DAY : 2


CHAIRPERSON: ...(inaudible)

MR SAMUELS: Thank you. I call Duma Nkosi.

CHAIRPERSON: Before we get there, where is the list of people whose applications are going to be withdrawn and the list of applicants whose applications are going to be referred for chamber attention?

MR SAMUELS: Yes, I don't have it with me, my instructing attorney has just taken it out. There is a list. Currently there are 14 people on that list. That number will increase. Already I can tell you there will be three more people on that list and in addition that list will increase even further because that list so far of 17 people refers to volume two of the bundle. There is also volume three, where in addition there will definitely be people withdrawn. I will hand it up. I can assure you there is a list and it is increasing in number.

CHAIRPERSON: And the other list?

MR SAMUELS: Sorry, which others?

CHAIRPERSON: The one's whose applications are going to be referred for chamber attention.

MR SAMUELS: For chamber, yes, I will also have that available.

CHAIRPERSON: But Mr Samuels, you made a promise yesterday already, you told us that you'd have that ready today. Yesterday you said so.

MR SAMUELS: Oh, I will.

CHAIRPERSON: Now where would we find this applicant's application?

MR SAMUELS: Volume two. His number is 7269/97.

MS PATEL: It's on page 62.

CHAIRPERSON: For what events or offences is this applicant ...(intervention)

MR SAMUELS: Yes, that will be my first issue that I will discuss.

CHAIRPERSON: Ja, well let's hear what it is first. No, I want to hear from you what offences is he applying for.

MR SAMUELS: He's applying for offences where he gave instructions to members of the SDU to - sorry, may I throw this phone away?

CHAIRPERSON: You can do what you want with it.

MR SAMUELS: Thank you, Sir.

MR SAMUELS: For example, the instructions which he gave to the previous, Chechele, to defend the neighbourhood in which they lived.

CHAIRPERSON: Is that a crime?

MR SAMUELS: In which people were shot?

CHAIRPERSON: Is that a crime? If they acted in self defence, albeit using a firearm, is that per se a crime?

MR SAMUELS: No, self defence is not a crime.

CHAIRPERSON: Well, that is exactly what I'm asking.

MR SAMUELS: May I have leave to have Mr Nkosi address you on that point?

CHAIRPERSON: On what point?

MR SAMUELS: On the question of this specific ...(intervention)

CHAIRPERSON: Mr Samuels we've been going through this, and I want to repeat myself. The Act to which we are bound makes provision for the granting of amnesty, in fact in encourages the granting of amnesty for specific crimes committed with a political motive and amnesty shall be granted in those circumstances, provided full disclosure is made.

No we've got to cross the first hurdle. It's pointless us listening to an applicant if he's committed no crime. Hence in the application here there is no hint of this applicant making or committing a crime, be it political or otherwise.

All I'm asking here is whether this applicant committed a crime and if so, what crime.


CHAIRPERSON: And I'm asking you as a trained lawyer.

ADV DE JAGER: If I could add something there. He says:

"Co-ordinated armed individuals into units, sections, with the commanders from Thokoza and Polla Park, under the agreed code of conduct."

The code of conduct makes it very clear that if they act according to the code of conduct, they can't commit a crime because the code of conduct only makes provision for self defence, but if they have exceeded then they are committing in all probability a crime, if they did not act according to the code of conduct.

Now if you say they've acted contrarily or overstepped the code of conduct in certain events, then it could perhaps fall under the act. But according to the statement here they acted according to the code of conduct, and as far as I can see it, the code of conduct was framed in such a way that it wouldn't allow a crime to be committed I think.

MR SAMUELS: May I have leave again, that Mr Nkosi explains these specific acts that he wishes to, to determine whether he does qualify to apply for amnesty, the issue of whether the acts were specific or not? May I have leave that he argue or present some point on that?

CHAIRPERSON: Mr Samuels, without wanting to sound facetious, I thought that was your job.


CHAIRPERSON: I would have thought that was your job, to explain to us whether the man is entitled to make the application and therefore I ask you, in terms of the instructions, whether in your view he has committed a crime and therefore sets him in this arena.

MR SAMUELS: ...(inaudible)

CHAIRPERSON: Mr Samuels, if you look at page 63 of volume two, paragraph 9, the whole of it, that was supposed to have formed the background of the application for this applicant. He could supplement it with specifics but as I read it, and I gain the impression that my colleagues or of a similar view, that this as contained in the application itself discloses no crime.

Now it is pointless to hear this applicant when in fact he didn't commit a crime, and we are bound largely to his application. Now I'd like you to address us on that.


MR SAMUELS ADDRESSES COMMITTEE: Thank you for the indulgence. It is my instructions that two courses of action may occur. If this - we wish to argue that the acts for which the applicant will apply for, are cases where instructions, orders were given to defend the neighbourhood and the applicant is aware of situations where members of the SDU didn't follow completely those instructions.

However, the argument being presented is not as simple as to say it is only people who acted outside the code of conduct therefore committed an act which is liable for amnesty, that the code of conduct, while the words code of conduct suggest a strong and finite, defined set of principles to act by, in the situation it wasn't a proper military operation and therefore the code of conduct is not as simple as; did a person act in or outside that code of conduct. And that is why the application for amnesty is in part general in sense that one cannot specifically say yes, it was out of the bounds of the code of conduct. That is why I wish to call this applicant and the two main issues, well apart from a brief background on history, the two main issues are the nature of general commands given and the fact that people did act outside those commands. However, because of the situation of those code of conduct, it is not as simple as just to say yes, they acted outside that code and therefore ..(intervention)

ADV MOTATA: Just there, Mr Samuels, let's take this situation at the end of the day. We say Mr Nkosi, we accept the political situation in Thokoza, we feel you acted correctly and then we say we want to grant you amnesty, in respect of which acts would we grant him amnesty? Would we say in general you've got amnesty, would we say that?


CHAIRPERSON: Now that is precisely what we are asking. If we are of the view that amnesty should be granted at the end of the day, must we grant it in respect of assault, murder, attempted murder, rape, whatever. That is what we are asking. Is this applicant one of those who falls in the category where specific crimes for which he applies can be identified? That is all I'm asking you. Has this never been done yet, Mr Samuels?

MR SAMUELS: I've tried, yes.

CHAIRPERSON: Now by now, either there is a crime that is identifiable or not.


MR SAMUELS: My instructions are to ask, if our logic which I tried to present ...(intervention)

CHAIRPERSON: That's debateable but anyhow.

MR SAMUELS: If my logic which I've tried to present, that this applicant should be heard on the basis which I've tried to argue and if this hearing feels that there is no substance to us bringing that application, may I ask that we still, I still wish to call this witness, call Mr Nkosi as a witness to explain two issues because it is important I submit: the question of the chain of command and what was the structure within the SDUs and how is it that people got instructions and what was the effect of the code of conduct.

CHAIRPERSON: I don't know if we made ourselves clear yesterday, but even before Mr Kassrils came to give evidence, we told you that we accept and we have been given written submissions, thick volumes at that, which includes the events and the structures in Thokoza and elsewhere in the country because Thokoza was not the only flash point in this country, and we accept that those phenomena existed.

We are of the view that no amount of evidence regarding the history of this issue is going to improve the matter.

ADV DE JAGER: Mr Samuels, if you have a look at Sections ...(intervention)

INTERPRETER: The speaker's mike is not on.

ADV DE JAGER: ...(inaudible) for a specified - we're entitled to grant amnesty for a specified offence according to Section 20(5) ...(intervention)

CHAIRPERSON: And in terms of the High Court judgment that we are saddled with.

ADV DE JAGER: Yes. They say we should give sufficient particulars about this offence, so that if he is being charged later they could say: "We could identify this offence. It's been committed in Thokoza in Khumalo Street on the 22nd of February 1990 and it related to the killing of people there, the murder of people or the killing of people, whatever you could call it.

It wouldn't then include an offence that's been committed in Buthelezi Street on another date and other victims being ... So that is the reason why the Act requires that we should be very specific about the amnesty we are granting, because otherwise it may turn out that we grant amnesty in respect of a murder of a personal enemy or whatever it may be. That is why we are asking, give us the particulars, are you asking for amnesty in connection with the funeral procession for instance?

Then we've got a further problem, and I think you should have a look at that too, we've got an application and it's long after the cut-off date. In this application no specific offence has been mentioned. We've been lenient about this and we've widely interpreted it and said: "Okay, give us particulars later, we're asking for particulars". But in this case I don't know whether particulars were asked for, but we received no further particulars about a specific act, and if we would grant amnesty and it's not mentioned in this application, this application as wide as those applications that the Supreme Court have set aside be amnesty granted.

So even if we would grant amnesty on this application, the result would be that it would be invalid, and that is why are attempting to get something from you so that we could, if we give amnesty it should be valid amnesty we're giving.

CHAIRPERSON: What's more, Mr Samuels, I find it strange that nobody can say: "I committed", or you can tell me: "My instructions are, ...(indistinct) committed the crime of attempted murder by common purpose or murder or assault or malicious injury to property or whatever. There is a distinct reluctance or inability to tell us or give us a simple answer to a simple question.

MR SAMUELS: Mr Chairperson, may I have leave to ask - or rather, can I ask that Mr Nkosi address the hearing on this specific issue only?

CHAIRPERSON: Are you not able to give us answers?

MR SAMUELS: No, I think Mr Nkosi may perhaps be able to explain.

ADV MOTATA: No, but is he going to tell us of specific incidents, because I am interested if you have regard to page 64, he says:

"Casualties were suffered"

Listen to this.

"Casualties were suffered and property were damaged."

Then they say:

"If so, state the names of the victims."

He says:

"Details and background are in the branch submission."

Does it help his case if he says that?

MR SAMUELS: No, he should be specific. I appreciate that.

CHAIRPERSON: Let me ask you, is he going to tell us that he committed a crime, in terms of criminal law?

MR SAMUELS: May I ask that Mr Nkosi have permission to address the hearing?

CHAIRPERSON: Mr Samuels, you are his representative, you undertook to represent him, you obviously, unless I'm drastically wrong, have consulted with him and you know more or less what his versions or what his version is. All we are asking from one officer of the law to another, is he likely to admit to committing a crime? If so, I will accept what you say and then we can carry on. If not, then you know what the position is.

MR SAMUELS: In the circumstances of our discussions, my instructions are to withdraw this application. And also, I had intended presenting some of the information if the hearing believes that those two issues that I mentioned, the question of the structure of the SDUs and what was the chain of command, if that evidence isn't required, I therefore will stand this matter down.

CHAIRPERSON: I told you that we'll give you an indication if we feel it's necessary, later.

MR SAMUELS: On that basis therefore, I will ask that this application be withdrawn ...(intervention)

CHAIRPERSON: On what basis?

MR SAMUELS: On the basis that there's no evidence to satisfy the requirement for amnesty.

CHAIRPERSON: Mr Samuels, can I just get some specifics here? Do I interpret that as that there cannot be any allegations to the commission of a crime as we know it?

MR SAMUELS: Sorry there cannot be allegations?

CHAIRPERSON: That there has been a commission on the part of this applicant, that a crime has been committed.


CHAIRPERSON: Yes, thank you.







DAY : 2


MR SAMUELS: Mr Makanjee will deal with the next applicant.

MR MAKANJEE: Mr Chairperson, the next applicant is Themba Richard Xaba.


MS PATEL: ...(inaudible) I'll just double-check that. Yes, they were sent.

CHAIRPERSON: Any receipt?

MS PATEL: No, there were no further particulars received in respect of this particular applicant. If I may just place on record, the last meeting that our offices had with the ANC TRD(?) desk was in August and at which an undertaken was given that better attention would be given to all these applications. I unfortunately can take it no further than that.

ADV DE JAGER: Haven't ...(indistinct) the copy of the particulars that has been asked?

MS PATEL: I see the Evidence Analyst has left the venue. She would have that with her.

ADV DE JAGER: ...(inaudible) just for the purposes of the record to have a copy handed in so that we could deal with ...


CHAIRPERSON: Mr Makanjee, tell me, we seem to have a recurring problem here. In the application to be found and starting on page 69 of volume two, there seems to be no hint even that this applicant had committed a specific crime.

MR MAKANJEE: That is correct, Mr Chairperson.

CHAIRPERSON: Well what is the position?

MR MAKANJEE: I do understand that according to my instructions from the applicant, that there is a specific crime that he wishes to apply for amnesty for. Thank you, Mr Chairman.

CHAIRPERSON: Are you satisfied that that application will be in order?

MR MAKANJEE: I am, Mr Chairperson.

ADV DE JAGER: You see, I think you should address us at the end of the day, whether in fact if an application was submitted like this without reference to a specific offence, and the TRC have requested further particulars and no particulars have been supplied, whether in fact this is an application that can be dealt with in terms of the Act.

CHAIRPERSON: At the end of the trial when the time comes to argue, you can deal with that matter. In the meantime we will hear the evidence, but I agree with what my colleague has said, that at the end of the day you may not persuade us that this is a proper application and in which case it will be refused. But in the meantime we will go through the evidence and we await your argument at the end of the hearing.

MR MAKANJEE: Mr Chairperson, can I get a quick instruction on that from the applicant, just on that aspect of what you've just put to us? Just to be certain that the applicant is ...


MR XABA: ... what I'm saying.

CHAIRPERSON: You can get instructions, I don't know what.


MR MAKANJEE: Mr Chairperson, the applicant is prepared to continue.

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

MR XABA: Zulu.

CHAIRPERSON: Have you any objections to the taking of the oath? Will you please stand.

THEMBA RICHARD XABA: (sworn states)

EXAMINATION BY MR MAKANJEE: Thank you, Mr Chairperson.

Would you state your name for the record please?

MR XABA: My name is Themba Richard Xaba.

INTERPRETER: It looks like the witness is listening to channel 2 instead of channel 4.

MR MAKANJEE: Do you belong to any political party?


MR MAKANJEE: What is the name of the political party that you belong to?

MR XABA: ANC and the Communist Party and Umkhonto weSizwe.

MR MAKANJEE: You've applied for amnesty in this matter, what is the specific incident that you wish to apply for?

MR XABA: The Thokoza incident where Councillor's Msizi's house was burnt down and Councillor Sibeko.

CHAIRPERSON: Was that - any injury suffered or death?

MR MAKANJEE: According to my instructions there were people at the scene at the time that the applicant and his colleagues burnt the property. They ran away after that and they are not sure of what transpired after that. They do know that the house was burnt down.

CHAIRPERSON: Mr Makanjee, now we've started something and - what crime is he going to apply for amnesty, murder?

MR MAKANJEE: Attempted murder.

ADV DE JAGER: Is he applying for arson?

MR MAKANJEE: He would like to apply for arson as well but ...


MR MAKANJEE: Were there any other members of your organisation with you?

MR XABA: Yes, there were some other members.

MR MAKANJEE: Who were the members that were with you?

MR XABA: One of them passed away, it's Bafana Baloi and Lucky Dlamini, Jack Majego.

MR MAKANJEE: Can you tell me why you attacked, why you burnt the premises of Councillor Msizi?

MR XABA: The reason for that, the Councillors at the time were harassing the community. They first burnt down our houses just before we attacked them.

ADV DE JAGER: Sorry to interrupt you. That is why we've got a problem now because for the first time there is a victim whose house has been burnt down, there was an attempted murder according to the application, on this person. We're obliged in terms of Section 29, to give notice to those victims. They're entitled to legal representatives here. Particulars have been asked. In order to enable us to do that, I don't know whether this Councillor or his family has been given notice, we didn't know of him.

MS PATEL: Honourable Chairperson, sorry, if I may interject at this point. Is the Councillor Msizi that the applicant is referring to, Abraham Msizi?

MR XABA: Yes, it's Abraham Msizi?

MS PATEL: If it is then he is definitely going to want to oppose this application. I've received a letter from him this morning in that regard. It's framed in quite general terms but the gist of the letter is that if there are specific victims that are going to be mentioned, they would, the IFP would want to oppose.


CHAIRPERSON: ... deal with all his evidence first before we take a decision on that. I mean I'm talking about his evidence-in-chief.

MR MAKANJEE: Who gave the order to yourself to ...(intervention)

CHAIRPERSON: ...(inaudible) didn't say that he did it as a result of an order.

MR MAKANJEE: Were you acting under anybody's orders, or why did you do this?

MR XABA: No-one instructed us, we just took the decision because the people were suffering and we just decided to do that. We were taking initiatives to protect ourselves.

MR MAKANJEE: Amongst yourself and the two other gentlemen that you mentioned, was anybody a leader of the section as such?

MR XABA: I was a leader.

MR MAKANJEE: Is there any other incident that you wish to speak about?


ADV DE JAGER: ...(inaudible) this incident and where was it?

MR XABA: It took place in Thokoza. Msizi was staying at Mandesa Street that is called Mlangeni section. That was in 1990.

ADV DE JAGER: Can you give us a month in 1990?

MR XABA: It was February 1990, but I can't remember the exact date.


CHAIRPERSON: ...(inaudible) Mr Msizi easily available?

MS PATEL: I have a phone number for him. If you would grant me a few minutes I would try and contact him. I also know that they do have an attorney who is employed on a retainer basis and chances are great that they would want her to come and appear for them. I'm not sure ...(intervention)

CHAIRPERSON: Well let's see what arrangements can be made and come and inform me when you're ready. We'll adjourn. I want to see counsel please.