records are in existence any more. I have to apologise for that Mr Chairman, thank you Mr Chairman.

CHAIRPERSON: We have considered the application to amend the amnesty application to more explicitly include two incidents. The first one relating to a shoot-out between the applicant and members of the police at Marienhoek in Queenstown in the Eastern Cape, as well as the incident relating to the arrest, the subsequent arrest of the applicant, whom according to Mr Mhlaba, who represents him today, has been a fugitive, his subsequent arrest on the 24th of February 1994, when he was in unlawful possession of explosives and arms.

The application form has been completed by the applicant himself without any legal assistance and that much is apparent upon a reading of the application form.

It is not unusual in the experience of the Committee to have application forms completed under those circumstances, purporting to deal with a number of incidents, which should form the subject matter of the amnesty application, in a round about way and not as clearly and precisely and ...(indistinct) as obviously the case is where an applicant is assisted legally in completing the application form.

Mr Mhlaba has drawn our attention to the fact that in the bundle of documents before us, there is indication of notice having been given in terms of Section 19(4) of Act 34 of 1995, to two members of the South African Police Services in Queenstown, who it appears, are interested parties in respect of the shoot-out involving the applicant.

The application form itself, at various places, various sections of the form, purports to refer to not only an incident in Soweto but also to incidents in Queenstown. Adv Steenkamp, the Leader of Evidence of the Committee, who appears here today, has indicated to us that although this matter is not, or does not relate to a trial that was heard long ago, the records relating to the - particularly the Queenstown, Eastern Cape incidents, are not available. He has indicated to us that Mr Mhlaba has also searched for those records, and have also been unable to locate them, with the result that as is normally the case in these applications, the relevant court records are not before the Committee.

We are however satisfied that no prejudice would result from us granting the application to amend the amnesty application in the sense which I have referred to. We are satisfied that all of the interested parties have been given notice and we are satisfied that as perhaps incomplete as it might appear on the face of it, that the application form itself, does refer to the incidents which forms the subject matter of the amendment.

We accordingly grant the order to amend the amnesty application, in the sense of including the incident relating to the shoot-out in November 1993 as well as the incident relating to the arrest of the applicant on 24 February 1994.

Mr Mhlaba, do you want to proceed?

EXAMINATION BY MR MHLABA: Thank you Mr Chairman. I will start leading the applicant. Mr Khumalo, for record purposes, can you explain to the Commission where and when were you born?

MR KHUMALO: I was born in Soweto, Zola 3, in 1970, that was the 5th of January.

MR MHLABA: Can you briefly give this Committee the background of your education, where did you school and up to what standard?

MR KHUMALO: I have a lower standard of education. I just happened to be wise. I went as far as standard 4.

MR MHLABA: Are you a member of any political organisation or a supporter thereof, and if so, tell us the name of the organisation?

MR KHUMALO: Yes, I am a member of the present political party, the African National Congress and a member of Umkhonto weSizwe as well.

MR MHLABA: You are appearing before this Committee today, to apply for an amnesty in respect of certain offences and can you briefly explain to this Committee which are those offences?

MR KHUMALO: The offences for which I am applying amnesty for, include possession of explosives, firearm, ammunition and attempted murders, and murder.

MR MHLABA: Let us deal firstly with the offence of which was committed in Soweto, that was during July 1992, and according to the information at my disposal, it was the 31st of July 1992. Can you still remember?

MR KHUMALO: Yes, I remember.

MR MHLABA: Can you explain to the Committee what happened?

MR KHUMALO: Yes, I can explain, no problem.

MR MHLABA: Go ahead.

MR KHUMALO: It so happened that when we came back from exile in 1992, it was the 3rd of April. When we arrived at our homes, we dropped our things and we left to look for other comrades around the township because it has been a long time since we saw them.

When I came back in the evening, I discovered that the Security Branch had come to harass people at my house. That was the very first day on which I arrived here in the country. As time went on, on that very same day, the 31st, the police came, kept looking for me and we met around the township on the scene where this incident occurred.

When the police came, I tried to avoid them and as I was trying to avoid them, they charged on me. At a house that was found opposite a shop, the shop is called Kanyile's, I ran into the house, trying to show that I am avoiding them. I was in possession of armour explosives and it so happened that when I was in the house, the police came with their guns already drawn and when they drew their guns, I pulled my hand grenade and threw it at them. I don't know who got injured.

MR MHLABA: Were you arrested for this particular offence?

MR KHUMALO: Yes, that is correct. I was arrested in 1992, it was on the 3rd of October and charged for the incident.

MR MHLABA: Did you stand trial for this offence immediately after your arrest?

MR KHUMALO: I was attending the trial at Westgate, till such time that the matter was referred to the Supreme Court in Johannesburg.

MR MHLABA: Do you remember the period over which you stood trial at the Johannesburg Magistrate court?

MR KHUMALO: If I still remember very well, I think I was tried from October to the 20th of May 1993.

MR MHLABA: You served your entire sentence then, or to put it differently, did you serve a sentence for those offences, that particular offence and for what period?

MR KHUMALO: The sentence that I am currently serving, is a 30 year imprisonment, prison term carried out concurrently.

MR MHLABA: You will remember Mr Khumalo, that an application has been brought on your behalf to amend your application form, to include the incident of the Eastern Cape.

Can you explain how you, when did you go to the Eastern Cape and relate it to this incident of your arrest, because it would appear that you went to the Eastern Cape after you had committed the first incident, is that correct?

MR KHUMALO: It happened that in 1993, after I tried to escape from the Security Forces, I was harassed and I had to flee. The ANC sent me down to the Eastern Cape.

MR MHLABA: Are you telling us that this incident involving a shoot-out at Marienhoek squatter camp in Eastern Cape, occurred before the incident in Soweto? Just put us clear, which incident occurred first?

MR KHUMALO: Would you please repeat the question.

MR MHLABA: Would you explain to this Committee, the order in which these incidents took place? Was it the incident in Soweto or was it the incident in the Eastern Cape, the shoot-out at Marienhoek squatter camp which occurred first?

MR KHUMALO: It is Soweto.

MR MHLABA: And you were immediately arrested for the Soweto incident, is that correct?

MR KHUMALO: Yes, that is correct.

MR MHLABA: And when you went to the Eastern Cape, how did you find yourself there, did you escape from prison? Can you explain?

MR KHUMALO: After I was tortured by the police at Protea, I took ill. I was sent to Baragwanath hospital. Whilst there, I tried to escape.

MR MHLABA: Yes, can you continue and explain.

MR KHUMALO: After that, I was taken to the Eastern Cape at the Marienhoek squatter camp. I was working hand in hand with the local ANC Women's League including the Youth League, so we came to an agreement that seeing that I was being harassed by the Security around here in Johannesburg, therefore I should move to the Eastern Cape. I was then based at Queenstown.

MR SIBANYONI: Just one clarity Mr Mhlaba, Mr Khumalo, you said you tried to escape. Did you succeed in escaping from Baragwanath?

MR KHUMALO: Yes, I succeeded.

MR MHLABA: Mr Khumalo, can you tell us the details of how you escaped from Baragwanath hospital, where were you taken to until the point where you found yourself in the Eastern Cape and how the incident occurred?

MR KHUMALO: If I remember very well, I would say after I had escaped from hospital, I went to hide at my mother's place or should I say Mama's place, Nomzamo Madikizela-Mandela and she was harassed as well by the Security who were looking for me.

Then I was sent to the Eastern Cape, seeing that the Boers were also harassing her. Then I moved to Queenstown in Marienhoek.

MR MHLABA: When you arrived at Marienhoek, what did you do?

MR KHUMALO: I met the community of Marienhoek, and I was informed about stories as to what was happening at Marienhoek. I learned that Marienhoek too had a problem, were facing a similar harassment, this time by Gozo's Security at Ciskei and harassment from the hands of the South African Security Forces.

So that I found myself involving myself in the community structures of Marienhoek and I set up Self Defence Units, seeing that people could be able to protect themselves.

MR MHLABA: Yes please proceed, and explain what happened.

MR KHUMALO: Once the Self Defence Units were in place, the Queenstown Security was already aware of this, therefore the Queenstown Police Force came to Marienhoek to harass the people at Marienhoek, and they wanted these Self Defence Units.

Unfortunately they found me and I gave the Self Defence Units orders to beat up the police because we would not die alone and we would not be the only ones burying people. After a long time of our people being killed, nothing was happening.

The police who were involved, were not prosecuted and we put our lives in line or in the line to protect our people.

MR MHLABA: Mr Khumalo, I want to request you to explain all what happened until and including the incident involving the shoot-out with the police.

MR KHUMALO: It so happened that it was around November, the Queenstown Police came to Marienhoek. We had already decided that the police should not be allowed into Marienhoek, because they are creating problems.

People are arrested, people are detained, people are tortured, people are being killed, and the Queenstown Police forcefully went into Marienhoek. That is when I ordered that they be beaten up.

I was personally present when they came. If I still remember very well, I went to the police to ask them what they wanted, and asked if I could help them. They said they had come for the Self Defence Units, and one of them produced a Z88 9mm, pointing it at us. That is when I said shoot to kill. That is how these police were shot.

MR MHLABA: Were you involved yourself, in the shooting there, and if so, I want you to explain what your role was there?

MR KHUMALO: Yes, I was practically involved as Commander of the Self Defence Units and also as a disciplinary cadre of Umkhonto we Sizwe. I was trying to ensure that there is safety for the people. I was personally present, I also fired shots.

MR MHLABA: After this shooting incident, can you explain, explain further until the end of everything you know about this application Mr Khumalo.

MR KHUMALO: After the police were shot, the Queenstown Security Forces reinforced, gained their entry into Marienhoek. People were raided, or houses were raided, people were detained.

They wanted to know where the bloody terrorist was and they indicated that the terrorist would have to be apprehended. People were locked up. The very same year, 1993, I moved to Ezibeleni, which is Queensdale in the Transkei.

In the very same year, 1993, as we were continuing with training, what happened here was that on the 24th of February 1994, after a call had been made that all the Umkhonto we Sizwe guerilla warfare had to report at St Johns. On our way, I was arrested at the border gate that divides Queenstown, or Transkei and Ciskei or Queenstown. That is how I got arrested.

MR MHLABA: What happened to you after you were arrested?

MR KHUMALO: I was sent to Queenstown police station, from where I was sent to Port Elizabeth at the Louis le Grange police station and I was also sent thereafter, to East London to date, where I am. Police had many questions, they interviewed me, they wanted to know what was happening. I did not hide a thing from them.

I explained to them why we were beating them up, I explained to them why the community had an attitude towards the Security, because the Security was a problem to the people. The Security was killing innocent people, therefore that is why I am here under the Correctional Service today.

MR MHLABA: Were you, Mr Khumalo, tried in a court in Queenstown?

MR KHUMALO: Yes, that is correct.

MR MHLABA: Can you explain to the Committee, the outcome of such trial and what charges you were facing?

MR KHUMALO: I was charged for the possession of explosives, firearm and ammunition and attempted murders and then I was sentenced to eight years imprisonment.

MR MHLABA: For record purposes Mr Chairman, I would like to indicate that I have a print-out here which indicates that the applicant appeared and there were two case numbers allocated in respect of the offences.

The first case number is QSH24594 and the charge was attempted murder and the subsequent case number is QSH24694, and the offences under that case number is possession of firearm, possession of ammunition, explosives. That is all Mr Chairman.

MR SIBANYONI: Can I just clarify one thing, Mr Khumalo, were you not charged with escaping from lawful custody when you were in Queenstown?

MR KHUMALO: No, I was not.

MR SIBANYONI: Thank you.

MR MHLABA: Mr Khumalo, can you explain to the Committee whether after you stood, was it - rather, let me put it this way, you initially stood trial in Queenstown, then subsequently transferred to Johannesburg, or was it the other way around?

MR KHUMALO: I stayed in the Eastern Cape, that is during the year 1995, 1996 and I returned to Johannesburg during 1996.

MR MHLABA: You are applying to the Committee Mr Khumalo, to grant you amnesty in respect of these offences. Do you have anything to say to the Committee in motivation of your application?

MR KHUMALO: Yes, that is correct, there is something I would like to say. I would like to say to the Committee that I would like the Committee to grant me amnesty with regard to all the offences which have been dealt with and in the context in which they happened.

It was during the apartheid system, when we were being harassed, we were committed to the struggle and we wanted to free the nation. We were killed, harassed, tortured. We also did what we did, or what we had to do, we tried to overthrow the government, using different techniques and tactics.

I would request the Amnesty Committee, to grant me amnesty because of the reasons that I have already stated, and the fact that we were freedom fighters. With regard to Article 11, that states that every person has a right to life, all of us have an inherent right to life.

Even though we did kill certain people, some innocent victims were effected, that was not our intention to kill or to hurt others. It happened during the course of the struggle that we should find ourselves in the situation.

I request the whole South Africa to be peaceful and to accept that we are now moving towards peace.

MR MHLABA: In conclusion Mr Khumalo, are you willing to respond to questions which may be put to you by the Committee or any other person who feels, has an interest in this matter?

MR KHUMALO: I have absolutely no problem, I will answer all questions posed to me.

ADV GCABASHE: Mr Mhlaba, if I could just check, before you finish, if you look at page 12 of the bundle, the summary of substantial facts, we have got counts 1 - 4, then counts 5 - 12, then counts 13 - 14 that are referred to here. Have you covered all of them?

MR MHLABA: Thank you Chair. I will want to take this opportunity to take the applicant back to certain aspects in this regard.

Mr Khumalo, can you explain to the Committee, do you know anything about the incident in respect of which Joseph Mazibuko was killed on the 2nd of October 1992?

MR KHUMALO: Yes, that is correct.

MR MHLABA: Can you explain in full what happened?

MR KHUMALO: As I have already explained, that when we got to South Africa, we discovered that people were constantly being harassed and killed.

We decided to open up some Self Defence Unit, the community itself was pressurising us to come up with a solution, which we decided was the establishment of Self Defence Units.

We also had certain duties that were assigned to us. It so happened that on this particular day when we were on duty, the Protea police station, or the police stationed to the Protea police station, had come to attack us. We had an operation clean up that we had instituted locally.

It so happened that on the 2nd of October during the year 1992, I assigned some guys from the Self Defence Unit, as the Commander of the Self Defence Unit, to go patrol around the residential area.

After having issued this instruction to go and patrol, there was a specific request that the community should switch off the streetlights, because they were going to disturb us in the duty, all the work that we had assigned ourselves to do.

The community permitted us to switch off the lights. One of the Self Defence Unit members came to me, to report that I was being sought at a certain house and I had to go there personally to that particular house. I went into that house because I knew the people who resided there and as I got inside the house, I requested to see the owner of the house, which was a woman. I came across the woman, I spoke to her, I greeted her and further pointed out that we request as the community, for her to switch off the front light.

She asked me the reason why and I explained to her the reason. I even explained and identified myself, and explained that I was from the Self Defence Unit and that I was carrying a certain duty. I was attacked by everybody in that house.

There is a person with whom we didn't see eye to eye and his name is Vugani. I was accosted, manhandled. I was kept hostage and I had a hand grenade in my possession. They tried to take away the hand grenade.

Whilst, within the same breath, I was trying to explain that I was not attacking them, or fighting them, but I had come to explain to them as to why they had to switch off the front light. They were quite adamant, they didn't want to listen to me, they just kept on attacking me and the comrades with whom I operated, were outside the house.

They heard some screams and struggle from the house. They wanted to take the hand grenade which was in my hand, somebody stabbed me with a fork on the right hand, so that I could release the hand grenade.

As they were stabbing me with the fork, the safety pin of the hand grenade was mistakenly released. I told them that the safety pin had been released, and they had to give me a chance to put it back so that it could not explode. I kept on trying to explain to them, that they had called me to come and explain and what I had gone there for, was to explain as to why they had to switch off the lights.

During the struggle, the comrades kicked the door open, that is how I got a chance to escape. My right hand was bleeding. It happened that I was injured and I got angry at that time, especially because I had not gone there to fight or attack. I told myself that I am not going to compromise, let me just give them the present that they wanted because they were obstacles standing in our way, and we did not want people who were going to disturb us, especially with regard to our duty to protect the community.

So they had to accept the present that I was giving to them. I would like to say how much I regret the incident. That is Joseph Mazibuko, because that was not my intention to kill Joseph Mazibuko. I am truly sorry.

MR MHLABA: And is this the same incident where D.P. Mazibuko was injured?

MR KHUMALO: That is correct.

MR MHLABA: Do you know anything about an incident involving Colin Skiro Zuma, which occurred on the 3rd of October 1992?

MR KHUMALO: Yes, I know everything that happened in Zola 3. I have extensive knowledge with regard to the death of Skiro. Skiro was a thug who had absolutely no direction.

MR MHLABA: Did you do anything to Colin Skiro Zuma on the 3rd of October, and if so, I want you to explain fully the role you had played there?

MR KHUMALO: Yes, there is a role that I played. On the 2nd of October, it was on the afternoon of that day, I stay just at close proximity to the school, a lower primary school and there were security guards at the school, or there is a watchman who kept watch over the school, Mr Tshabalala.

He came to me with a report that the school had been broken into and certain articles stolen. As people who protected the community, he wanted to enlist my help with regard to the recovery of the articles that were stolen at that particular school.

Mshengo told me that Skiro was there at the school to try and disrupt the school. I promised Mshengo that we were going to look for Skiro, hunt him down and bring him to Mshengo so that he could answer to the allegations that were levelled against him by Mr Tshabalala.

I came across Skiro and told him that we were actually looking for him, and asked him as to why they broke into the lower primary and took certain articles and sold them at a later stage.

Skiro was very arrogant, very aggressive when I approached him. I did not touch him, I did not do anything to him, but this security approached, and I apprehended Skiro, taking him to Mshengo.

At that time the police from the Protea police station approached, they arrested me.

MR MHLABA: Let me take the incident where you have thrown the hand grenade to the police officers who were pointing firearms at you. You said that was at Kanyile's home, is that correct?

MR KHUMALO: Yes, according to my knowledge, that is correct.

MR MHLABA: The information I have to my disposal, is that Mkadyani Samson Dube, Irish Kanyile and Mhanha Godfrey Ncobo were injured at that incident. Are you aware of that?

MR KHUMALO: Yes, I heard that after the incident, that there were people who got injured.

MR MHLABA: Were you aware of the details of such people?

MR KHUMALO: No, I did not know them.

MR MHLABA: Thank you Chairperson, that concludes the evidence in chief.


CHAIRPERSON: Thank you Mr Mhlaba. Adv Steenkamp, any questions?

CROSS-EXAMINATION BY ADV STEENKAMP: Mr Chairman, just a few questions. Sir, maybe we can start with the last section of your evidence.

The assault of Colin Zuma, can you describe to the Committee, what was your political motive for assaulting Mr Zuma?

MR KHUMALO: I did not assault Zuma. Zuma was held or arrested, we were effecting a civilian arrest, so that he could be taken to the security guard at the primary school. My political motive is that I was approached as a member of the local community and a member of the Self Defence Unit, to try and protect the community, because these people were a problem in the community.

The elderly people were scared of these thugs. I felt that it was my responsibility to apprehend Skiro and bring him to the security guard, so that he could answer the allegations because we believed that education should go on.

ADV STEENKAMP: So, can you explain to me why were you then convicted for the assault on Mr Colin Zuma?

MR KHUMALO: I have got absolutely no knowledge, because I explained even in court, that I had nothing to do with the assault and I pleaded not guilty. I do not know how I got convicted.

ADV STEENKAMP: I take it that you are also denying that you threatened Mr Colin Zuma with a hand grenade?

MR KHUMALO: I was not in possession of any firearm or ammunition when I apprehended Mr Zuma. Even when I was arrested by the police, I had nothing in my possession.

ADV STEENKAMP: Sir, the incident where the hand grenade exploded, were you also in possession of a firearm?

MR KHUMALO: Could you repeat your question?

ADV STEENKAMP: I see in your amnesty application, no mention of possession of a firearm. My question to you is, because according to the court records, you were also in possession of a firearm on the day of the incident, can you explain that to me.

ADV GCABASHE: Sorry Adv Steenkamp, just ...

MR KHUMALO: There was a firearm that was found, whilst I was in detention at the Protea police station. That is why I applied for a possession of a firearm. There is a firearm that was found.

Actually not a firearm, it was an explosive, a hand grenade. That was found in Pretoria.

ADV GCABASHE: Which incident is that that you are referring to?

ADV STEENKAMP: I am sorry Mr Chairman, I am referring to the incident of the explosion of the hand grenade inside the house. My question to the applicant is basically this, was he in possession of a firearm?

MR KHUMALO: Yes, I was in possession of a firearm at that time.

ADV STEENKAMP: This is now at the time of the incident in the house, am I right?

MR KHUMALO: Could you repeat your question please.

ADV STEENKAMP: Okay. Am I right in understanding you correctly, at the day of the incident of the explosion of the hand grenade inside the house, you were also in possession of a firearm?

MR KHUMALO: Yes, I was.

ADV STEENKAMP: Can you explain to me why you specifically denied to the Supreme Court, that you were in possession of a firearm on the day of the incident, that specific day, why did you lie to the Supreme Court then?

MR KHUMALO: I had to lie in court, because I did not appreciate the system that was employed by the Supreme Court, and I had no confidence in the judicial system, because it was unfair on our part. That is why I had absolutely no confidence and I did not want to disclose the truth, I did not want to get convicted.

ADV STEENKAMP: I missed that, can you maybe just explain to me, you referred to Mrs Mandela. Can you explain to me what exactly was her role in this incident?

MR KHUMALO: Mrs Mandela, I don't understand, can you repeat your question.

ADV STEENKAMP: Sir, you referred to Mrs Mandela in your evidence in chief. My question to you is, what exactly - did she give you any assistance, what was her role in this whole time while you were, after the incident? Apparently she gave you some assistance if I am not mistaken. My question to you is, can you please explain to me exactly what was her role?

ADV GCABASHE: Sorry Mr Khumalo, Mr Steenkamp, if my memory serves me well, the reference was not to Mrs Mandela, the reference was to Mama's place, so maybe you should frame your question in that sense, you know because of the evidence we have heard before in the TRC. There is a difference between the person and the place, so maybe you need to rephrase.

ADV STEENKAMP: Mr Chairman, if I am not mistaken, the applicant has referred to Mrs Mandela, but I will rephrase the question.

Can you explain to me who was Mama then?

MR KHUMALO: I will explain this further. During the year 1993, after I had fled, I went to Mama's place, that is Mrs Mandela. I sought a place of refuge. That is when I was escaping from the Security Police. I went to Mama's place. That is why I involved Mrs Mandela.

ADV STEENKAMP: Was she aware that you had escaped from the police and the police were searching for you?

MR KHUMALO: Yes, when the police was searching for me, she is a member of the African National Congress ...

MR SIBANYONI: Sorry to interrupt you Mr Khumalo, can you please continue speaking in Zulu, the Interpreters are going to interpret what you are saying.

MR KHUMALO: Thank you. It happened that Mama is a member of the African National Congress and she knew the conditions under which we lived, especially as members of Umkhonto we Sizwe. As well as the reasons for being harassed and tortured by the Security Police, any member or every member of the ANC had a right to hide members of the ANC who were fleeing from the Security Police, that is what I was trying to explain.

ADV STEENKAMP: For how long did you stay there and did she also assist you in going to the Eastern Cape?

MR KHUMALO: I did not stay long. I think I stayed ...

ADV STEENKAMP: Just a minute.

CHAIRPERSON: Is he applying for escaping from custody?

ADV STEENKAMP: No Mr Chairman, but I think he is not applying for that, but surely he is implicating somebody now. I think the question, my only question why I am asking this question, is the whole relation to information relating to 19(4), if they are not, this person must be referred to as an implicated person or not and whether or not, she must be notified. That is my only difficulty Mr Chairman, but I don't have any further questions on that issue. Thank you.

CHAIRPERSON: That is my difficulty as well. So it is not really an issue that is before us?

ADV STEENKAMP: No, it is not an issue of the applicant, it is an issue of referring to the specific Section Mr Chairman.


ADV STEENKAMP: My last question to you sir, who supplied you with the hand grenades?

MR KHUMALO: I am a member of Umkhonto we Sizwe and as a member, there were certain operations within South Africa, we had some DLB's in South Africa which were issued during the armed struggle and these were handled by us.

As we were handling these, I was the one who was issuing them out so that they could protect the community.

ADV STEENKAMP: Did you get these, did you personally, were you personally in possession of a cache or where did you exactly get these hand grenades?

MR KHUMALO: With regard to underground structures, I cannot say it was a cache of arms, but I used to get arms from different people at different times. I would not say it was a whole cache at the same time.

ADV STEENKAMP: Thank you for your indulgence Mr Chairman, thank you to all the members.


MR SIBANYONI: Mr Khumalo, if I understood you very well, you are saying you didn't assault Colin Zuma, is that so?

MR KHUMALO: Yes, that is correct.

MR SIBANYONI: However, the Court convicted you for that, found you guilty for that?

MR KHUMALO: Yes, I was convicted for something that I didn't do. Even God knows that I didn't commit that offence.

MR SIBANYONI: I see. Now, seeing that the Court has made that effect, that it is a conviction against you, are you applying for amnesty, would you like the Committee to give you amnesty for that?

MR KHUMALO: Yes, that is correct.

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

ADV GCABASHE: No questions, thank you Chair.

CHAIRPERSON: Thank you. Mr Mhlaba, re-examination?

MR MHLABA: None Chair.


MR MHLABA: The applicant does not have any witness to call and that concludes his evidence.

CHAIRPERSON: Thank you very much. Mr Steenkamp, are there any further witnesses?

ADV STEENKAMP: I am sorry Mr Chairman, I do not have any further witnesses to lead as well, thank you Mr Chairman.

CHAIRPERSON: We are going to adjourn for tea and when we reconvene, I would like you to proceed to address us on the application. If you wish to formulate those offences which relate to the amendment, I want you to just take the opportunity to do that as well Mr Mhlaba. Thank you.

We will adjourn to give you a bit of time just to prepare all of that. We will adjourn for tea until eleven o'clock.

ADV STEENKAMP: Mr Chairman, thank you, I see Mr Manyamala's Attorneys are present now.
























DATE: 13-10-1998




DAY: 2

--------------------------------------------------------------------------ON RESUMPTION

CHAIRPERSON: We are reverting to the application of Mr Manyamala, AM3150/96. Mr Shayi, you had indicated to us when we adjourned yesterday, that there was an application that you would want to address to us. Would you please proceed to deal with that first, and then we will come to the argument after that?

MR SHAYI: Mr Chairman, as I indicated yesterday that on page 13 of the bundle, and page 15 of the bundle, mention is made on page 13 of three AK47 firearms and nine shotguns, and on page 15, of two AK47's and several pistols and several revolvers. It is my submission that when the application was made by the applicant, he was not advised by any legal representative, it was done by the applicant himself.

When he actually alluded to the affidavit, he made mention of how he came to be in possession of the three AK47's that are mentioned on page 13 as well as the nine shotguns and the other weapons that are mentioned on page 15 of the bundle, my submission is there is no any other ...(indistinct) evidence or any other evidence, to actually support his application for amnesty, as far as these firearms are concerned.

In other words, the affidavit that he actually made in support of his application, deals adequately with the AK47's, the nine shotguns, and the pistols and the other firearms. My submission is there won't be any prejudice that is going to be suffered by any other party should an amendment be made by the applicant, and such amendment be allowed by the Committee.

ADV GCABASHE: Mr Shayi, could I just ask you, that affidavit, do you have a date? Mine doesn't have a date reflected on it?

MR SHAYI: If my memory serves me well, I think the affidavit was made Tuesday last week, that will be, I think that will be - may I just bring it to the attention of the Committee that I actually received the bundle on Friday last week, and that is the day on which I actually started working on the application itself.

My understanding of the matter was when I first received notice that I may actually come to represent mr Manyamala in the application, my understanding was, because at that stage I had a copy of the affidavit, my understanding was, he in the application, that is in the form, dealt with the firearms that are mentioned on pages 13 and 15.

So, when I received the bundle on Friday, that is when I actually noted that the firearms on pages 13 and 15 are not mentioned in the form. But I came to the conclusion, or it is my submission that as far as the application is concerned, if an amendment can be allowed, the facts pertaining to the firearms, are adequately mentioned in the affidavit.

He actually alluded when evidence was adduced by Mr Manyamala, he actually told the Committee as to how he came to be in possession of the firearms, mentioned on page 13 as well as the firearms mentioned on page 15. My submission is as far as Section 74 of the Act is concerned, there wouldn't have been any need to actually give notice to any other third parties, as the Committee pleases Mr Chairman.

CHAIRPERSON: Yes, there is no apparent interested party victim, in respect of the possession of the arms and ammunition. But in any case, the application form itself does foreshadow SDU activities on the part of the applicant.

And of course, the possession of these arms related directly to the SDU activity, so it is not as if it is something that was not covered at all in the original application form. Although it was obliquely covered there, it does refer to the fact that the applicant was engaged in some or other SDU activity.

Just, can you just confirm the affidavit was drawn with the assistance of legal representation?

MR SHAYI: As Mr Chairman pleases, I understand from my learned colleague, that is Mr Gila, that when the affidavit was drafted, he was present, and it was after it was drafted that they actually came to me. I understand that it was somewhere on Tuesday last week, or Monday last week, but it was during the course of last week.

CHAIRPERSON: All right, but at that stage the applicant was assisted by a lawyer?

MR SHAYI: That is correct Mr Chair.

CHAIRPERSON: Thank you. Adv Steenkamp, do you have any submissions on the application to amend?

ADV STEENKAMP: Mr Chairman, I don't have any objection whatsoever. May I just ask something, I am not clear what happened to the weapons, I understand they were used for SDU activities, but I would like if possible, just to ask what happened to them, because if they were sold, there is a question of financial gain. It seems to be a lot of weapons.

It is nowhere raised exactly what happened to them, except that they were stored somewhere, or they were cached apparently. I think that is the only thing I am asking, with respect Mr Chairman, but I don't have anything further to say.

MR SHAYI: In that respect Mr Chairman, then I will allow the Committee to find out from the applicant himself, but as far as the weapons mentioned on page 13 are concerned, if my memory serves me well, this was actually alluded to by the applicant, that is when he said that the said weapons were lost during the course of the activities.

As far as the weapons on page 15 are concerned, those are the weapons that were taken from the mentioned comrade Gadaffi and those were the subject of the criminal activity that was involved here, as the Committee pleases.

CHAIRPERSON: The applicant in this matter has completed his testimony, and in the course of questioning by Adv Steenkamp, the Leader of Evidence of the Committee, the issue concerning a number of firearms which are referred to in the affidavit, submitted in support of the application, arose and more particularly the question whether or not the amnesty application before us, includes the possession of those arms.

Mr Shayi, who appears for the applicant has applied for the amendment of the amnesty application to include the possession of the particular arms which are referred to on pages 13 and 15 of the record before us, amongst other things a number of AK47 assault rifles, shotguns, pistols and revolvers.

Mr Shayi makes a submission that no prejudice can be suffered by anyone in the event of the application being granted. There are no apparent interested parties or victims in respect of this particular aspect of the matter.

Adv Steenkamp has indicated that he does not oppose the application, and it is quite clear that the applicant's possession of these arms have been fully canvassed in the course of the testimony that was given in the matter. We are therefore satisfied in the circumstances, that the applicant has made out a proper case for the amendment of the application, to include the possession of the arms referred to on pages 13 and 15 of the record.

We can just add that it has been drawn to our attention that the applicant was not legally assisted when he completed the application form and therefore the form obviously is not as detailed as one would have expected it to be in the event of the applicant having been assisted by legal representation.

In any event, there is reference in the application form itself to the fact that the applicant has been engaged in activities of a Self Defence Unit, and it appears that the possession of these arms relate to those activities.

So, in our view the details relating to the possession, has been foreshadowed in the application form itself and that a sufficient basis has been laid in the original application for the particulars which are contained in the affidavit.

Accordingly the application is granted and the amnesty application is amended to include possession, unlawful possession of the arms and ammunition in question.

MR SHAYI: As the Chair pleases. Mr Chairman, at this stage, I will ask the Committee to allow Mr manyamala to address the Committee on forgiveness, just a short address.

CHAIRPERSON: Very well. There is no need to do that under oath, and therefore we will allow Mr Manyamala to speak from where he is.

MR SHAYI: Thank you Mr Chairman.

CHAIRPERSON: Mr Manyamala, your legal representative has indicated that you wish to address some further remarks in regard to the application. Would you please proceed to do so?

MR MANYAMALA: First of all I would like the people to fix the headphones for me, my reception is very poor here ... (tape ends) ... by the government, the apartheid government. I don't have anything else to say, thank you.

CHAIRPERSON: Thank you Mr Manyamala, for those sentiments. You have referred to your testimony yesterday and you expressed an opinion on the manner in which you had testified, but can I just put on record on behalf of this panel and my colleagues here, whom I know very well, you know, your matter will be considered as any other matter, professionally and objectively.

We are not sitting in an ivory tower, we understand the emotions that people have and we understand that often these proceedings are not easy things to handle, thank you.

Mr Shayi, do you wish to address us on the merits of this matter?

MR SHAYI IN ARGUMENT: Thank you Mr Chairman. Mr Chairman, this is an application by Mr Manyamala for an incident that took place on the 3rd of February 1993 in which Mr Stephanus Froneman was murdered or killed and Ms Ruth Jennifer Barker, was injured during the process and he was charged with attempted murder and subsequently convicted and sentenced.

Under the circumstances when he was actually brought before the Court of law, he was charged with robbery with aggravating circumstances and illegal possession of a firearm, and illegal possession of ammunition as well.

He is serving respectively a death sentence, 18 months, three and six months.

CHAIRPERSON: Can you just repeat that? Is it a death sentence, that is subject to reconsideration by the panel?

MR SHAYI: That is correct. That is correct yes.

CHAIRPERSON: And then you say, what are the rest of the sentences?

MR SHAYI: The rest of the sentences are 12 years for the attempted murder of Ms Ruth Jennifer Barker, 18 months for the robbery with aggravating circumstances, excuse me, it is 12 years, 18 years, three years for illegal possession of a firearm, and six months for illegal possession of ammunition.

He was sentenced on the 2nd of June 1995. My submission is one now has to look at the provision of Section 20 of the Promotion of National Unity and Reconciliation Act, 34 of 1995 and the Committee has to satisfy itself as to whether if one looks at this Section, he qualifies to be given amnesty.

The first thing that one has to look at is whether the application complies with the provisions or requirements of the Act, and my submission is inter alia that according to the bundle, the application itself was brought on the 1st of November 1996, and the cut off date was supposed to be the 10th of May and my submission is under that leg, he does actually comply with that requirement.

Then, now one has to look at the provisions of subsection (2)(a) of the Section 20, which in short deals with whether he was a member of any political organisation or a supporter thereof and my submission is, according to the evidence or the submission that was made by Mr Manyamala, he says that he was a member of the African National Congress and a member of the Self Defence Unit.

If one looks to the (b) part of Section 20, that is 20(1)(b) whether the act, omission or offence related to any political objective, and I will come to these when I deal specifically with the facts or the incident itself, and dealing with the evidence that was given by Mr Manyamala to this Committee, then whether the applicant has made a full disclosure of all relevant facts that were involved in the commission of the crime.

Now, in dealing with the (c) part of Section 20(1)(c), of Section 21, I will actually look at what my learned colleague, Adv Steenkamp, alluded to when he said that in other words he lied to the Court, during the time of the trial.

Then I will also deal with the provisions of subsection (3), more specifically the (a), (e) and the (f) parts of the Section.

Now in dealing with whether the act committed was actually related to any political objective, the issue here is overshadowed by the fact that in it we have a person who is now facing, or who has been sentenced for inter alia robbery with aggravating circumstances.

One should never try to look at the court document without looking at the plea that was given by Mr Manyamala to the Court. My submission is in giving a ...(indistinct) denial to the Court in question, any possibility of him stating to the Court as to how he came to commit the offence, was actually excluded, because in giving explanation as to the killing, he would by so saying, have been saying that he actually committed the crime.

If one looks at what he says led him to pleading not guilty, because he says that the Attorney or Advocate who was representing him, told him that he stood to gain by pleading not guilty, then pleading guilty, because if he pleaded guilty, then he would have been given a direct life imprisonment, or a death sentence.

He didn't want to follow that route. That should be looked at in the light of the circumstances of Mr Manyamala himself, namely that he at that stage, even though he didn't actually mention that, he thought that by pleading guilty and being given a death sentence or life sentence, would have aggravated his position and as such he deemed it fit to lie to the Court.

But he actually took the route to the truth, hoping for reconciliation with the victims of the said crime. If one looks at the crime itself that was committed by Mr Manyamala, one will say that it is a purely, if one looks at the court record, that it was a purely criminal activity, but if one looks at the provisions of subsection (3)(a), (e) and (f), more specifically whether he stood anything to gain by so robbing the people, then one is left with no choice, but to look at Mr Manyamala's submission that when they so robbed the motor vehicle or they so took the motor vehicle from this person, they never had an intention to use the said motor vehicle for their personal gain, but they merely wanted to use it for transporting the said firearms to Soweto.

If one looks at this in the light of what was actually led in the court, more especially if one looks at pages 36 and 37 of the bundle, and in summarising the facts, mention is made of - I am going to quote from the second line of page 37, that is 584 of the judgement. He said that accused 2 brought the vehicle there. He says that he knows accused 2 very well. And later mention is made of accused 3. On line number 8, late that evening accused 3 arrived on the premises, with the police.

No mention whatsoever if one goes on with the judgement itself, is made of accused 1, who is now the applicant today, of ever having been in possession of the motor vehicle from the time that the said vehicle was taken away from the victims. My submission is looked at in the light of what he actually alluded to, that he gave orders to the two people to dispose of the motor vehicle after it was taken away from the victims, then one could actually come to the conclusion that what he is saying, is the truth.

Because from there, if one looks at the summary of the judgement by the learned Judge, no mention is made whatsoever of any connection of the motor vehicle to the applicant, after it was taken away from the victims. Meaning if there is anything that was actually gained by whoever took part in this activity, it definitely couldn't have been the applicant. At most, it was actually the two co-accused, who are not before this Committee.

My submission is, as far as the provisions of subsection (3)(a) are concerned, which is the motive which can be said to be directly linked to whether he had some personal gain by so committing the offence, are actually satisfied.

That should be looked at in the light of what he actually alluded to this Committee. If one looks at the provision of subsection (3)(a), the motive, he says the motive at that stage, was to take the motor vehicle and to transport the firearms.

He says when so killing, in the shooting that occurred between him and the driver of the motor vehicle according to his version, when that shooting actually occurred, that was not his intention, to actually shoot the person who was in the motor vehicle, that was when he first approached the motor vehicle.

That was something that came to him, immediately after the occupant of that motor vehicle, that is the driver, started shooting at him, and then he returned fire. Now, that should be looked at in the light of the injuries that were sustained by the passenger of the motor vehicle, of the Toyota Corolla, that is Ms Barker.

For that, one has to look at page 35 of the bundle, that is the summary of the judgement, that is the penultimate paragraph. She herself, sustained three gunshot wounds. Two in her right leg, and one behind the right upper hip or side.

One is left with the question, if the intention of Mr Manyamala was to kill the occupants of the motor vehicle, why would he go for the legs of the female occupant of the motor vehicle? My submission is that his evidence that she was actually not intended target in the shooting, that she was actually hit by the bullets that were intended for the male occupant, is the truth.

Why would he shoot her on the leg and after shooting her, according to the version that is now before the Committee, no attempt whatsoever was made by Mr Manyamala to finish off the female occupant of the motor vehicle, who could have subsequently secured a conviction for Mr Manyamala.

Then one is left with no other alternative in the absence of any explanation to the contrary, that Mr Manyamala never had any intention other than taking the motor vehicle away from them, of killing the occupants of the motor vehicle.

My submission is if he lied to the Court as Adv Steenkamp was harping at yesterday, why would he lie to the Court, why wouldn't he disclose the whole truth to the Court? My submission is, and it is now common cause, people who were involved in political activities at that stage, never had any trust in the judicial system.

Even after the elections themselves, and if the Committee could actually look at the applications that are actually brought by the applicant or applicants who approach the Committee, there are many of them who were convicted and none of them, pleaded guilty in the trial court.

My submission is he is pleading not guilty in court, thereby not disclosing the truth to the trial Court, can in a way be seen to be linked to his not telling the truth and he is here to disclose the truth of what happened during that fateful day.

One may pose the question, why would he actually decide on killing in order to get hold of the vehicle? One has to guard against taking an armchair approach to the situation that Mr Manyamala was actually faced with.

Ex post facto one can say that was not a good decision to make, but during the course of the event, in the heat of the moment, what was it that he thought about. He said to the Committee when Adv Gcabashe, one of the Commissioners, was actually posing a question to him ,why the urgency, he says the urgency was and that is what was in his mind, I have to protect my people.

That is what the urgency is. That should be looked at in the light of the proportionality of the offence that is still under Section 20, the proportionality of the offence that was committed in relation to the objective that was sought to be achieved.

Now, if one looks at the proportionality, my submission is a person's life is a person's life, that is the ultimate right, right to life, but now in killing that one person to protect the lives of more than 10 people in the location, could one not come with that kind of proportionality?

One should look at what was happening when the shooting took place. The occupant of the car was shooting, he was also shooting. In that respect, one can say he had to shoot to secure the motor vehicle. In the same tone, he had to shoot to protect himself from the occupant of the motor vehicle, although that was not said and that was not raised in the trial court.

My submission is although it may be said that this looks far removed incident from furthering a political objective, if one looks at the events in one chain, there is no doubt that in transporting the firearms to the location, that motor vehicle was needed. Even though he says that he drove in another car to the scene, he gave an explanation why he had to go for that specific car, but not the car in which they were travelling.

My submission is that it satisfies all the requirements for amnesty. If there is any question in particular, I am available to assist the Committee.

CHAIRPERSON: Thank you. Adv Steenkamp, any submissions?

ADV STEENKAMP: Mr Chairman, I have no further submissions, thank you.

CHAIRPERSON: Gentlemen, thank you very much. We will consider the matter and notify the parties of the decision once it is ready to be delivered. Thank you for your assistance.

MR SHAYI: Thank you Mr Chairman.

CHAIRPERSON: You are excused.


CHAIRPERSON: Can we revert to the matter of Khumalo?

ADV STEENKAMP: As you wish Mr Chairman, I do not know if you want to take a minute before I call the Attorney, or we can just call him and start immediately, he is available, Mr Mhlaba. There he is at the back, he is coming sir.

CHAIRPERSON: We are proceeding with the matter of Bongani Christopher Khumalo which stood down in order to enable us to deal with a matter which was outstanding since yesterday.

Adv Steenkamp, I believe that there is some further testimony that did become available in the meantime, would you put that on record?

ADV STEENKAMP: Thank you Mr Chairman. Mr Chairman, may I first apologise on behalf of the victims for introducing a witness at this stage, as well as to my learned colleague.

I informed him briefly about the position. The victims, I am appearing now on behalf of a number of victims. I would beg leave to call one witness Mr Chairman, that is Mr Solomon Moloi.

Mr Moloi being the person that is mentioned in charge number 6, of indictment which appears on page 16 and 17 of the bundle Mr Chairperson. Page 16 and 17, his name is referred to there, he is Mr Solomon Moloi.

The applicant was convicted for a charge of attempted murder on Mr Moloi. May I also put on record Mr Chairman, that the view of the following victims are that they are opposing the application of the applicant, because they are of the view that the applicant didn't make a full disclosure.

And their names appear on page 1 of the bundle Mr Chairman. If I may with respect, refer you to page 1. The first person there being Sergeant Makokani Samson Ndobe, he is present, he is opposing the application. It is the first person on the list there Mr Chairperson.

The second person being Colin Zuma, also opposing the application.

They can run down Mr Chairperson, the next person is Mr Godfrey Ngubu, Mhlandla Godfrey Ngubu. He is beneath Elizabeth Titi Mazibuko, also opposing the application.

Then Mrs Ngubu herself is also opposing the application on the same grounds, Mr Chairperson. Then Mrs Selina Makwe Moloi is also opposing the application, on the same ground.

And then Mr Chairperson, Mr Solomon Moloi is present, he is a Zulu speaker. I would with your indulgence, lead his evidence.

CHAIRPERSON: Thank you Adv Steenkamp. Mr Sibanyoni, will you administer the oath to Mr Moloi.

MR MHLABA: May I interrupt Mr Chairman, before the evidence is led, may I indicate in respect, may I refer the Committee to page 20 of the court record.

The information I have at my disposal is that the applicant here, was acquitted in respect of the attempted murder of Solomon Moloi as well as the attempted murder of Selina Moloi. It appears on line 1 and 2 of page 20 of the judgement.

ADV STEENKAMP: Sorry Mr Chairman, my learned colleague is absolutely correct, it is page number 47 of the bundle, the marked, highlighted page 47 on the top there. That is charge 6, that is Mr Solomon Moloi. I am indebted, thank you Mr Chairperson.

That is Mr Moloi present here today.

CHAIRPERSON: I see Selina Moloi was count 9. Which was Solomon Moloi, which count was that?

ADV STEENKAMP: Number 6 Mr Chairperson, on top of the page there. He is found innocent.


ADV STEENKAMP: That is Solomon Moloi.

CHAIRPERSON: Yes, it is the very first one on page 47 of the record.

ADV STEENKAMP: That is correct Mr Chairperson.

CHAIRPERSON: Thank you, thank you Mr Mhlaba. We have noted the situation.

SOLOMON MOLOI: (sworn states)

EXAMINATION BY ADV STEENKAMP: Thank you for your indulgence Mr Chairman and Honourable members. Mr Moloi, just for the record, can you indicate to us first of all, what is your current occupation and where are you staying?

MR MOLOI: At the moment, my name is Solomon Moloi, I am self employed and I reside at Palm Springs. I am dealing with building material.

ADV STEENKAMP: Is it also correct in saying that during the day of the incident, being the 31st of July 1992, you were staying near Zola 3, Soweto, is that correct?

MR MOLOI: At that time, I would like to explain everything that happened.

ADV STEENKAMP: Can you just confirm the question, on the day of the incident, where were you staying? Were you staying at Zola 3, at the house where the incident occurred or where were you staying?

MR MOLOI: I was just a visitor there, I was not staying there when this thing happened.

ADV STEENKAMP: The deceased in this matter, did you know him and if you did know him, how did you know him?

MR MOLOI: I know him. He is very much younger than I am, he is far from my peer.

ADV STEENKAMP: This is the deceased, am I right in saying you were friends?

MR MOLOI: We were not friends. I was never his friend.

ADV STEENKAMP: The applicant today before the Committee, do you know him, and if you do know him, how do you know him?

MR MOLOI: Yes, I do know the applicant. I know him from Zola 3. As I had already explained that he grew up under me, but he was far younger than me when we grew up. I know him very well.

ADV STEENKAMP: At the day of the incident, can you describe to us where were there so many people inside the house, what was happening before the incident?

MR MOLOI: I will start from scratch. I have heard him - could you please repeat your question.

ADV STEENKAMP: If you can maybe just follow the questions, I will give you the opportunity to explain exactly what you feel Mr Moloi. I understand how you feel. Can you just explain to the Committee why were there so many people inside the house?

MR MOLOI: This person came to kill me with a hand grenade, that is why there were many people in the house. It is the people that he brought into the house.

ADV STEENKAMP: Am I right in saying that you are opposing the application because you feel that after listening to the applicant, the testimony of the applicant, that you feel he is not making a full disclosure, am I right?

MR MOLOI: Yes, that is correct. That is why I am opposing the application.

ADV STEENKAMP: Can you indicate to the Committee why you are saying so?

MR MOLOI: He has testified that he came into the house in order to tell us to switch off the lights, and he was called. He said he was called to the house, or into the house, that is not true. He was never called. He came there because he had a purpose to be there.

ADV STEENKAMP: You can proceed. If I may just ask you to speak a bit slower so that everybody can just write down what you are saying, thank you. You may proceed.

MR MOLOI: Should I start from scratch, or where should I start?

ADV STEENKAMP: Just tell us in your own words why do you disagree with the testimony of the applicant as you have heard it.

MR MOLOI: We had a tiff with the applicant during the year 1980 or the early 1980's, I am not sure as to which year was it, but during the early 1980's, we had a squabble. As a person that I knew who grew up in the same area where I lived, when the strikes started, the applicant was burning people using different instruments, even plastics, to burn people.

On this particular day, when I was coming back from work, he was at a gate at number 299. I greeted him. He also greeted me and I asked him to explain to me as to why he engaged in these activities of burning people. That is how the tiff arose.

He even threatened me that he was also going to burn me, because that was none of my business that he was burning people. I actually wanted to advise him and admonish him as he was younger than me. That is when the squabble started, then he started threatening me. I assaulted him. He told me that he is a member of the ANC, he is an askari.

They were able to separate us. Then during 1990 I bought a house in Palm Springs, that is where I went to stay and I did not expect this to happen.

ADV STEENKAMP: Sorry to interrupt you, if you can maybe just go to the day of the incident. Why are you feeling that the testimony of the applicant as far as you are concerned, he is not making a full disclosure? If you can, go to the day of the incident, thank you.

MR MOLOI: On this particular day, I had visited house number 299. At about two or three o'clock during the day, I knocked off at work, from work at one o'clock and proceeded to my place. My place is not far from my in-law's place. I took my wife with from my in-law's place to my place.

Then when we were going back to my place at 299B, we were accosted by the applicant. He had a gun in his possession, as well as a hand grenade.

I don't know whether it was only one hand grenade or more than that. Bongani said to me, yes, do you still remember me? I said but you grew up under me and you are young, how can you address me in this manner. He said to me do you still remember what you did to me when you assaulted me?

To me it came as a surprise that he could say that, because I thought that the past had all belonged to the past. Then he threatened me with the hand grenade and we were still in the street at that time. I was with my wife at that time. I said if you are going to injure me with the hand grenade, then you should do that whilst I am still outside, then my wife said, just leave this young man, let's go into the yard, and forget about him.

We went into the yard and it was at about three o'clock. As I was sitting there, I was quite perturbed and thinking about this young man who had threatened and accosted me. I had seen earlier that he had a gun and also a hand grenade.

I advised my wife that we should phone the police. At that stage I phoned the police. They took quite some time before they arrived, but they ultimately did. I explained to them as to what had happened, that he had threatened me with regard to the past incident. He even said to me I was an informer, I was a police informer and that particular day he was just going to kill me, he was going to use the hand grenade to kill me.

The police promised to patrol the area or the house, but this policeman knew this young man, the applicant, he even referred to him by his nickname Gundwani, which means mouse. This policeman pointed out that Gundwani was a very dangerous man, and they needed to patrol the area of the house since I had been threatened with death.

I said to the police they should stay with me because I was also scared, but they refused and said that they were going to patrol. At about seven o'clock, we heard some kids knocking at the door. My wife's sister responded, she opened the door and my grandmother was in the kitchen, as well as James. The children said they had been sent by Bongani, that is the applicant.

He had said to them that there was a police dog that he wanted to kill that particular day and he wanted the people to switch off the lights. I was at the dining room at that time.

I said they should go and tell Bongani that we are not going to switch off any lights. They left. I think they went to tell him our response to his request or his demand.

After about three to five minutes, the applicant himself came because he was quite a dangerous man in that area, he came personally and as I peeped through the door, I could see that he had gotten into the kitchen now and my wife as well as her sister were in the kitchen at that time. I was in the dining room.

My brother-in-law, Mr Mazibuko, that is Joseph, was next to the stove in the kitchen, just sitting and lazing around there. That is when I saw the gun that he had as well as the hand grenade.

We decided to try and prevent him from attacking us. I pounced on him, we were fighting for the hand grenade as well as the gun. We struggled for the gun and the hand grenade. That is when I opened the drawer, I came across a fork. I thought I would get something better in order to be able to cut his hand.

I used the fork in order to try and make him or force him to release the hand grenade that was in his possession. Whilst I was still struggling and grappling with him, my other brother-in-law James, because he was now scared and this one was screaming, the applicant was screaming that the pin of the hand grenade had been released and now we were in danger.

I said that is fine, if the two of us were going to die, I was going to die fighting him. I was going to fight him to the bitter end. James got scared by the fact that the pin of the hand grenade or the safety pin had been released. That is when James opened the door. The one who died, was the one who was sitting next or just behind the door.

When James opened the door, the other gang that was with the applicant was able to gain entry. As he went out, that is the applicant, he threw this hand grenade inside, because the gun had fallen, it slid right under the table inside the house.

When this gun slid, I dived for the gun trying to run after him. That is when he threw the hand grenade and that is when my brother-in-law fell onto the ground. When I got into the street and tried to shoot them with their own gun, or with his own gun, I found that the gun was not functioning. I don't know whether it did not have bullets in it or it was dysfunctional.

All the testimony that he has rendered here, is just blue lies. He is not telling the truth, that was very much intentional.

My other sister-in-law that is Sophia Mazibuko, was also injured and she got mentally disturbed after the incident. She also got injured and mentally disturbed from that time till now, now I have to maintain her children. The applicant is coming to seek amnesty whereas there isn't a single scrap of truth that he has spoken before the Committee.

ADV STEENKAMP: Just indicate to us, how were you injured and what type of injuries did you sustain?

MR MOLOI: I was quite lucky to escape without any serious injury, except for minor scratches on my forehead.

ADV STEENKAMP: Thank you Mr Chairman, that will be the testimony of Mr Moloi.


CHAIRPERSON: Mr Moloi, when the applicant came to the house, did you hear what he wanted there?

MR MOLOI: He never told me, but I heard from the boys that he had sent before, that he wanted us to switch off the lights because he wanted to kill a certain dog. Then I thought I am the dog that he was supposed to kill because earlier on he had actually threatened that he was going to kill me.

I thought he had come to do just that.

CHAIRPERSON: But he, to your knowledge, he didn't come to the house specifically looking for you?

MR MOLOI: According to my knowledge, he had come to look for me specifically.

CHAIRPERSON: Yes, but that is what you thought, you thought he was coming to look for you, but he never said that to anybody, he never asked for you when he came to the house there, do I understand it correctly?

MR MOLOI: He had said earlier on that he was going to come back and kill me. I knew that when he came back, he had come for me.


CROSS-EXAMINATION BY MR MHLABA: Just one or two questions Mr Chairman. Mr Moloi, you told the Committee of a squabble which you had earlier with the applicant here, and you further mentioned that the applicant is a person who grew under you, that was very young to you. Did you feel very much disturbed by getting engaged in a squabble with such a young man?

MR MOLOI: I do not get your question. Could you please repeat it.

MR MHLABA: You have told the Committee of a squabble which you had earlier on with the applicant and you further mentioned to the Committee that the applicant is a person who is known to you, and he has grown under you. That is, he is a very young person. Did you feel offended by having to engage in a squabble with such a young man?

MR MOLOI: I wasn't prepared to fight with him, but the manner in which he addressed me, I ended up having to assault him.

MR MHLABA: It becomes very clear Mr Moloi, that you are still having a score to settle with the applicant here and it is the sole purpose which makes you to oppose this application, not that your opposition has any substance.

MR MOLOI: I do not have any spirit of revenge in so far as Bongani is concerned. I am opposing what he said and this is what has prompted me to come and give testimony in order to enlighten the Committee as to what really happened.

MR MHLABA: I am saying to you Mr Moloi, that there is no material difference in what the applicant said. The applicant said that the purpose for going to the house, was to request the people to switch out the light on the front, and I don't see any contradiction at all. You are also saying that.

MR MOLOI: This matter is clear. During the day he had a lot to say to me, that he was going to come back to me later on, and when he ultimately came, he was still reiterating his words, he uttered during the day, that he had come to kill this dog that he had referred to during the day. He came for me.

MR MHLABA: Did you know the applicant to be belonging to any of the political organisations or the Self Defence Unit?

MR MOLOI: No, I never knew him to be politically active. I heard later on that he was a comrade. That is where our squabble started, when they were burning people.

I had asked him as to why they were burning people, that is how I knew that he was a comrade. As to whether he was involved in any political activity, I have no clarity.

MR MHLABA: Thank you Mr Chairman, I've got no further questions.


CHAIRPERSON: Thank you mr Mhlaba. Any questions?

MR SIBANYONI: Mr Moloi, are you personally a member of any political organisation?


MR SIBANYONI: That is the only question Mr Chairperson.

CHAIRPERSON: Thank you very much. Adv Steenkamp, any re-examination?

ADV STEENKAMP: No further questions, thank you Mr Chairman. If I may also ask if this witness may be excused?


CHAIRPERSON: Thank you Mr Moloi for coming to give evidence. You are excused from further attendance, thank you.


ADV STEENKAMP: That will be the case for the victims Mr Chairman, thank you.

CHAIRPERSON: Mr Mhlaba, do you want to address us?

MR MHLABA IN ARGUMENT: Thank you Mr Chairman, my address will be a very short one.

Mr Chairman, I submit on behalf of the applicant that amnesty should be granted as the applicant has complied with the provisions of the Act.

I want to firstly deal with his application form. The application form Mr Chairman, as subsequently amended, I submit it complies with the requirements of the Act.

Secondly Mr Chairman, the offence in respect of which this applicant is seeking amnesty, clearly relates to a political motive, clearly relates to a political objective, and it is my submission Mr Chairman, that it became common cause that these offences were committed in the course of the conflicts of the past and it further became common cause that at all relevant times, this applicant was both a member of the African National Congress and a member of Umkhonto we Sizwe.

It further became common cause that after he returned from exile, the applicant participated in Self Defence Unit establishment with the full approval of the African National Congress.

Lastly Mr Chairman, I will want to submit that there was no material contradiction in the evidence tendered by the applicant and I also do not find any material contradiction with respect to the evidence tendered by Mr Moloi in opposition of the application and what has been tendered by the applicant.

It is therefore my respectful submission that there has been a full disclosure and consequently the applicant is entitled to an amnesty and request the Committee to grant same accordingly.

Thank you Mr Chairman.

CHAIRPERSON: When, on the applicant's version, when he threw the hand grenade into the house, we are just talking about this one incident, the question here - what was his motive at that stage, what motivated him?

MR MHLABA: Mr Chairman, I have understood the applicant to have indicated to the Committee that when he went into the house, he had in his possession a hand grenade, but he was attacked by Mr Moloi apparently who was trying to disarm him by stabbing him on the hand while he was holding this hand grenade, and it is in that scuffle that the safety pin was dislodged and the hand grenade subsequently exploded.

CHAIRPERSON: But the - I am speaking specifically about the circumstances under which the hand grenade landed up in the house. How did it leave the hand of the applicant?

MR MHLABA: Mr Chairman, the evidence tendered here is that it was, it fell out of the applicant's hand after he was stabbed and in fact he threw it away after the safety pin had fallen and as he was rushing out of the premises, he dropped the hand grenade as he realised that it could explode on him.

CHAIRPERSON: Was the evidence of the applicant not that he had thought he would give these people this present that they wanted? Wasn't that the testimony?

MR MHLABA: Not as far as I could remember Mr Chairman.

CHAIRPERSON: Are you saying that the evidence is that it was purely accidental that the hand grenade fell out of the hand of the applicant?

MR MHLABA: That is exactly how I understood the testimony of the applicant Mr Chairman.

CHAIRPERSON: I might be mistaken, I am just trying to locate the portion of the evidence.

ADV GCABASHE: Mr Chairman, I must say that was my note as well. The interpretation was the present, that this thing they wanted, he was going to leave with them. That was the interpretation, of a present. My notes are similar. My recollection is similar to what you have stated.

Maybe it was interpreted incorrectly, but certainly that is what the interpretation was.

INTERPRETER: Excuse me, from the Interpreters, the interpretation was not incorrect.

CHAIRPERSON: My colleague has now confirmed my impression of the testimony and that is why I am raising it, to try and ascertain exactly under what circumstances did the hand grenade happen to explode and happen to land inside the house.

Is your, well, I will just ascertain from Mr Sibanyoni, what his note is before I come to you.

We, the panel, seems to agree that at least the interpretation that was relayed to us, was to the effect that the applicant was leaving this present that the people wanted, with them. In other words, the effect of the translation of the testimony was that he had deliberately thrown the hand grenade into the house.

Can you clarify that?

MR MHLABA: Mr Chairman, the interpretation from Zulu to English may have escaped my comprehension to that extent, and the reason for that is that I am sitting close to the applicant and I am able to follow the proceedings in both languages.

That I submit, was not the manner in which it should have been presented.

INTERPRETER: Excuse me, from the Interpreters, ...

CHAIRPERSON: Is it your submission that the version should be accepted on the basis that it landed by accident in the house and exploded because of the attack on the applicant?

MR MHLABA: That is correct Mr Chairman, and in addition to that, it became very apparent by Mr Moloi's testimony that the safety pin was out of the hand grenade itself.

He further stated that he was stabbing him with a fork on his hand. He said he had hoped he could have found something which could inflict more harm to the applicant, and unfortunately could only find a fork, which he used.

On that basis, I would persuade the panel to agree with the interpretation that it was accidentally left there, it was accidentally released.

CHAIRPERSON: Mr Mhlaba, this point can be of some importance to your client's application, specifically in regard to this hand grenade incident.

We, as I have said my colleagues and I had heard, of course the interpretation on the basis of what was really an intentional throwing of the hand grenade into the house to explode.

Now, of course these proceedings are recorded, but perhaps it is easier to clarify this issue, in fact I am inclined to subject to what Adv Steenkamp has to say as well, I am inclined to have this issue clarified with the applicant, with your client, so that we put it beyond any doubt.

Have you got any submission about that before I go to Adv Steenkamp?

MR MHLABA: Not, if I could maybe be afforded an opportunity to talk to the applicant in that regard, whether this opportunity is afforded to me now or after you have handed it over to Adv Steenkamp, does not really matter Mr Chairman.

CHAIRPERSON: All right, so what you are saying is that you don't have any objection if we were to recanvass this particular issue with the applicant?

MR MHLABA: That is correct, I've got no objection Mr Chairman.

CHAIRPERSON: Provided that you are given an opportunity to consult with him or what?

MR MHLABA: That not being a condition for, I will also ask for an opportunity to consult. It will not take me long, just less than three minutes Mr Chairman.

CHAIRPERSON: Well, I will come back to you. Adv Steenkamp, I don't know what your notes reflect about that particular portion of evidence, but as I have indicated, we have this note here, we've got that recollection, we are inclined towards the view that perhaps we should clarify this with the applicant, that particular question of clarifying it with the applicant?

ADV STEENKAMP: Mr Chairman, my notes as far as I am concerned is also that it was quite intentional.

Maybe I misunderstood the translation, but that is what I understood. I can just maybe add, if this will be of any assistance, on page 40 of the Court judgement, there is a specific finding by the Court and I am referring to line Mr Chairman, it starts on page 40, line 7 until lines 15. The Court there refers to an intentional throwing of the hand grenade.

The last paragraph, the applicant left the hand grenade in the house or he threw it in the house, intentionally Mr Chairman. Then there is also a reference to Mrs Elizabeth Mazibuko who apparently was an eyewitness.

If you read the whole court record Mr Chairman, maybe I am mistaken, I think that is maybe the strongest point of the victims, is that this hand grenade, although whatever happened, it was the intention of the applicant to throw this hand grenade quite intentionally into the house.

If you read that specific section Mr Chairman, I would say this is actually going the side of my understanding of the evidence of the applicant. Thank you Mr Chairman.

CHAIRPERSON: Have you got any objection if we decide to recall the testimony, recall the applicant on this particular aspect, to let Mr Mhlaba be afforded an opportunity, a brief opportunity to consult with his client?

ADV STEENKAMP: No Mr Chairman, I think it is in the interest of justice, thank you Mr Chairman.

CHAIRPERSON: Mr Mhlaba, I am sorry to interrupt you because I was going to give you that opportunity in any case now.

I don't know if you want to say anything further, but we intend to stand down for a few moments, to allow you to consult with your client on this particular issue, and then I intend to call him back just to clarify this particular issue for us so that we don't have any misunderstandings around what might turn out to be a very important aspect of this particular aspect of his application.

Of course, it would be good to at least have it authoritatively clarified also for the purposes of our interpretation service that we have here, so I think it is important all round to clarify the matter. I am going to stand down for a few moments, won't you just indicate to me when you are ready and then I am going to reconvene. We will adjourn for a short while.



CHAIRPERSON: Mr Mhlaba, have you had an opportunity to consult?

MR MHLABA: Certainly Mr Chairman, and I just want to apologise, it was a mix up on my interpretation of what was said by the applicant.

The applicant indicated to me that at the time he was attacked, he had in fact an opportunity to get out of the property himself, then threw it back to the house.

CHAIRPERSON: Does that largely confirm the impression that the panel had of that particular portion of the evidence?

MR MHLABA: Mr Chairman, I could not get the question clear?

CHAIRPERSON: Does what you understand now, coincide with how the panel heard the testimony on that aspect?

MR MHLABA: That is correct Mr Chairman.

CHAIRPERSON: All right, I don't know whether there is any sense in actually recanvassing this with the applicant, because I think that the original potential difficulty arose because of the way in which you had understood the testimony, so I don't know if there is any sense in recalling the applicant really.

MR MHLABA: I agree with the Chair, there will not be any sense.

CHAIRPERSON: Do you want to add any other points to your submission? I have been discussing this particular issue with you at the last juncture?

MR MHLABA: Mr Chairman, yes, only in so far as I had already finalised by submission, I just want to recap on this very issue which prompted the short adjournment.

Mr Chairman, the conduct of throwing the hand grenade into the property was because the applicant tells me that he had viewed the victims there in particular Mr Moloi, to be a person who is anti-liberation and that is the reason that he threw the grenade back into the property after he safely went out.

Thank you Mr Chairman.

CHAIRPERSON: Thank you Mr Mhlaba. Have you got any submissions?

ADV STEENKAMP IN ARGUMENT: Mr Chairman, I have no submissions except to say that on behalf of the victims, they are opposing the application of the applicant, as stated by one of the victims on the basis that there was no clear, full disclosure by the applicant.

He just wanted to use this amnesty process to clear his name. They feel that they were victims, the majority of them, they were victims because of a personal feud between Mr Moloi and himself and they had no influence on this, and as far as political content is concerned, they were never members of any political organisation and they feel in the circumstances, the application of the applicant must therefore fail and be turned down. Thank you Mr Chairman.

CHAIRPERSON: I don't know if you want to add anything further Mr Mhlaba?

MR MHLABA: Nothing to add Mr Chairman.

CHAIRPERSON: Well, gentlemen, I thank you again for your assistance. We will need a bit of time to consider the matter and to formulate a decision, and we will notify the parties once we are ready to release the decision in this matter.

The decision would be reserved.

ADV STEENKAMP: As you wish Mr Chairman.



DATE: 13-10-1998




DAY: 2

--------------------------------------------------------------------------CHAIRPERSON: Then, if I am not mistaken Mr Mhlaba is appearing in the next matter? What is the position with that Adv Steenkamp?

ADV STEENKAMP: I am very sorry, I do apologise Mr Chairman. Mr Chairman, the next matter is ready to be called, it is the amnesty hearing of Stanley Wanyane, Batwanda Godlo and Mr Masiso. It is applications 3112, 3111 and 3110 and you are absolutely correct, Mr Mhlaba is appearing on that case and we are ready to start with that matter immediately Mr Chairman.

CHAIRPERSON: All right, we will proceed to the next matter and Mr Mhlaba, will you get your clients in?

ADV STEENKAMP: Mr Chairman, the bundles are being made available to you now. I apologise that you didn't have that previously.

CHAIRPERSON: Thank you. We will proceed to the next matter on our role, which is the application of Stanley Molahlene Wanyane and two others. For the record, it is Tuesday, 13th of October 1998. It is a sitting of the Amnesty Committee, presided over by myself, Denzel Potgieter. I am assisted by Adv Gcabashe on my right and Mr Sibanyoni on my left.

The matters are those of Messrs Wanyane, Godlo and Masiso. The Wanyane matter is AM3112/96, the matter of Mr Godlo is AM3111/96 and the matter of Mr Masiso is AM3110/96.

Just for the record, Adv Steenkamp?

ADV STEENKAMP: Mr Chairman, thank you, I am the Evidence Leader, and I am also appearing on behalf of Inspector E. Moletsani. He appears on page 1, if I can refer you to that, Mr E. Moletsani, he was a victim in this matter. As you wish thank you Mr Chairman.

CHAIRPERSON: Thank you Adv Steenkamp. Mr Mhlaba, do you want to put yourself on record?

MR MHLABA: Thank you Mr Chairman. I am appearing on behalf of the three applicants. I will commence by leading evidence of Molahlene Stanley Wanyane, being the first applicant, and he will want to testify in English, thank you.

CHAIRPERSON: Thank you Mr Mhlaba. You've got nothing else put on record?

ADV STEENKAMP: Mr Chairman, unfortunately just a matter of Section 19(4) requirements, if you would allow me Mr Chairman.

Mr Chairman, as far as the requirements of Section 19(4) is concerned, pertaining to this specific hearing, all the victims were notified. Yesterday Senior Inspector L. van Heerden was here, actually at the hearing. He indicated to me that he is not really interested in the hearing at all.

As far as the other victims are concerned, except Mr E. Moletsani, their names were called out, they were notified, they are not in attendance here, except Inspector E. Moletsani, who is opposing the applications, all three applications, on the basis that there was no political motive for the incident which occurred near Magaliesburg. As you wish Mr Chairman.

CHAIRPERSON: Thank you Mr Steenkamp. Mr Mhlaba, do you wish Mr Wanyane to be sworn in?

MR MHLABA: Please Mr Chairman, thank you.

CHAIRPERSON: Adv Gcabashe, do you want to swear him in.


EXAMINATION BY MR MHLABA: Thank you Mr Chairman. Mr Wanyane, can you for record purposes, can you briefly explain to the Committee your date of birth and the place of birth and your educational background?

MR WANYANE: I was born on the 29th of May 1964 at Meadowlands, Soweto. I started my primary education in the far Western Transvaal, at a place called Makwassie, until standard 4. Thereafter I left for Potchefstroom to stay with my uncle, while I attended my school from standard 5 until standard 8 at Trokwe High, ...(indistinct) township, Potchefstroom.

I then went to Itsoseng township, nearer to Lichtenburg in the Western Transvaal in the former Bophuthatswana. Early in 1980's I returned home to the Meadowlands, where I finished my matric at Gelokitso High School at Meadowlands.

I attended University in the Eastern Cape, Rhodes University from 1989 and 1990 to pursue a degree in law. I only stayed there for two years and decided to return home and enrolled with UNISA in 1991 to complete the degree, but unfortunately I could not complete it because we were arrested for this incident some four weeks before the examination.

After our conviction, I enrolled again with UNISA but changed fields and majored in the political sciences, African politics and politics.

I graduated cum laude in 1996 and am on the verge of completing an honours degree, hopefully with specialisation in African politics. Thank you.

MR MHLABA: Thank you Mr Wanyane. During the occurrence of being a student, did you participate in any political movements and if so, give us the details thereof?

MR WANYANE: My involvement in student organisations, began with COSAS. I was active in the Student Representative Council in the early part of the 1980's, at Gelokitso until I finished matric.

I was also a member of SASCO, the student congress at University. In 1997/1998 I was the Chairperson of the Meadowlands branch of the then Soweto Youth Congress. I served also in the Walter Sizulu Zone of the Soweto Youth Congress, that comprise areas Dobsonville, Meadowlands, Diepkloof and Dube.

I also represented the Branch in the then Area Committees of the United Democratic Front. I served for a while in the Soweto Civic Association, I was helping the comrades there, in my capacity as the Chairperson of the Youth Congress and I also served for a while in the Central Executive Committee of the Soweto Youth Congress during the state of emergency years.

That was the time when virtually the entire Executive Committee was in detention. I was one of the very lucky few not to have been detained.

MR MHLABA: Thank you Mr Wanyane. You are applying today for amnesty and I want to draw your attention to page 3 of the bundle, with the panel's permission, page 3 of the bundle, paragraph 9.

The offences on which you are applying amnesty for are murder, attempted murder, indicate 7 charges, possession of AK47 rifles, rounds of ammunition for AK47, eight magazines and seven mini-limpet mines, Makarov pistol and robbery of a motor vehicle. Are you, have you ever appeared in court, and if so, are you serving sentence in respect of any of these offences?

MR WANYANE: Yes sir, I appeared in court and was convicted on the 15th of February 1993, in the Rand Supreme Court and was sentenced to 15 years imprisonment for only two charges, the robbery of the motor vehicle and the murder of Mr John Babas.

MR MHLABA: Can you Mr Wanyane, explain to the Committee the circumstances under which these offences were committed and exactly how everything was planned and executed?

MR WANYANE: I think it is a lengthy story. Mr Chairperson, I think it would befit the occasion that prior to delving on to the events of 27 September 1991, I should encapsulate the background to the trip to Rustenburg on the 27th.

Before that, I must point to you Mr Chairperson, that it is for us, this sitting, that this sitting represents an opportunity for us not just to be here to to have you here, or to have our families here, our comrades and everyone, we have had, but to place at the disposal of this Committee, the reality of our case without fear, without reserve and knowing full well that we have our own deficiencies, but confident Mr Chairperson, that we will do what we intend to do here today, and also that our appearance before you, we hope would mark an act of rebirth and renewal for us.

It would liberate not only our bodies, but our tortured souls, our intellects and our consciences. I would begin with the MK underground extension.

I have been in the underground structures of Umkhonto we Sizwe from 1987 until its disbandment. Some time in late 1989, I was approached by comrades Shakes, that is the deceased in this case, who told me that he thought that it would be appropriate to extend our structures and establish an underground unit at Hlobane near Rustenburg.

I was non-committal, but indicated to comrades Shakes that I would have to discuss the matter with comrade Babs, that is Batandwa Godlo, and later with our Commander, Mr Ben Banni, that was his combat name. We preferred to call him BB.

I remember discussing the matter with Batandwa some time on our way to a meeting of the Branch Executive Committee of the Youth League at our Branch and following more pressure by this Rustenburg based person, Modise, who was known to comrade Shakes. We brought the matter to the attention of BB, the Commander who felt that it was a good idea.

In terms of the matters of operation in the underground, it was vital that we needed to delay the matter so as to test the trustworthiness and commitment of Modise, the Rustenburg based activist. In the mean time we kept on supplying Modise with more political literature to acclimatise himself with the policies of the movement through Shakes of course. We did not have to have any direct consultation with him.

Our Commander BB, also decided that Shakes must not continue, must continue I mean, contact with Modise in Rustenburg, whose name was later changed to Tsepo, that was the combat name given to Modise by BB and that none of us here, particularly Batandwa and myself, should have any direct contact with Modise.

We subsequently decided to withdraw comrade Shakes from all the structures of the Branch including other structures of the Youth Congress on which he was serving, so that he could focus his attention on the activities of MK and the underground.

But I got to understand later that Tsepo, that is Modise, did not loose hope at all, but kept on persuading comrade Shakes because he was very prepared to serve MK and ensure that he establish structures of MK in its place.

Some time in early 1991 comrade BB, our Commander, fetched us, that is Batandwa and myself, and organised a meeting with the late comrade Chris Hani and when he introduced us to him, he said to us that he knew us very well from the briefings he had held and reports from comrade BB.

Before that, I must point out Mr Chairperson, we came to know comrade BB through one of the comrades who had been working in the structures of the organisation, comrade Margaret Stofile.

I got to know at a later stage, that she was a Commander above our Commander, so it means that BB was reporting to her. We discussed so much things with comrade Chris Hani, a number of issues, including the accommodation and return of our exiled comrades, the role of MK underground structures in the face of escalating violence by forces of the apartheid regime on our communities.

He pointed out that he was very impress with the reservations that we had had on the document For the Sake of Our Lives, that is the document that deals with the establishment of community based Self Defence Units.

He was also elated to know that I was a member of the SACP from the Branch and gave us the go ahead to meet him on any important matter that needed his attention every time that it was necessary.

We kept contact with him ever since, and around June, July 1991 comrade BB instructed us that the trip to

Rustenburg had to go ahead. After comrade Shakes, I repeat again, comrade Shakes, who is the deceased in this case, had given crash courses in the use of explosives. That included the limpet mines, the hand grenades, AK47 and pistols.

After Shakes had given the crash course to Tsepo in Rustenburg, so he was to introduce us to Tsepo in Rustenburg and we would submit a report to BB after we returned from Rustenburg.

Comrade BB, I remember he told us that comrade Chris himself had given the thumbs up to our trip to Rustenburg. I was fortunate, I suppose to confirm this from comrade Chris whom I met at the ANC Headquarters when I had gone there to fetch some pamphlets.

Comrade BB had instructed us and he was very adamant on this, to ensure the safe custody of the material of the weapons being transported to Rustenburg in case of any stoppages or road blocks on the way by the police because it was not easy to get material of that nature.

Now, on the 26th of September, that is the day prior to our departure for Rustenburg, we never had a chance to meet comrade Shakes who had been assigned the task to organise transportation for us because of our organisational commitments.

I remember we had attended a meeting of the Branch Executive Committee with Batandwa that morning and we had a very lengthy discussion with our Commander, BB that afternoon and I had attended a meeting of the Communist Party at night. So I spent the whole day attending meetings. The late meeting of the Party was in preparation for the launch of the Party Branch at Meadowlands the next weekend.

That meeting ended up very late at night and I then phoned Ben, this man here, I phoned him because he had his own transport to go and fetch me from Zone 9, to my rented room at Pomolong. I had not yet returned home since 1985, because of police harassment.

It was still not safe even after the unbanning of the movement, to return home, and the majority of our comrades, still retained their hide-outs.

He fetched me and on our way to Pomolong, we passed by at home and collected my food for the day and he dropped me at Pomolong. He thereafter expressed his concern about the safety of his vehicle, because it was very late at night. I then handed him a brand new Makarov pistol, fully loaded and a spare magazine, which was fully loaded as well.

The appointment for our departure was set for five o'clock the next day, the 27th of September 1991.

CHAIRPERSON: Mr Wanyane, are you now going to the 27th?

MR WANYANE: Yes, I am going to the 27th Mr Chairperson.

CHAIRPERSON: Then, we will take the lunch adjournment on that note and we will proceed after lunch with the incident on the 27th.

MR WANYANE: Thank you.

CHAIRPERSON: We will adjourn for lunch and we will reconvene at two o'clock.



CHAIRPERSON: Mr Wanyane, I remind you that you are still under oath. Mr Mhlaba?



Thank you Mr Chairman. Mr Wanyane, you were when the Committee adjourned, you were still explaining, can you proceed and do your submissions?

MR WANYANE: Mr Chairperson, I will begin with the events on the morning of the 27th. I said when we left, that our departure was set for five o'clock on the 27th. We had agreed that I would meet Ben, this Ben here, and Shakes at Zone 2 and we would collect Batandwa Godlo at his home.

But unfortunately on that morning, I arrived very late at the agreed spot, over an hour late, because I slept very late the previous night, as I was preparing for my examinations.

We collected Batandwa Godlo at his home that morning after six o'clock I think. We instructed Ben Masiso the applicant here, to drive, because he was more experienced in driving. Shakes was seated with him at the front passenger seat, Batandwa was seated at the back on the left and I was seated at the back on the right side of the car we were travelling in. That was a blue Citi Golf.

The following weapons Mr Chairperson, were transferred to Tsepo at Hlobane, two Stashkin pistols, two macaroff pistols, ammunition, one AK47, one RGD5 hand grenade and an F1 hand grenade.

CHAIRPERSON: Just go a bit slower Mr Wanyane. There was two macaroffs, what else?

MR WANYANE: Two macaroffs, two Stashkin pistols, ammunition.

CHAIRPERSON: Ammunition for those pistols?

MR WANYANE: Yes, they use the same rounds. One RGD5 hand grenade.



CHAIRPERSON: Hand grenade?

MR WANYANE: Hand grenade and an F1 hand grenade, including one AK47.

CHAIRPERSON: F1 hand grenade and one AK47 rifle?

MR WANYANE: That is correct. We found out later that the following were not found by the police: a macaroff pistol, a Stashkin pistol and the two hand grenades. The one RGD5 and the one F1.

I am still at the road block, but I am trying to explain some other thing that took place prior to that. As we go through this case Mr Chairperson, you will realise that the police did find some weapons at Zone 10, at Batandwa Godlo's home. Those weapons were left there by me about a week before the 27th. They were actually in transit.

I had no space or no place to put that material because I had another arms cache with me at my room at Pomolong. I went to Batandwa and arranged for the venue, we agreed that we could leave those weapons at his home in the back room because they were in transit after all.

I went to Ben to arrange for transportation and left those weapons there. Comrade Shakes, the deceased, had made arrangements for Tsepo to meet us at the taxi rank in Rustenburg. At certain points towards Magaliesburg, we came across a road block manned by traffic officers. I wish to emphasise to you Mr Chairperson, we had no intention at all, nor any plan, to shoot at the road block despite that our Commander, BB, had instructed us to ensure the safety of those weapons in case of police road blocks or stoppages.

I think that this is also shown by the fact that we complied with the order by the traffic officers to park the car we were travelling in, alongside the road and also because we waited for about ten minutes as the Officer was asking questions to our driver, Ben Masiso, while the other white Officer I think that is Mr Van Heerden, if I recall his name, kept on insulting us.

At one stage he asked us what was in the bags, because we had two bags in the back with us. He wanted to know what was inside and we did not answer. He left and joined his colleagues on the other side of the road.

Mr Chairperson, we did not intend to shoot at them from the onset. This is also indicated by the fact that this Officer was going to and fro from our car, parked on the other side of the road, to their cars on the other side of the road, at least twice if I remember.

We did not arrive at that road block and immediately opened fire. We did not even plan to kill anyone of them. As this Officer was speaking through the radio on the other side of the road, we could tell from the apparent uneasiness among the traffic officers, that there was going to be some trouble.

We strongly believed Mr Chairperson, that these Officers would accost us, search the car and confiscate these weapons and that would have meant arrest for all of us. We were determined to safeguard the material of the movement as instructed by comrade BB.

We then took a decision that Batandwa Godlo alone should move out of the car, and shoot towards the direction of the Officers, so as to get our way out of that scene. Ben then moved the car about 30 to 40 metres away from its original position.

That shooting did not last, I am adamant, fore more than a minute. On his way back to the car, comrade Babs fell and I moved out and shot towards the Officers. I could not see any of them, but I was just shooting towards their direction.

Comrade Babs got into the car, I thought that they must have shot him, that was not the case. He fell because of a hole on the side of the road. It means that I was giving him cover until such time that he got into the car. He got into the car and we drove in the direction of Krugersdorp.

I want to emphasise once more Mr Chairperson, that the fact that the car was stolen, we got to know that only after we were arrested and interrogated by the Security Branch, it was not what drove us to shoot at the Officers. We were primarily concerned with the safekeeping of this material, because indeed it was very difficult to get them.

A chase ensued and not far away, I think it is a distance of about 2.7 km, according to the police report in court, Mr Baba's car, a white BMW appeared and was immediately blocked and taken at gunpoint.

That was done because the car we were travelling in, had its back window shot and it had fallen down completely. It was also not travelling very fast, and because of this ensuing chase, we thought that that would be the fastest car to drive us out of that sector.

As the car was blocked, Batandwa and myself were so preoccupied with the weapons in the car, we wanted to make sure that we take them out with us, as we were moving out and running to this BMW, we saw that there was some disagreement between Ben and Mr Babas, the owner of the car.

I think he will explain it better. Two shots went off from the macaroff I gave him the previous night. It never changed hands at all. We got into this BMW and sat in the very same order we had sat in in the first car.

We faced the direction of Krugersdorp. I remember somewhere along the way, we turned and faced towards Randfontein. We saw that there was a helicopter hovering above and some traffic officers were closing down on us.

We turned back to the Krugersdorp, Magaliesburg road and faced Krugersdorp again. The car was very fast and somewhere the tyre of this car, burst and we all moved out and spread in different directions. It was again my responsibility with comrade Babs, to ensure that this material is safe.

We took out these bags with us, ran towards some plots. We did not know the area very well. We managed to hide this material, these weapons at various spots, including an old disused house apparently where they were later found by the police.

We left that area with no weapons in our possession, but after a while, we were surrounded by the police, who arrested us.

Right, we were taken to the police station, I am in the arrest now. In this police van, we were trying to formulate a story to tell to the police, but I do not remember reaching any agreement on the story to be told to them. At some point we suggested among ourselves, we should tell them that we were given a lift on our way to Rustenburg, by some two guys, unknown to us. But I don't remember reaching any agreement on that because the police station was not far away.

Also in the van, we had in our possession, the police did not find this, a sketch of a DLB, a sketch right of a DLB, that is a Dead Letter Box and we managed to destroy that and throw the pieces of paper out of the window of the van.

When we arrived at the police station, we were kicked, electrified and beaten up for over one hour. I was handcuffed in a very small room, the size of this township municipality toilets and kicked several times by one Captain Dick at the time. Captain Dick.

But before they left, I spoke aloud because I could realise that they were going to separate us, I said no, we are not responsible for this, George did all of this. George.

It meant that I was giving a signal to Babs Batandwa, to stick with this very same name. Because there was no way that we would compromise our comrade when he had not been arrested and reveal his identity to the Security Police.

We felt that because he had managed to evade the arrest, we should face the consequences and we stuck with that name throughout our case and throughout the trial.

The police left with Batandwa to his home at Zone 10, Meadowlands and found the weapons I had left there a week earlier, before our departure to Rustenburg.

They searched the house and also found the document For the Sake of Our Lives. That is a document detailing the formation of community based Self Defence Units.

They also found a letter which I had written to comrade Babs some time in 1989, 1990 while I was in the Eastern Cape at Rhodes, but this letter was never made available during our trial.

Although it was a subject of lengthy periods of interrogation by the Security Police, because it included the name of our Commander, where I had referred to him as BB and they kept on wanting to know who this BB was. I was evasive all the time.

On the night, the very same night, 27th September 1991, we were taken to the offices of the Security Branch and were informed by Major Kleynhans that we were being detained under Section 29 of the Internal Security Act and that we would be subjected to six months detention period without trial.

He promised that things were going to be very very tough for us. I knew in my mind that the period of interrogation or detention, had been amended by then. I, if I am not wrong, I should think it was reduced to two weeks. But we did not contest that, he just read out selected Acts from that copy.

Periods of interrogations followed one after the other, for over two weeks. I was still trying to paint a picture of me giving a lift by these guys not known to me. I did not know by then that they had found this letter and document For the Sake of Our Lives.

They had so many photographs of dead people with what seemed to be bullet wounds on the foreheads, they used to bring that to me very often at night. Maybe they thought I would be scared by that.

After a while Major Kleynhans said Stanley, I can tell you that you are lying. You were not going to Rustenburg on a lift, but you were going there to be trained in Self Defence Units, we have evidence. He produced this document.

I did not agree with him from the onset, but when he took out this letter, and I read the contents, I could see that yes, they knew something. He said that comrade Babs had told him that we were going to Rustenburg for Self Defence Unit training.

I said yes, this is the right thing. It would be a better sin to agree to being Self Defence Unit members, rather than MK operatives. That is the statement Mr Chairperson, that we did not deviate from throughout our trial until our conviction on the 15th of February 1993.

That was a fabricated statement made to the police. We felt Mr Chairperson, that there would have been no need for us to change that statement because of our lack of faith in the judiciary of the then apartheid South Africa.

I would like to proceed to another issue Mr Chairperson.

CHAIRPERSON: Thank you, please do.

MR WANYANE: Yes. The political objective, Mr Steenkamp, for the murder of Mr Babas.

It is true that by then MK had suspended the armed struggle, after the Pretoria Minute. But it was strongly believed amongst us, including our leadership, that that did not stop the MK from recruiting, organising and establishing structures inside and outside South Africa, and I should think that from the submissions made by the African National Congress to the Truth and Reconciliation Commission, that issue is also included that many of our comrades were taken for conventional training, outside the country even after the suspension of the armed struggle, in countries such as Tanzania, Uganda, India, Pakistan.

Recruitment and establishment of MK structures did not stop with the abandonment or with the suspension rather, of the armed struggle. As MK operatives, we had to take the responsibility to ensure the safekeeping of the material of the movement, we would never have departed with them so easily.

But I wish to point out Mr Chairperson and every one present here, that we view Mr Babas as not very different from other victims, particularly civilians who as innocent as they were, who as innocent as they were, I repeat, were caught in the cross-fire.

I believe that Mr Babas was not very different from a multitude of other South Africans who were either killed or injured while killed or seated in restaurants enjoying their meals or attending church services, or killed by rightwingers manning a road block.

I want to assume that this understanding, this remark would not be misinterpreted. Mr Babas was unknown to us and we did not plan to kill him in any way, nor take his motor vehicle by force. His racial belonging was also not a factor in this instance, his car Mr Chairperson, was taken by force because ours had been badly damaged during the shoot out and it could not travel fast.

We sincerely believed that by taking his car, we would be able to retreat out of the scene faster and secure the safety of MK's weapons. This would have enabled us Mr Chairperson, to make other arrangements for the transportation of those weapons to their intended destination in pursuit of the objective of establishing more underground structures for Umkhonto.

Throughout the years we have spent in prison with my co-accused here, we quite often talked about the death of Mr Babas, which continues to trouble us up to this day because we were accomplices to it.

We even at some stage decided, or rather agreed to communicate with his family to express our heartfelt sorrow at the loss of their beloved. Despite that, it would be extremely difficult to resuscitate that painful incident. We acknowledge that Mr Babas' death, Mr Babas' life was worthwhile and that his death at our hands, is very much regrettable.

We hope that his family, his friends and all those who loved him, would forgive us. We know that it is not very easy to do so, but that would be very much understandable.

As for our own part, we wish to declare to Mr Babas, his family, his friends in front of the entire South African nation, that we are deeply sorry. We hope that you will forgive our sins. That also applies to the traffic officers, who although as members of the Security establishment, were doing their daily or routine duties, we wish to express our heartfelt sorrow.

In conclusion, to all the Commissioners sitting here, to all the men in this country and women who have espoused this beautiful idea of reconciliation and this moment of national ...(indistinct), this moment represents an important era. This process that you are giving shape and texture to, is highly recommended, is highly commendable by us. Your preponderant contribution Mr Chairperson, would mark the opening to a new era. An era in which the infliction of pain and suffering of hatred and anger by men on his fellow beings, would be a thing of the past.

An era Mr Chairperson, whose dimensions would be measured on an intergalactic scale and whose substance will be based on the free and fullest development of the human personality. I wish to take this opportunity to thank you once more, to thank you once more for giving us this chance to meet eye to eye with those we have so gravely wronged. We reiterate our deepest sorrow and beg for your forgiveness.

I must say that I am deeply disappointed to hear that only one of the victims came to this session. I had hoped that even if they were going to oppose our application, we would be able to meet with them, express directly to them our deepest sorrow and regret.

It is understandable, we would not expect everyone like Mr Van Heerden to support the process of reconciliation in our land. That is not an easy thing. If we take all the conflicts of the past, all the grudges we have had in the past and place them in our hands.

I hope Mr Chairperson, that I have said all that I have wished to say to this sitting. If there are any things that I have left out or omitted to say to this Committee, because of the very fact of my fallibility as a human being, my fellow comrades, will touch on those. We have been through a hard time throughout our lives. We have never enjoyed our youth because of the conflicts of the past.

I do not think that this Commission should also be party to condemning us to those dungeons of hopelessness. We have a life to live as well. We would like to forget and erase from our minds, everything that has happened and move forward, and make whatever positive contribution we have to make, in our new country, in our fragile democracy.

I now rest my case Mr Chairperson.

MR MHLABA: Thank you Mr Wanyane, I just want to take you back on just one aspect. You have often in your evidence referred to Ben. Is that the third applicant in this matter?

MR WANYANE: That is correct Mr Mhlaba.

MR MHLABA: And again you have on several occasions referred to Babs, does that relate to the second applicant in this matter?

MR WANYANE: That is correct Mr Mhlaba.

MR MHLABA: You have briefly touched on the incident when there was a scuffle between Ben and the deceased, Mr Babas.


MR MHLABA: Can we read into your statement that Mr Babas was shot during that scuffle by Ben?


MR MHLABA: Thank you Mr Chairman, I've got no further questions.


CHAIRPERSON: Thank you Mr Mhlaba. Adv Steenkamp?

CROSS-EXAMINATION BY ADV STEENKAMP: Thank you Mr Chairman. Mr Chairman, I have spoken to Inspector Moletsani, he is sitting here today. I just want to put the following on record.

Inspector Moletsani was shot twice in his right leg during the incident. During the last few years, he couldn't understand why he as a normal law-abiding citizen doing his duty, routine work, was shot. After he listened to the applicant, he has decided that in the spirit of reconciliation, he is withdrawing his application for opposing the application of the applicant, and therefore doesn't have any further questions for the applicant. As it pleases you, Mr Chairman.


CHAIRPERSON: Thank you very much Adv Steenkamp. Mr Moletsani, we have noted what was placed on record on your behalf by Adv Steenkamp.

We are gratified by the fact that you have received some answers to questions that had been troubling you for quite some time, which of course is one of the underlying purposes of this process. Thank you.

Mr Mhlaba, we have a fairly full account of the particular incident from Mr Wanyane, a very full account. Are you placing any further testimony before us?

MR MHLABA: Mr Chairman, in fact I wanted to suggest to the Committee that if the evidence of Mr Wanyane covers everybody as I believe it does, I only wanted only the, his co-applicants just to confirm the facts in so far as it relates to them.

CHAIRPERSON: That seems to be a sensible way of dealing with the matter and my colleagues are in agreement with me that that seems to make perfect sense under the circumstances.

It will be the most effective way of dealing with the matter. Certainly we don't have any difficulty if you were to simply do that.

MR MHLABA: Thank you Mr Chairman, I would like to ask the second applicant to confirm that after an oath has been administered to him.

CHAIRPERSON: Will he be speaking in ...

MR MHLABA: He will also be testifying in English Mr Chairman.



DATE: 13-10-1998




DAY: 2

--------------------------------------------------------------------------BATANDWA GODLO: (sworn states)

EXAMINATION BY MR MHLABA: Mr Godlo, you have listened to the testimony of Mr Wanyane, who is your co-applicant in this matter, and very often your name was mentioned and do you confirm the contents of the testimony of Mr Wanyane, in so far as it relates to you, to be the truth?

MR GODLO: Yes Mr Chairman. I confirm everything that Stanley said here. That is nothing else but the truth.

MR MHLABA: Thank you Mr Godlo. Mr Chairman, that concludes the testimony of Mr Godlo.


MR MHLABA: Mr Chairman, I beg leave to call the third applicant Mr Masiso to confirm, after an oath has been administered.

CHAIRPERSON: There won't be any problem. Adv Steenkamp, I assume that there are no questions?

ADV STEENKAMP: Mr Chairman, thank you. Once again, on behalf of Mr Moletsani and in the spirit of reconciliation, he is not opposing the application of the other two applicants as well.



DATE: 13-10-1998




DAY: 2

--------------------------------------------------------------------------BEN MASISO: (sworn states)

EXAMINATION BY MR MHLABA: Mr Masiso, you listened to the testimony of Mr Wanyane, the first applicant in this matter. Can you confirm the testimony to be the truth in so far as it relates to the role you have played in this incident?

MR MASISO: Yes, that is correct.

MR MHLABA: Thank you Mr Chairman, I've got no further questions.


CHAIRPERSON: Thank you very much Mr Mhlaba. I suppose the position is the same?

ADV STEENKAMP: Indeed Mr Chairman, thank you.

CHAIRPERSON: Mr Mhlaba, does that conclude the testimony and the case for the applicants?

MR MHLABA: Certainly Mr Chairman.

CHAIRPERSON: And of course you wouldn't be putting any evidence?

ADV STEENKAMP: No Mr Chairman, I will not be calling any witnesses, thank you.

CHAIRPERSON: Thank you. Mr Mhlaba, do you want to address us?

MR MHLABA: Mr Chairman, I've got no address, the facts speak for themselves here.

MR SIBANYONI: Mr Mhlaba, if you can look at the first page of Mr Wanyane, paragraph 9, he speaks about possession of two AK47 rifles and then, but when he was listing the weapons, he spoke about one, is it perhaps a mistake?

MR MHLABA: Can I move closer to Mr Wanyane, just to clarify that. Thank you for the indulgence Mr Chairman.

I have established from Mr Wanyane, that he mentioned two AK47's, because they were arrested with one AK47 and he had left one at the place of the second applicant. It was only the weapon at the place of the second applicant, which was found by the police. He was convicted however, of the, the second applicant was convicted to offences relating to one weapon.

MR SIBANYONI: Thank you.

CHAIRPERSON: Mr Mhlaba, what is the position with the limpet mines and the detonators, the limpet detonators?

MR MHLABA: Mr Chairman, after, during my consultation with the applicant, it appeared to me that there were certain arms and ammunition which were not found by the police, and which were not at the scene relating to, which were not taken along at this incident, but there were ammunition which he had possessed and left and the place of the second applicant.

CHAIRPERSON: Does that, I am just looking at the judgement at the trial, in our papers that seems to relate to the second applicant and I suppose the second accused in that matter is the first applicant, although the surname is obviously misspelt in the judgement. I am looking at page 12 of the bundle.

MR MHLABA: Correct Mr Chairman, the second applicant in this application is the first accused in the criminal proceedings. The first applicant in this application was the second accused in the criminal trial.

CHAIRPERSON: What was the position of the third applicant in respect of the criminal matter?

MR MHLABA: The third applicant was never apprehended at the scene and he has all along been a fugitive of justice.

CHAIRPERSON: He has never been arrested or charged for any of these incidents?

MR MHLABA: That is correct. In fact he was never placed on the scene by his co-accused and that is the result Mr Chairman.

CHAIRPERSON: Because on page 15 of the record, the second paragraph on that page, in respect of count 15, there seems to be a reference to seven MPM limpet mines and nine VZD3M detonators. And then there seems to be some other part of a detonator which is referred to as "springdoppies", whatever that might be for the nine detonators that I have referred to.

It seems as if that, or those charges, counts 12 to 15, in the middle of page 14 of the record, it seems as if those charges were limited to the second applicant before us, who were the first accused at the trial.

It doesn't appear as if the first applicant was charged with counts 12 to 15, which relates to ammunition, various counts of ammunition and then these things that I have just referred to, the limpet mine stuff.

Is that how you understand the situation as well, to have been?

MR MHLABA: What I can state with certainty Mr Chairman, is that the first applicant was only convicted of robbery of the BMW and of the murder of Mr Babas, those are the only two counts and that will appear to be count 6 and count 7.

CHAIRPERSON: In any event, all three the applicants are persisting with the application for the counts or the offences which are listed on page 3, paragraph 9(a)(i) of the first applicant's application form?

They are all applying in respect of these counts or these offences which are listed in this paragraph?

MR MHLABA: Mr Chairman, save for applicant 3, he only applies amnesty in respect of murder and attempted murder, and that appears on page 9 of the paginated document.

CHAIRPERSON: I just want to record this properly. The third applicant you say, only applies in respect of murder. Is that the murder of Mr Babas?

MR MHLABA: That is correct Mr Chairman.

CHAIRPERSON: Then for attempted murder, are those the seven counts in respect of the incident with the Traffic police officers, traffic officers?

MR MHLABA: Certainly Mr Chairman.

CHAIRPERSON: Okay. Wasn't he also present in the vehicle that transported the arms that the first applicant referred to?

MR MHLABA: The third applicant was only fetched late after the arms had been loaded, and his task was mainly to drive, because he was perfect in driving.

CHAIRPERSON: But I mean, doesn't that even put him just on pure technical reasoning, doesn't that put him even more in charge as the driver of the vehicle, of those arms? Should his application not extend to those incidents as well?

MR MHLABA: Thank you Mr Chairman, I am indebted to the Chair. In the circumstances and in the event of no objection from Adv Steenkamp, I would want to move an amendment on behalf of the third applicant, to cover the aspects covered by the other two applicants.

CHAIRPERSON: So, to put it simply, all three the applicants are applying in respect of all the counts which are identified in paragraph 9(a)(i) of first applicant's application form?

MR MHLABA: That is correct Mr Chairman.

CHAIRPERSON: Adv Steenkamp?

ADV STEENKAMP: I've got no further submissions, thank you Mr Chairman.

CHAIRPERSON: Thank you. Gentlemen, it remains for me to thank you for your assistance in this matter. We will have to look at all of the material and prepare our decision in due course in the matter, once we are in a position to do so.

We will notify the parties when we are ready to deliver or convey the decision, which the Committee has come to.

Mr Mhlaba, we thank you for your assistance in the matter.

MR MHLABA: Thank you Mr Chairman.

CHAIRPERSON: Of course, you are excused, unless you have some other business with us.

ADV STEENKAMP: Mr Chairman, if I can be so rude to interrupt, I think there is another matter or matters that Mr Mhlaba is also involved in. I think the rest of the role, except tomorrow's matters, he is still involved in. I would suggest if I could be allowed Mr Chairman, that we can start immediately with the application of Mr Motahung. Mr Mhlaba is also appearing for Mr Motahung. Thank you Mr Chairman.

CHAIRPERSON: Mr Mhlaba, it seems like you are going to have a very busy day here and a busy time here. You have heard what your colleague has suggested, that we must move into the next matter which you also represent, the matter of Motahung. If you are ready to proceed in that matter, then we will continue to hear that.

MR MHLABA: Yes, we are certainly ready, but we will ask for a five minute adjournment before we will proceed.

CHAIRPERSON: I think that is fair enough, then you can rearrange the situation here. We will adjourn for a few moments, you will notify is when you are ready to proceed.












DATE: 13-10-1998


DAY: 2

--------------------------------------------------------------------------CHAIRPERSON: We are proceeding to the application of Jerry Chimanjana Motahung. We will just allow the persons at the back to leave.

ADV STEENKAMP: I am sorry for the commotion Mr Chairman. It is for the record, Tuesday, 13 October 1998. It is a sitting of the Amnesty Committee. The panel is chaired by myself, Denzel Potgieter. I am assisted on my right by Adv Gcabashe and on my left by Mr Sibanyoni.

Adv Steenkamp?

ADV STEENKAMP: Thank you Mr Chairman. Mr Chairman, I am the Evidence Leader, I am also appearing for Patricia Mtshwene, the deceased in this matter's father and mother, the victims Mary Mtshwene and the father, Mr Tranger J. Thalelo. For the record Mr Chairman, they aren't opposing the application of Mr Motahung, they would like however, to reserve their right to ask certain questions Mr Chairman.

CHAIRPERSON: Thank you Adv Steenkamp. Mr Mhlaba?

MR MHLABA: Thank you Mr Chairman. Thank you Mr Chairman, I am appearing for the applicant in this matter, and he wishes to testify in South Soto.


CHAIRPERSON: Thank you Mr Sibanyoni. Mr Motahung, have you got a problem with your eyes?

MR MOTAHUNG: I only have problems with exposure to the light.

CHAIRPERSON: Is it a medical condition?

MR MOTAHUNG: Yes, it is a medical condition sir.

CHAIRPERSON: Are you - you are not able to do without the dark glasses?

MR MOTAHUNG: I can take them off sir.

CHAIRPERSON: Can you, okay. All right. Mr Mhlaba?

EXAMINATION BY MR MHLABA: Thank you Mr Chairman. Mr Motahung, you are the applicant in this matter and you are applying for amnesty in respect of an offence of murder, attempted murder and possession of ammunition, is that correct?

MR MOTAHUNG: Yes, that is correct.

MR MHLABA: And your application for amnesty in respect of the murder case, does that relate to the death of Patricia Mtshwene?

MR MOTAHUNG: That is correct sir.

MR MHLABA: And your application in respect of attempted murder, does it relate to the victim being - if the Chair could bear with me - does it relate to Gladness Mfelasi?

MR MOTAHUNG: Yes, that is correct sir.

MR MHLABA: I have noted that you were also tried and convicted in respect of the assault to Patricia Mtshwene and Gladness Mfelasi. Is it your desire to bring an application for amendment to include these offences?

MR MOTAHUNG: Yes, I am suggesting that we should make that amendment sir.

CHAIRPERSON: Mr Mhlaba, will you just repeat that, I just want to make a note, can you just give us that detail again please.

MR MHLABA: The assault in respect of Patricia Mtshwene and Gladness Mfelasi.

CHAIRPERSON: Is it the same people, the same complainants in respect of, or the victims in respect of the murder and attempted murder?

MR MHLABA: That is correct Mr Chairman, it will emerge that they were assaulted prior to the murder and the attempted murder.


MR MHLABA: Thank you Mr Chairman. I will want to apply on behalf of the applicant for an amendment to incorporate the assault on the two victims.

CHAIRPERSON: Adv Steenkamp, is there any objection?

ADV STEENKAMP: No objection, thank you Mr Chairman.

CHAIRPERSON: Thank you. The amendment is granted Mr Mhlaba.

MR MHLABA: Thank you Mr Chairman. Mr Motahung, for record purposes can you tell the Committee when were you born and where?

MR MOTAHUNG: I was born in 1972 on the 15th of September. I was born in Vosloorus, in Boksburg. I started school in Dennilton from Sub A up to standard 3.

MR MHLABA: Mr Motahung, I want to take you back to your application, page 2 of the paginated bundles, item 5. Your date of birth is reflected as the 15th of November 1974, do you have an explanation for that?

MR MOTAHUNG: Yes. When I was arrested, I took advantage that if I decrease my age, I would, that would be a mitigating factor in court. That is why I wrote 1974 instead of 1972.

My correct date of birth is 1972, on the 15th of November.

MR MHLABA: Thank you Mr Motahung, may you then proceed and explain to us where you schooled and how you proceeded?

MR MOTAHUNG: I attended school in Dennilton where I began with Sub A up to standard 3. When I was busy with standard 3, I left back to the township in Vosloorus. I went to another school which is called Nagin primary school.

I have already passed standard 3. When I arrived at Nagin, I continued with standard 4 until I passed standard 5. After standard 5, I went to a certain high school called Erasmus. I did standard 6 there. During that time, I was recruited by my friend, he recruited me to the COSAS movement.

I played a role in COSAS up to the point where I became a member of the SRC. SRC falls under COSAS. After some time, violence erupted in the township. It started with a march, protest march where students engaged in the burning of the Councillor's house.

Then the police started to search for us. My name was mentioned by the police amongst those students who were wanted by the police.

I consulted with some of my friends who were students. I left South Africa, that is in 1989. I went to some of the African States.

MR MHLABA: Can you proceed?

MR MOTAHUNG: I went to exile and joined the ANC. When I arrived in exile, I obtained military training. After they came back after the suspension of the armed struggle, we were not doing anything in the military camps. We were informed that we were going to be incorporated in the South African Defence Force.

When I left Eringa I went to Dagau. It is one of the ANC camps. After I left Dagau, we left in a group. We left to Mazimbo. The reason for me to leave Mazimbo is that I wanted to attend school so that I would keep myself busy until I filled the form to be repatriated, that was in 1991.

I returned to South Africa, that was on the 17th of December 1991. The situation was not stable when I arrived in South Africa, or when I arrived at home. Immediately when we arrived, we found that our area was covered with violence.

In that violence there was a conflict between ANC members and IFP members. During that violence, I consulted with some of my friends and they were also members of the ANC.

I asked them about the situation as to whether what is the cause of the conflict. I observed that the situation was not normal, that I am not satisfied with the situation about the conflict between ANC and IFP.

IFP was launching attacks in the township, but they were using surprise attacks. It happened that day that I was having a conversation with my friend, who is Joseph Mofekeng and Vusi and Jabo, that is Gyza. We were discussing about the possible solutions, particularly to build, to formulate Self Defence Units so that we could protect the community because people were killed in numbers.

They were killed by Inkatha members. Vusi told me that he has an AK47 with him. At that time, I was receiving money from SACR, that was about R800-00 or at times they would give me R1 200-00.

Because of my observations about the situation, I met with a certain Mozambican, then I bought a gun from that Mozambican person. The gun I bought is a Toceroff. He wanted R800-00 for that gun. I gave him that R800-00.

We kept on discussing with some members of the Youth League. They were saying the guns we have, are not enough. Let us try to make a fundraising so that we should buy another AK, so that we would have three AK's, so that when we were attacked, we would be able to mobilise.

I made an initiative that we should consult with the business people, so that we should explain to them about the situation and about violence and the conflict about ANC and IFP and that the IFP is attacking in the township.

We were able to raise some money. We bought other two AK47's. There were three with the one which was brought by Vusi. After some days, IFP was continuing with the attacks in the township.

On the 16th of April 1994, we were coming from Basotho with some of my friends, we had a certain mission to do. We were on the ...(indistinct) street. At the end of the ...(indistinct) street, there is a T-junction. When we arrived at the T-junction, when we saw Patricia Mtshwene and Gladness Mfelasi. They were coming from a shoemaker, that is next to a saloon, that is at ...(indistinct) street. They boarded the taxi. I am the one who saw them.

I had my Toceroff which I bought from the person from Mozambique. We pulled them off from the taxi. After that, we started kicking them. We hit them with stones.

We hit them with stones. When I looked round, I saw people looking. I wanted to shoot Gladness Mfelasi. A certain man appeared just on the street of ...(indistinct) and Dibisu Street.

That person was a local driver. He was driving a private car. From there I saw people coming closer. I informed my friends who are members of the Youth League, that they should leave, you see that people are looking at us.

I said to Gyza and Jabo that they should go to Basotho. I myself and ...(indistinct) would go up to Jakothu, which is the next street next to Pankyi Drive. There was a certain house of Jakothu Street where we used to put our guns there.

I said to them we would meet in the evening. Left together with Pankyi. We went to Jakothu Street where were used to put our guns.

When I arrived there, I took an AK47. Pankyi had a gun on his person. We followed Gladness Mfelasi and Patricia Mtshwene, we saw them from the opposite street. We were looking at them when we approached through Jakothu Street.

I arrived there, then I told Pankyi to stay at the gate, then I entered and pulled an AK47. I pulled off the magazine, then I closed the safety pin. I put the cassette on me. Because they were running on the ...(indistinct) Drive, when they were running, they came to a four way stop, they were following Denella where they were staying.

Patricia Mtshwene was staying at Denella and Mfelasi was staying at the Mazulung Section.

When we arrived at the four way stop, that area was crowded by people. I crossed the street, I saw them but they were not able to see me. When they wanted to cross ...(indistinct) Street, I advanced and I crossed ...(indistinct) Drive, then I followed them. I was together with Pankyi.

I shot Patricia Mtshwene, I shot her with three bullets. She fell on the ground. I shot Gladness Mfelasi with three bullets. She fell on the ground. I informed Pankyi that he should look for people who wanted to see what was happening. If a person appears, try to scare him off by shooting in the air, so that people would not be able to identify us. I had a cap.

After shooting those two people, I pulled the gun, the after that the bullet went off, then I returned the magazine, then from there, we jumped the fence, we went to the main road, which was facing the road, that is M.C. Botha Street.

We went to ...(indistinct) street, then we went to Basotho Section, then we stayed in a certain house. That is where we met with another two guys, who I told them to go to Basotho Section. That is all about my testimony.

MR MHLABA: Mr Motahung, can you explain to the Committee the reasons why you attacked Gladness and Patricia?

MR MOTAHUNG: In 1991, when I returned from exile, up to 1995, there was a conflict in Vosloorus. Inkatha was attacking the people in the township.

They were using surprise attacks because they would come and shoot, and leave. Gladness Mfelasi together with Patricia Mtshwene were members of the people whom we were fighting with, that is members of the IFP and their uncle, who is Gugu Mtshwene.

The other person who seems to be the brother to Patricia Mtshwene, was a member of Inkatha. Patricia and Gladness were members. On that particular day when we saw them, because we were fighting with Inkatha, because we discussed with members of the Youth League that we should shoot all members of Inkatha who are in the township, because they give the people, Inkatha members who are in the hostels, about the information.

We decided that if we could kill those who were staying in the township, therefore we would be able to see the people who are attacking the community in the township. We killed those people.

After killing those people, attacks decreased. The situation was not like before after we killed Patricia and Gladness Mfelasi. They were members of the IFP. I think it was at the funeral of Patricia Mtshwene where we were able to identify them and then we confirmed that these people are members of the IFP because we investigated this matter before, but we were not clear about the information we had received.

When we saw them at the funeral of Moses, that is Moses Mtshwene, that is where we believed and confirmed that they were members of IFP because they wore IFP T-shirts and then they had guns.

MR MHLABA: Is it your case Mr Motahung, that you killed Patricia Mtshwene and attempted to kill Gladness Mfelasi because they were members of the IFP and that was because, and that the ANC was at war with the IFP?

MR MOTAHUNG: That is correct.

MR MHLABA: Can you explain to the Committee where was the IFP concentrated as opposed to the ANC supporters? That is maybe let me put a leading question to you, would you say that the IFP supporters and members were in the majority in the township or in the hostels?

MR MOTAHUNG: There are members of the IFP who were in the townships, but they were not exposing themselves that they were members of the IFP.

Their stronghold was in the hostel. In the location, in the townships, there are some members of IFP, although they did not expose their identity.

MR MHLABA: Before this incident, did you or any of your fellow members of the liberation movement, have certain dealings with either Patricia Mtshwene or Gladness Mfelasi?

MR MOTAHUNG: May you please repeat your question, I am not able to follow?

MR MHLABA: Before the day of this incident, can you explain whether Gladness Mfelasi and or Patricia Mtshwene had certain dealings with your political organisation, or within the political organisation?

MR MOTAHUNG: They had certain dealings. One I remember well, in funerals in 1992, funerals of the people who were killed by the hitsquads and those who were killed by the IFP, I used to see them during those funerals.

The person that I used to see at those funerals was Gladness Mfelasi.

MR MHLABA: Other than seeing them at the funerals, how did you come to know Patricia Mtshwene and Gladness Mfelasi, did you know them? Explain how you came to know each one of them.

My question was Mr Motahung, did you before this incident and except for seeing them at the funerals, did you know this Patricia Mtshwene and Gladness Mfelasi, and if that is the case, I want you to explain for how long did you know them, and how.

MR MOTAHUNG: I knew them. While I was still attending school, I used to see them during the athletics meetings at the stadium. That is when I was still at the secondary school.

MR MHLABA: Did anyone of them participate in any of the structures which you were an affiliate to?

MR MOTAHUNG: They never participated, they were just supporters, because I used to see them only at the ANC funerals.

MR MHLABA: Are you saying ANC funerals or IFP funerals?

MR MOTAHUNG: I used to see them at ANC funerals. I used to see them at funerals of the ANC members, and thereafter I saw them at the funeral of one of the members of the IFP.

MR MHLABA: Did Patricia and Gladness pose any threat to the well being of the political organisation which you were trying to further the objectives thereof?

MR MOTAHUNG: They never had any interference in our work.

MR MHLABA: Then why were they attacked Mr Motahung, can you just recap on that, because it is not very clear?

MR MOTAHUNG: Patricia Mtshwene and Gladness Mfelasi were members of the IFP, we saw them at the funeral of the IFP and we at the township were fighting against the IFP and these people of the IFP were attacking people and killing people in the township. That is when we realised that the people who were staying in the township, were giving information to other people in the hostel, who were members of the IFP.

That is why we took a decision that these people should be killed, because they were giving out the information to the people who were staying at the hostel. These were the people who were more dangerous because they would monitor our movements and give information to those who were living at the hostel.

ADV GCABASHE: Could I just ask Mr Motahung, did you have evidence that Patricia and Gladness were involved in those spying activities, that they were giving information to people at the hostel?

MR MOTAHUNG: We didn't have evidence to that effect, but our understanding was that the people who were staying in the township, were more dangerous than those in the hostel, because they were giving out information to the people at the hostel, and even the uncle of Mtshwene was also an Inkatha hitman and the other one who is deceased.

ADV GCABASHE: Thank you.

MR MOTAHUNG: All right.

MR MHLABA: Thank you Mr Chairman, I've got no further questions.


CHAIRPERSON: Questions Adv Steenkamp?

CROSS-EXAMINATION BY ADV STEENKAMP: Thank you Mr Chairman, I've got just two or three questions.

On behalf of the family, they would like to know why was it necessary for you to shoot an unarmed woman, who never as far as they are concerned, were never a member of the IFP? She was never active in any political organisation or any political dealings in the township. Why was it necessary for you to kill her, to shoot her?

MR MOTAHUNG: Patricia Mtshwene and Gladness Mfelasi, Gugu Mtshwene, Moses Mtshwene, all those people I have counted were living in the township, I know them very well.

Like I have already explained, I used to see them at the athletic meetings at the stadium. They were involved in politics. If I remember well, even Gugu Mtshwene, it happened that one day he was involved in an attack with other members of the IFP from the hostel, and that is when we realised that these people who lives in the township, were members of the IFP, were dangerous because they were giving out the information. Therefore we have to attack them.

That is the reason why I shot them. That is Gladness Mfelasi and Patricia Mtshwene.

ADV STEENKAMP: Then they would also like to know if it was ANC policy to just go and kill other people who happen to be not in the same political belief or party as yourself?

MR MOTAHUNG: Can you please repeat your question again?

ADV STEENKAMP: I will do so.

MR MOTAHUNG: I have a problem with this device, because sometimes it cuts.

Yes, you may proceed.

ADV STEENKAMP: Thank you sir. The question I would just like to pose again to you, the family would like to know if it was ANC policy just to kill people who happen to be not of the same political orientation as yourself or not to be a member of the same political party as yourself? Was it policy just to kill those people?

MR MOTAHUNG: No, it was not the ANC policy, but if you remember well, the training that I received, the MK policy says that when you are a guerilla or a soldier of MK, in some cases you have to use your own discretion and take your own initiatives. I was not sent by the ANC to go and kill those people.

That was my own initiatives as a member of the ANC.

ADV STEENKAMP: Mr Chairman, I would like to ask permission to ask this next question, although the applicant is not applying for amnesty for this. He is referring on page 3 and as well as the evidence in chief, to another family member, Mr Moses Mtshwene.

My instructions are that I have to ask the applicant if he knows what happened to Mr Moses Mtshwene, who died ten days after the deceased, who is the victim in this matter, Patricia, if that could be allowed? Thank you Mr Chairman.

Sir, you referred to Mr Moses Mtshwene, that is also the son or the brother, I mean, of the deceased, Patricia, are you aware of this?

MR MOTAHUNG: That is correct.

ADV STEENKAMP: My information is that this person was killed ten days after his sister was killed. Do you have any information or do you know how he was killed and if possible, by whom?

MR MOTAHUNG: I don't know how he was killed or who killed him. The only thing that I know about Moses is that he was given a funeral by the IFP.

ADV STEENKAMP: Then lastly the family will deny that the deceased was ever a member of the ANC or ever partook then in any IFP political rallies whatsoever. Thank you Mr Chairman.


ADV GCABASHE: Mr Motahung, I understand you to say that Patricia and Gladness were shot at because you suspected them of informing the IFP of township ANC activities, yes, is that correct?

MR MOTAHUNG: That is correct.

ADV GCABASHE: Now, had you as the small grouping of SDU activists, taken a decision to deal with all informers or was this an isolated incident? I just want to understand that?

MR MOTAHUNG: We met sometimes and we discussed this. We discussed the issue of the attacks in the township and we were aware that they had information. When we were patrolling, they never came to the township, but the day when we do not patrol, they will come and attack.

That is when we decided that the people who belong to the IFP who lived in the township, were operating underground in the township, are the same people who were giving information to the people who were living at the hostel. That is what made us to shoot them. They were all members of IFP, all the people that I have mentioned, are all members of IFP. I do not doubt that.

ADV GCABASHE: Now, tell me, apart from Patricia and Gladness, as a group of SDU activists, did you also then shoot other people who were informing in the same manner? I just want to know if it was a consistent thing you were doing, or just this was the only time you had an opportunity. Just help me to understand that.

MR MOTAHUNG: After shooting these two people, we didn't continue killing people, because after this incident, we realised that the attacks were decreasing and the situation was not changing in the township. We decided that we were not longer going to continue because now the situation was now becoming normal.

ADV GCABASHE: How long after this incident were you arrested?

MR MOTAHUNG: This happened on the 16th, I was arrested in April. I am not quite sure whether it is on the 23rd or the 25th, but it is somewhere there.

I cannot remember clearly the exact date, but it is between the 20th onwards.

ADV GCABASHE: How did you come to be arrested?

MR MOTAHUNG: I was going around with some, a friend of mine called Sam, we were at Sebenza and the people stopped us and they got the bullets from me and they arrested me. They told me that they had been hunting down, looking after me. They took me to the police station. They beat me.

ADV GCABASHE: Thank you Mr Motahung, thank you Chair.

CHAIRPERSON: Thank you. Mr Mhlaba, re-examination?

MR MHLABA: No re-examination Mr Chairman, thank you.


CHAIRPERSON: Is that the case for the applicant?

MR MHLABA: Certainly Mr Chairman.

CHAIRPERSON: Any witnesses?

ADV STEENKAMP: No thank you Mr Chairman.

CHAIRPERSON: Would you please like to address us Mr Mhlaba?

MR MHLABA IN ARGUMENT: Thank you Mr Chairman. Mr Chairman, it is my submission that the applicant here has met the requirements for the granting of an amnesty.

The application form, I submit it is in order. I further submit that there was full disclosure on the part of the applicant.

I just want to deal with the aspect of political objective. Initially it was a little obscure where the political motive was, but it became apparent that in view of the fact that the African National Congress was at war with the IFP in the East Rand then, anybody who was seen to be associated with the IFP, was regarded as frustrating the objectives of the ANC.

It is on that basis that this applicant committed these offences. I will further wish to draw the Committee's attention to the fact that I submit, the meaning of the wording of the Act, suggests that the test which needs to be used, it is a subjective one as opposed to an objective one.

Objectively it may appear that there was no motive, whereas on the part of the applicant here, he believed that this person was an enemy of the ANC, and it may further Mr Chairman, transpire that the victims were not members of the IFP or supporters thereof at all, but in his heart of hearts, he believed that they were supporters and sympathizers of the IFP and therefore a stumbling block to the objectives which the ANC sought to achieve.

It is on those basis Mr Chairman, that I submit that he has met the requirements of the granting of amnesty and accordingly request that it be granted to him. Thank you Mr Chairman.

ADV GCABASHE: Mr Mhlaba, can you just address the question of proportionality in these circumstances, considering the evidence that was available to the applicant at that time. Was this a proportionate act or was it, what would you relate that proportionality to, the circumstances of the time. Please address us on that.

MR MHLABA: Thank you Mr Chairman. It is not the case of the applicant that there was proportionality there, but Mr Chairman, I will want to submit on behalf of the applicant, that this information gathering process, was not as transparent as it is in these days.

On mere suspicion, on a rumour circulating, the applicant has acted and if such rumours circulated Mr Chairman, that the deceased and the other victim, passed information over to the IFP, it could not be easily ignored.

To stop them from passing such information, the applicant viewed it to be necessary to kill them.

CHAIRPERSON: Should we judge the question of proportionality in view of the overall situation, where numbers of people were killed in this conflict and not necessarily limit it to the circumstances of this particular incident where these two persons got killed?

MR MHLABA: That is correct. It is my submission Mr Chairman, that the passing over of information from one camp to the other, may by its very nature, look trivial, but the consequences thereof, may result in what the applicant was fearing, that the Inkatha was going to attack the ANC supporters in the township.

I would submit that this piece of information or this conduct of passing over of information from one camp to the other, should be viewed in a very, in a trivial way. It is very substantial, and I will further submit that I see some degree of proportionality to the subsequent conduct of the applicant here.

CHAIRPERSON: In other words if subsequent to this particular attack, the overall attacks had diminished as the applicant had indicated, that it be a relevant consideration in weighing up the question of proportionality? If the one incident leads to stopping a much larger number of incidents, then that would be something that one should take into account when looking at the proportionality in these circumstances? Is that your submission?

MR MHLABA: That is my submission Mr Chairman.

CHAIRPERSON: Just one other issue which we had raised, one legal point. Is the position not such that the applicant has to show that he acted in good faith, he acted bona fide in what he did, so that what we have to do is to look at what was available to him, look at the situation that prevailed, look at how that information impacted upon the applicant in his, in that particular context and then to consider the question whether under all those circumstances, the conclusions which he had drawn, were bona fide in good faith or not, so that you take into account not only objective, or not only subjective, but both. You look at the overall situation, you look at his state of mind, you look at the circumstances which applied, you look at the rumour, you look at the information which is available to him, his belief that the brother was an IFP hitman and that sort of thing?

So that what we have here is not as in the normal legal situation, as we know it, a cut and dried, either objective of subjective test, but that it is rather a combination of looking at everything, trying to come to a fair decision in all the circumstances of the case?

MR MHLABA: I will definitely agree with the Chair and add that the bona fides of the applicant here are certainly not in doubt.

This is displayed in the manner in which he has articulated the event, and the full disclosure which he has effected before the Committee.

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

MR MHLABA: No, thank you Mr Chairman, I have not any.

CHAIRPERSON: Thank you. Adv Steenkamp, any address?

ADV STEENKAMP IN ARGUMENT: Mr Chairman, just one or two things. Although the victims are in principle not opposing the application, it is still the view of the victims, the family at least, that the applicant must carry the onus of at least convincing the Committee that he was able to meet all the requirements of the Act.

It is the view of the family at least, that the act of the applicant was clearly not done with any political motive whatsoever, he was a trained soldier. In the circumstances, he attacked a person on his own account, he wasn't really quite sure whether or not she was active in any political actions whatsoever.

Furthermore, it is also the view of the family that the act of the applicant was not proportionate to the political objective sought and therefore he is not meeting all the requirements of the Act as stipulated, he could not discharge the onus as placed upon him by the Act, and his application must therefore fail.

As you wish Mr Chairman, thank you.

CHAIRPERSON: Is it common cause that there was this conflict which the applicant referred to between the ANC and the IFP in that particular area?

ADV STEENKAMP: Yes Mr Chairman, that can be taken as common cause. Thank you Mr Chairman.

CHAIRPERSON: Mr Mhlaba, do you wish to add anything further?

MR MHLABA: I've got nothing to add Mr Chairman, thank you.

CHAIRPERSON: Thank you. Well, that concludes the testimony and the arguments in this matter.

Again, we would need some time to formulate a decision and again we will communicate that decision to the parties once it is available. Can we use the opportunity to thank the family for having attended the proceedings. We hope having been given a better insight into the particular incident in question.

Of course we are indebted to your assistance Mr Mhlaba in this matter.

The decision of the panel is then reserved in this matter and will be made available in due course.

ADV STEENKAMP: As you wish Mr Chairman, thank you.

CHAIRPERSON: Now, it is late in the day. I know that you had one matter which seems to have been a formality.

ADV STEENKAMP: Mr Chairman, I would suggest if you would allow me, that I rather deal with this matter early tomorrow morning, I can confirm certain documentation I am waiting for, and I think it is an appropriate time now rather, to deal with this matter tomorrow morning.

That will be the role for today and if I may take the opportunity Mr Chairman, on behalf of the victims and the family in all the cases today, to thank you yourself and the Honourable Committee members, the families are indebted to you. Thank you Mr Chairman.

CHAIRPERSON: Thank you. Then just one final issue, I know that Mr Mhlaba is also appearing for the applicants in one of the matters which remain on the role and from what has been brought to my attention, there is not altogether clarity around the fate of those applications.

I sincerely hope that you would be in a position to advise us tomorrow what the situation is with that remaining matter as well so that we are able to at least plan the rest of our session here.

We will now adjourn and reconvene tomorrow morning at 9 o'clock. We are adjourned.