CHAIRPERSON: Are we ready to proceed?

MR DEHAL: Judge, insofar as I'm concerned, yes indeed but for the heat I'm ready.

MR PANDAY: I'm also ready Chairperson.

Thank you Chairperson. Chairperson, we've now finally located Alzina Luthuli and the victims would like to call Alzina Luthuli.

JUDGE DE JAGER: Could you arrange for her to sit somewhere so she could give evidence?

MR PANDAY: I believe yesterday that the applicants placed the previous witness.

JUDGE DE JAGER: Where is she?

MR PANDAY: Alzina Luthuli, she's in the gallery.

CHAIRPERSON: Doesn't the other microphone work?

MR SIBANYONI: It does Judge but for the purposes of the camera that position is the only position.

JUDGE DE JAGER: I really think it's not a good arrangement for a witness of a victim to sit between the legal representatives of the applicant.

CHAIRPERSON: I think it's bad luck for the camera but I think she would be more at ease if she sat over there and the applicant can come back and sit next to his attorney.

JUDGE DE JAGER: Or otherwise the applicant's attorney should kindly move to another table.

CHAIRPERSON: It seems to me it would be perfectly possible to move the desk at which the applicant's attorney is sitting to adjoin that other desk so they have sufficient room for the applicant, legal advisors and the applicant and then we would have one desk over here where the witness or any other future witnesses can sit. Is it possible, could it be done immediately?

What language would you be speaking in?

INTERPRETER: I think it's Zulu.

ALZINA MKAZA LUTHULI: (sworn states)

EXAMINATION BY MR PANDAY: Ms Luthuli, how old you at present?

MS LUTHULI: I'm 25 years old.

MR PANDAY: And where are you currently residing?

MS LUTHULI: At Umlazi.

MR PANDAY: Now on the 1st January 1992 where were you residing?

MS LUTHULI: I resided at Umkababa in the Dlanzini district.

MR PANDAY: And tell me do you know Mfanafuti Mbukazi?


MR PANDAY: Who was he to you?

MS LUTHULI: He is the father of my child.

MR PANDAY: And in particular in 1992 were you going out with him, or his girlfriend?

MS LUTHULI: Yes I was his girlfriend.

MR PANDAY: Now just before we go any further, you mentioned that he is the father of your child. How old is your child at present?

MS LUTHULI: The child is eight years old.

MR PANDAY: Now tell me, on the 1st January 1992 were you in the company of Mbukazi?

MS LUTHULI: Yes I was.

MR PANDAY: Now I'd like you to tell the Committee, on the 1st January 1992 what took place while you were in the company of Mbukazi?

MS LUTHULI: On that day we left my home for the market. Mr Mbukazi accompanied me to the market and we met Lee and Luazi on the way who passed us. Gebu came following the two persons. My boyfriend then turned and went to these persons and on their return they immediately started assaulting him. When they did that I was standing by because there was nothing I could do. They fought up and till they overpowered him at which point Kwazi produced a knife, gave it to Gebu who stabbed him. After the first stab wound I ran away, fled to the market and from there I tried to get into a taxi to go report the matter to his home. Whilst I was still waiting there ...(intervention)

JUDGE DE JAGER: Can you go a little bit slower? Could you ask her to go a little bit slower, we've got to write down the things.

MR PANDAY: What happened on the day in question? Take your time, go through it slowly because everyone needs to write down what happened on the day. Now you ...(intervention)

INTERPRETER: The speaker's mike is not on.

JUDGE DE JAGER: Who gave the knife to another person, the names, I've missed the names, before the stabbing started?

MS LUTHULI: Kwazi produced the knife.

MR PANDAY: Kwazi, are you talking about Kwazi Mbambo?

MS LUTHULI: Yes that is correct.

MR PANDAY: Right, now you mentioned Kwazi Mbambo gave the knife to who?

MS LUTHULI: He gave it to Gebu.

MR PANDAY: Right, now who else was with Gebu and Kwazi?

MS LUTHULI: It was Lee.

MR PANDAY: What was the full name of Lee?

MS LUTHULI: I know him as Lee, his surname was Msomi.

MR PANDAY: Right now after Kwazi gave the knife to Gebu what happened thereafter?

MS LUTHULI: He was then stabbed.

MR PANDAY: ...(inaudible)


MR PANDAY: Now this stabbing incident in which area did it take place?

MS LUTHULI: It was at Zanzini at Umkababa.

MR PANDAY: And due you recall any particular place, what area?

MS LUTHULI: Please repeat that question?

MR PANDAY: You said the stabbing took place in Zanzina in Umkababa. Can you recall near any specific spot where this incident took place?

MS LUTHULI: It was on the road after you just passed Umkababa school.

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

MS LUTHULI: Umkababa, Umkababa City School.

MR PANDAY: Now do you recall any ...(intervention)

JUDGE DE JAGER: Do you know the - where's the - do you know the Power School?

MS LUTHULI: Yes, that is not a school but it is close to Umkababa City School. It is a power plant or power station.

JUDGE DE JAGER: So it's the same school that's sometimes been referred to as the Power School?

MS LUTHULI: Yes, that's because the power station is close to the school.

MR PANDAY: Now after the stabbing took place near the school what did you do thereafter?

MS LUTHULI: I then ran away, headed for the market and on my arrival there I left my key with a certain lady. I returned to the road looking for a taxi to take to Mfanafuti's home. Before I could board a taxi Mbambo approached and he had Mfanafuti in his vehicle and that is when they also took me to the hospital.

MR PANDAY: Mbambo approached? You say Mbambo approached?

MS LUTHULI: He was the owner of the vehicle that was transporting him.

MR PANDAY: That's not the same as Kwazi Mbambo?

MS LUTHULI: No, he is Kwazi's father.

MR PANDAY: Now the applicant Ngubane, Gebu, Ngubane testified that Mbukazi together with six or seven other people had attacked him. Would you be able to comment on his version?

MS LUTHULI: I dispute that, he is lying.

CHAIRPERSON: Did he have a gun of any sort with him?

MS LUTHULI: No he did not, he did not own a gun.

MR PANDAY: Mr Ngubane, Gebu Ngubane, also testified ...(intervention)

JUDGE DE JAGER: Would you perhaps refer to him as the applicant and to the deceased as the deceased, if you could follow that because that would make it much easier?

MR PANDAY: Yes Mr Chairperson.

Alzina, you know that Gebu is the applicant in this matter?

MS LUTHULI: Yes I heard.

MR PANDAY: If I refer to him as the applicant you will know I am talking about him, right? Now the applicant also testified that the deceased had attacked them in the Dangane area, I may have pronounced it a little bit wrongly. Would he be correct in that version of his?

MS LUTHULI: He is lying.

MR PANDAY: Tell me did you give evidence in court?

MS LUTHULI: Yes I did.

MR PANDAY: And the evidence that you give here today, was it the same evidence that you gave in court?

MS LUTHULI: That is correct.

MR PANDAY: Now Alzina, just one more question. Do you know if the deceased was a member of the IFP or not?

MS LUTHULI: I do not bear that knowledge.

MR PANDAY: And where was he residing at the time?

MS LUTHULI: He resided at Clermont but at the time he was visiting home at Umkababa.

MR PANDAY: And with who did he live at Umkababa?

MS LUTHULI: With his family.

MR PANDAY: ...(inaudible)

MS LUTHULI: At Zanzini.

MR PANDAY: Thank you Chairperson.


CROSS-EXAMINATION BY MR DEHAL: Thank you Mr Chairperson.

Ms Luthuli, sorry, this child of yours what was the date of birth of this child?

MS LUTHULI: On the 1st July 1991.

MR DEHAL: And where is the child at the moment?

MS LUTHULI: He stays with us, with me.

MR DEHAL: Would that be the same place where you stayed - sorry, would that be the same place as the home of the deceased in this area we talk of in Umkababa?

MS LUTHULI: Yes that's where he resided at my home.

MR DEHAL: Now is the child there now and are you living there now?

MS LUTHULI: The child is at Umkababa.

MR DEHAL: This home in Umkababa where the child lives is this the same whom where Mr Mbukazi's brother lives? Elder brother, sorry I'll get the name for you just now.

MS LUTHULI: No the child stays at my home.

MR DEHAL: Where is that?

MS LUTHULI: It's in the Zanzini district in Umkababa.

MR DEHAL: And how far is that from Frederick Mbukazi's home in Umkababa?

MS LUTHULI: It's not very far.

MR DEHAL: Is it walking distance?

MS LUTHULI: Yes it is.

MR DEHAL: And does Frederick Mbukazi, the elder brother of your deceased boyfriend, see this child regularly?

MS LUTHULI: Yes sometimes the child visits them.

MR DEHAL: Do you know when last the child and Frederick Mbukazi have seen each other?

MS LUTHULI: I will say it's been a while.

MR DEHAL: What do you mean by that, how long, a few days, a few weeks, a few months or years?

MS LUTHULI: If I'm not mistaken it may be two or three months.

MR DEHAL: Do I understand your evidence that apart from this two or three months Frederick Mbukazi regularly visits the child and the child on occasions visits Frederick Mbukazi and his family particularly because they live so close to each other, would that be correct?

MS LUTHULI: Well where Mr Frederick stays it's a bit far from my home so the child only visits during school holidays.

MR DEHAL: I thought you just now said that where Frederick Mbukazi stays and where you stay with the child is in fact fairly close, you pitched it at being at close walking distance and now you say it's far?

CHAIRPERSON: I don't think she said a close walking distance, she said it was within walking distance, it was not far away.

MR DEHAL: Indeed yes, whereas now you say it is far?

MS LUTHULI: When they moved from where they were residing before and therefore Umlazi and we remained at ...(indistinct).

MR DEHAL: Yes but we're talking of the house that Frederick

Mbukazi lives in Umkababa and the place you live in in Umkababa? You now say it's far, they are far from each other whereas earlier you didn't say they were far from each other?

Do you want to clarify that?

MS LUTHULI: They now reside at a place which is a bit far from my home.

MR DEHAL: And where is that?

MS LUTHULI: At Umlazi.

MR DEHAL: So Umlazi is very far from Umkababa, you've got to travel by transport to get there, you cannot even walk there, correct?

MS LUTHULI: That is correct.

CHAIRPERSON: We are talking about a killing that took place in 1992. What is the relevance of visiting in 1999?

MR DEHAL: It reflects adversely, Mr Chairperson, on the credibility of the previous witness who premised his version on the basis that he did not know well the age of this child for he hardly ever sees the child. His version is the child lived far from where he presently lives. He also said that he had not seen the child for many years and therefore the variants from two years to eights years to ten years was explained. This evidence is elicited to show ...(intervention)

CHAIRPERSON: It is clear that his estimated the age of the child was totally wrong, isn't it? The father of the child died in 1992?

MR DEHAL: Indeed but apart from that, Chairperson, it reflects adversely on his testimony and that is what I would argue later. I'm simply eliciting this evidence to support that submission. The point's made, thank you.

Do you know a person known as Tandakile Guzane?

MS LUTHULI: No I do not.

MR DEHAL: Was Mr Guzane never at the scene when your boyfriend, the deceased, came to be killed?

MS LUTHULI: It was Gebu Guzane who was present.

MR DEHAL: You say it was Gebu Guzane, Kwazi Mbambo and Lee Nsomi, correct?


MR DEHAL: So what did Guzane ...(intervention)

MS LUTHULI: That is correct.

MR DEHAL: Sorry, what did Guzane do on that day to the deceased?

MS LUTHULI: He stabbed him.

MR SIBANYONI: Sorry, is Guzane and Gebu the same person?


MR DEHAL: Mr Chairperson, may I just take instructions on this quickly? There's no need for an adjournment. Thank you.

Thank you, I'm indebted to you Mr Chairperson.

The Tandakile Guzane that I referred to is a female, the applicant's sister, do you know her?

MS LUTHULI: No I do not.

MR DEHAL: Was she not at the scene when the deceased was stabbed to death?

MS LUTHULI: No she was not present.

MR DEHAL: You see, my instructions are from the applicant that you did testify in the trial in which he was charged with murder and your evidence was to the effect that there were four persons at least including the applicant who attacked the deceased and that these four persons were the applicant, Lee Nsomi, also known as Isaac Nsomi, Kwazi Mbambo and the applicant's sister, Tandakile Guzane. Now would you dispute having said that in court?

MS LUTHULI: I do dispute it.

MR DEHAL: And of course you say you don't even know this Tandakile Guzane?

MS LUTHULI: Yes I maintain that.

MR DEHAL: Do you know the Ultra City in the vicinity of Umkababa?


MR DEHAL: Where is the market in relation to the Ultra City?

MS LUTHULI: It's very close to the Ultra City.

MR DEHAL: So after the deceased was stabbed did you go to Ultra City or did you go to the market as you say to leave your keys with this lady?

MS LUTHULI: I left the key at the market at the old market at Umkababa.

MR DEHAL: And did you ever get to the Ultra City or did you not?

MS LUTHULI: I did go to the Ultra City. I had assumed that my sister would be there but she was not so I had to go back to the road and wait for a taxi.

MR DEHAL: Sorry, so the purpose in your going to the Ultra City was to look for your sister?

MS LUTHULI: That is correct.

MR DEHAL: Not to call for the police?


MR DEHAL: In your statement in paragraph 4, the first sentence says:

"After they had stabbed him I ran to Ultra City to call the police for help"

Why do you say that there?

MS LUTHULI: I went to the Ultra City to search for my sister. The thought did occur to me to call the police but there was a long queue at the telephones and when I didn't find my sister I decided it would be better to go to his home to report the matter.

MR DEHAL: When I just now asked you - when I just now made the proposition to you that you did not go to Ultra City to call the police you agreed with that. Why didn't you say yes you went, you looked at this long queue and you abandoned the idea?

CHAIRPERSON: Hasn't she just said she went to look for her sister but the idea did occur to her of calling the police but she looked at the long queue and decided against it. She did not say that she went to Ultra City to call the police, she repeated what she had said earlier and that she went there to look for her sister, isn't that so?

MR DEHAL: Indeed.

CHAIRPERSON: Well then you cannot put to her something she hasn't said?

MR DEHAL: The only distinction I'm drawing Mr Chairperson, if you'll allow me, is this that if the thought occurred to her at the Ultra City to call for the police or to join the queue and that's the distinction she drew earlier, namely that when she got to Ultra City it was principally for her sister and my question is why didn't you mention earlier that you had the idea to call for the police?

CHAIRPERSON: You didn't you said "why didn't you mention earlier that you went to Ultra City to call for the police?" She still said she went to Ultra City to look for her sister, hasn't she?


CHAIRPERSON: She's not changed it.


CHAIRPERSON: She said while there it occurred to her to call the police?

MR DEHAL: Perhaps I should change that question then. Thank you.

When I referred earlier to your statement, paragraph 4, the first sentence, relating to your having gone to Ultra City to call for the police, why did you not say in addition to just saying "no, I didn't go there to call for the police", why didn't you say "yes, the thought did occur to me when I was there" as you now say?

MS LUTHULI: I went to the Ultra City merely because I wanted to contact my sister even though the thought occurred in my mind but the queue was too long for me to entertain that. I decided to go back.

MR DEHAL: Where was the deceased on the night of the 31st December, do you know? 1991 that is, the night before the death?

MS LUTHULI: We were at my home at Luthuli's place.

MR DEHAL: Did you both spend the night together?

MS LUTHULI: Yes we did.

MR DEHAL: And on the morning of the 1st January did you go back to the Mbukazi home before you embarked on the journey to the market?

MS LUTHULI: We left at home together. He went first to his home, he chatted with the kids and then afterwards he came and join me to proceed to the market.

MR DEHAL: At what time in the day would that have been?

MS LUTHULI: It was in the morning even though I don't remember the time. I was going to the market to sell my product.

MR DEHAL: Can you tell whether on that morning the deceased had met his brother Frederick Mbukazi before both him and you left to go to the market or do you not know?

MS LUTHULI: I do not know.

MR DEHAL: Did you meet Frederick Mbukazi the morning of that day before you embarked on the journey to the market for the deceased?

MS LUTHULI: No we didn't.

MR DEHAL: Do you belong to any political organisation? Sorry, did you at the deceased was killed?


MR DEHAL: Do you accept that the area you lived in was an IFP area?

MS LUTHULI: Yes I do agree, it was IFP mostly.

MR DEHAL: Do you accept that the area that the applicant lived in was mostly an ANC area or predominantly an ANC area?

MS LUTHULI: Yes I do agree.

MR DEHAL: At the time the deceased was killed did you know that the applicant was an ANC supporter?

MS LUTHULI: No, I don't have that knowledge.

MR DEHAL: And at the time the deceased was killed did you know that the deceased was an IFP supporter?

MS LUTHULI: No I do not have that knowledge either.

MR DEHAL: If it is suggested to you on instructions from the applicant that the deceased was in fact an ardent IFP supporter, would you be able to dispute that?

MS LUTHULI: Yes I'll dispute that.

MR DEHAL: Why would you dispute that if you had no idea on whether he was an IFP or not?

JUDGE DE JAGER: If she's disputing that he's an ardent - you asked her whether she would agree that he was an ardent IFP?

MR DEHAL: There is that distinction, thank you.

MR DEHAL: Sorry, well generally, why would you dispute that?

MS LUTHULI: What I know is that he was completely nothing.

MR DEHAL: Is it not your version that the entire incident leading up to the death of the deceased started off would then meaning the applicant and his group calling the deceased an Inkatha person?

MS LUTHULI: Would you please repeat that?

MR DEHAL: Is it not your version that the death of the deceased started off with the applicant and the persons in his group calling the deceased an Inkatha person?

MS LUTHULI: Yes they did.

MR DEHAL: This calling of the deceased as an Inkatha person, was that in some derogatory fashion or was that complimentary?

MS LUTHULI: I don't know whether it was complimentary or not but I knew that he wasn't.

MR DEHAL: What word did they use when they said "Inkatha person"?


MR DEHAL: Is that not a word that has a sting to it that is derogatory on a person?

MS LUTHULI: I think so.

MR DEHAL: Did they deceased call the applicants anything?

MS LUTHULI: No he didn't.

MR DEHAL: And after the applicants and the persons in his group call the deceased an Inkatha person, what happened? Did the deceased and his group of persons chase the - sorry, did the applicant and his group of persons chase the deceased or did the deceased chase them?

MS LUTHULI: There was no running after each other. We met Lee and Kwazi, they were in front and Gebu was behind them and then the two passed us and then Gebu didn't, they only turned back and Gebu was in front of the deceased and Lee and the other one were at the back of him and then they started hitting each other.

MR DEHAL: You were asked the question on whether the deceased had a firearm. You said no, he did not own a firearm. You probably did refer to Kwasha as well, the home-made firearm but I just want to clarify, did he ever have a Kwasha, a home-made firearm?

MS LUTHULI: No he didn't have.

MR DEHAL: Did the deceased have knife on him?

MS LUTHULI: No he didn't have a knife.

MR DEHAL: Now how can you be so certain about a knife?

MS LUTHULI: He didn't have knife on him, he didn't own a knife and I'm certain because we came from home together.

MR DEHAL: At the time of his death was the deceased employed or was he at school or was he unemployed?

MS LUTHULI: He was unemployed.

MR DEHAL: Was he not attending school?

MS LUTHULI: He was a student at Mcotoyi.

MR DEHAL: What standard was he in?

MS LUTHULI: He was in standard 9.

MR DEHAL: And were you also at school at the time?

MS LUTHULI: No I had a child at the time so I wasn't at school.

MR DEHAL: And what standard did you make at school?

MS LUTHULI: Standard 7.

MR DEHAL: The applicant says that you were never at the scene, you are lying about your presence at the scene?

MS LUTHULI: He is the one who is lying.

MR DEHAL: He says you arrived at court and testified against him with a vengeance because you were opposed to the idea that he might win the trial and you wanted to see that he is in jail because you knew he stabbed your - the deceased?

MS LUTHULI: I will repeat again, I'm saying he is still lying.

MR DEHAL: And his instructions to me is that today you testify on the same lines, more or less, because you're opposed to him obtaining amnesty?

MS LUTHULI: If he is applying for amnesty he is the one who has a responsibility to tell the truth as it is and if he's telling the truth we will forgive him and we will request for him to get amnesty but if he is lying like this then we're opposing that.

CHAIRPERSON: Were you at court throughout the trial?

MS LUTHULI: Yes I was.

CHAIRPERSON: Didn't you listen to the judgment?

MS LUTHULI: I didn't attend on that specific date but Mbukazi attended.

MR DEHAL: May I proceed Sir? Thank you.

Sorry, what keys did you leave with the lady at the market?

MS LUTHULI: To open the cupboard where we leave our goods, our produce.

MR DEHAL: And when you say you got back to look for a taxi to get back to Umfana Futi's house, I'm just trying to understand this, this is a taxi to the deceased's home, is it, From where you had just walked?

MS LUTHULI: Yes the deceased's home, I wanted to report the matter to them.

MR DEHAL: And do you know how senior Mr Mbambo arrived at the scene? Sorry, how it came about that he arrived at the scene?

MS LUTHULI: No, I do not know that because it happened whilst I went to the market and while I was trying to get a taxi to go back to his home.

MR DEHAL: And do I understand you correctly that when you got back you saw Mr Mbambo approach you with the deceased already in his car and then you accompanied them and went to the hospital?

MS LUTHULI: Yes, we went to hospital.

MR DEHAL: Just on a point of clarity, when you did get back to where Mr Mbambo was, you did not - or did you see him load the deceased in his car or was he already loaded in his car?

MS LUTHULI: How could I have seen him because it happened whilst I was at the market? I only saw the deceased in Mr Mbambo's car.

MR DEHAL: So this part of your statement in paragraph 4 where you say:

"I noticed Mr Mbambo loading the deceased into his private vehicle"

would be an error, would be a mistake?

MS LUTHULI: No, it is not true.

MR DEHAL: Sorry, I'm looking at an English version, I don't know whether the Zulu version is the same but sorry, I see that your original statement is also in English. When you signed your statement did you not see that this part of the statement being incorrect was contained therein? It's on page 9 in the written transcript and page 10, paragraph 4 at the bottom.

MS LUTHULI: I do not know how to speak English. I signed because I've spoken in Zulu but then I didn't read it because I can't even read, I didn't know what was written in English.

MR DEHAL: That's a fair explanation. Do you know whether - I'm sorry before I ask that maybe I should ask this, when you last left the deceased after he was stabbed and went in the direction of Ultra City, where was the deceased's body in relation to the ground, in relation to Power School, in relation to the road you speak of?

MS LUTHULI: When I left there they were still stabbing him, it was closer to the Mtjali's kraal.

MR DEHAL: I know that you now say that when next you met Mr Mbambo the deceased was already in Mr Mbambo's vehicle. Do you know whether the deceased was picked up by Mr Mbambo at the spot where you last saw him or was it on a ground?

CHAIRPERSON: What do you mean by where the spot where you last saw him or was it on the ground?

MR DEHAL: The evidence thus far is that, from the previous witness, that the deceased's body was on the ground.


MR DEHAL: And my earlier question was to establish whether ...(intervention)

CHAIRPERSON: Well was he standing when he was being stabbed or was he lying down, I don't know?

MR DEHAL: Which is why I've asked this question just to seek that clarity.

CHAIRPERSON: When these people were stabbing him was he lying down at that stage or was he standing up still?

MR SIBANYONI: I think by the ground you're referring to the sports field?

MR DEHAL: Yes indeed, sorry, thank you.

MR SIBANYONI: He is referring to the sports field, by the grounds, not necessarily ...(intervention)

CHAIRPERSON: Well he hadn't put sports field to her.

MR DEHAL: Oh sorry, the word ground was loosely used until now so I thought they would better understand it that way?

JUDGE DE JAGER: Well I also understood it to mean whether he was standing or whether he was lying on the ground?

MR DEHAL: Forgive me, thank you.

I know that you say Mr Mbambo had the deceased's body in his vehicle at the time when you returned. Can you tell whether Mr Mbambo had picked up the deceased's body from the sports field or from any other spot or do you know which spot he had picked him up from?

MS LUTHULI: My apology, I can't hear. If they can change my ear sets?

MR PANDAY: Sorry Chairperson, before my learned friend rephrases or re-puts the question. I think if my learned friend could rephrase the question by asking the witness does she know where Mr Mbambo picked up the body from. That would less confuse the questioning to her and she would be in a better question to give an answer or not? I think it's, according to her evidence, we then understand where the incident took place. I think what my learned friend is trying to elicit as to where did Mr Mbambo pick up the body?

CHAIRPERSON: She quite clearly said she doesn't know. She wasn't there.

MR PANDAY: Thank you.

MR DEHAL: Ms Luthuli, do you know how many stab wounds were inflicted on the body of the deceased?

MS LUTHULI: I don't remember very well how many there were but I do remember one because I saw when he was stabbed right in the neck and then after that I ran away.

MR DEHAL: You point in the region of the throat, the one that you speak of?

MS LUTHULI: Yes where I'm pointing.

MR DEHAL: Mr Chairperson, she's pointing at the thorax - sorry, the larynx.

If it is suggested to you that the deceased was stabbed more than six times would you be able to dispute that?

MS LUTHULI: No I wouldn't, no I wouldn't be able to dispute that.

MR DEHAL: When you travelled with Mr Mbambo and the deceased in Mr Mbambo's vehicle were you seated with the deceased at the back of the vehicle or with Mr Mbambo in front?

MS LUTHULI: I was sitting with Mr Mbambo in front and at the back Umfana Futi's father was with Umfana Futi.

MR DEHAL: And do you know whether Mr Frederick Umagasi had arrived at the scene and spoke to the deceased before he was picked up by Mr Mbambo?

MS LUTHULI: No, I don't have that knowledge because I wasn't present, it was the time when I was at the market.

MR DEHAL: Bear with me Mr Chairperson?

When you met the deceased in Mr Mbambo's vehicle did you speak with him and was the deceased able to speak, was he conscious?

MS LUTHULI: There was no time to talk, I just got into the car and then we drove off to hospital, that's all.

MR DEHAL: And on the way, whilst you were driving, did the father of the deceased speak with the deceased? Did you ever speak with the deceased?

CHAIRPERSON: She's sitting inside a bakkie with the driver, when the deceased is in the back of the bakkie, how could she speak to him?

MS LUTHULI: I was in front.

CHAIRPERSON: You were in front?

MS LUTHULI: Yes I was in front and the driver was in front of the car, there's no situation where you find the driver at the back seat or at the back of the car.

MR DEHAL: Yes, I'm not getting funny with you, I just thought she might suggest a reason like the window between the front of the bakkie and the back could open and they spoke through it but in emergency situations like this I was hoping that she would elicit the answer.

In your statement that I referred to earlier on page 10 and 11 of the bundle, the handwritten part of 8 and 9 of the bundle, in paragraph 3, the last sentence, the last line, you referred to the deceased as having had three stab wounds. In fact, more correctly, you referred to the applicant as having proceeded to stab the deceased three times. Do you remember that?

MS LUTHULI: I said after he stabbed him once at the point where I've pointed, after that I ran away.

MR DEHAL: So this aspect relating to the applicant - sorry, to you having seen the applicant stab the deceased three times would be incorrect? Would you agree?

MS LUTHULI: Do you mean I stood there and I watched him stabbing him three times? No, I got scared after he stabbed him once and I ran to the market.

MR DEHAL: Bear with me Mr Chairperson?

Mr Chairperson and Honourable Members, thank you very much, I'm indebted to you. That's the end of the cross-examination.


CHAIRPERSON: Can you remember when you made this statement?

MS LUTHULI: I think the statement was made on the very same day because after the hospital we went to the police station.

CHAIRPERSON: Did you all go to the police station?


CHAIRPERSON: And you were obviously in a very disturbed state?


CHAIRPERSON: Thank you. Further questions?


Ms Luthuli, on page 8 of our bundle we have got a statement which you made to the police. I just want to verify with you the contents that are contained in paragraph 3. I would like you to say if this is correct or not correct. You said in that statement, I want to read:

"As they passed us"

that is, you referred to those who attacked the deceased, you say:

"As they passed us, the deceased turned around. I then noticed them call the deceased an Inkatha person."

Did you say that?

MS LUTHULI: We met two first who talked to us and Umgasani was coming from the back.

MR MAPOMA: Okay, you go on to say:

"The three black males are ANC members from Umkababa reserve."

Do you confirm that you said that?

MS LUTHULI: Yes, the area where they were residing it was predominantly ANC.

MR MAPOMA: Did you know as a fact that they were members of the ANC or supporters of the ANC or you just assume that they came from the ANC dominated area that they were ANC?

MS LUTHULI: The Englanzeni area was divided into two. There was one area which was ANC and the other area was IFP and where they were residing it was predominantly ANC and where we were residing it was predominantly IFP.

MR MAPOMA: Do you know Inganiwaki School?


MR MAPOMA: In which area is that school?

MS LUTHULI: Matino area.

MR MAPOMA: Is Inganiwaki the same school as Mcotoyi?


MR MAPOMA: Am I correct to say Inganiwaki is a lower primary school and Mcotoyi is high school?

MS LUTHULI: Inganiwaki it's where I was schooling and Mcotoyi that's where Mfanafuti was schooling.

MR MAPOMA: I just want you to clarify this, you have said that the deceased was residing at Clermont and only came at Inglanzeni for a moment?

MS LUTHULI: Yes he usually went to Clermont to work during school holidays.

MR MAPOMA: Now this Mcotoyi school, is it in the ANC area?

MS LUTHULI: I don't know whether it's ANC or IFP.

MR MAPOMA: In what area is Mcotoyi?

MS LUTHULI: It is at Naglino and Mnganwaki too.

MR MAPOMA: I thought you had just said that Naglino area was ANC dominated area? Did you not say that?

MS LUTHULI: There are three schools in Umkababa. There's Damgane, Inglanza and Naglino. The place was divided into two. Inglanza became IFP. Damgane became ANC. Even though in fact we didn't have full information about Naglino but Damgane, we were certain it was IFP.

MR MAPOMA: Is it not correct that during 1991 the deceased was no longer attending school because that was an ANC area and he was driven away from that area by the ANC people at that area where Mcotoyi is?

MS LUTHULI: Who drove him away? I dispute that.

MR MAPOMA: Is it your evidence that the deceased, during 1991, was attending school freely at Mcotoyi?

MS LUTHULI: No one scared him away from school. He would have told me if anyone scared him away from school. I never heard of that.

MR MAPOMA: Thank you Chairperson, I have no further questions.


CHAIRPERSON: Re-examination?

MR PANDAY: None Mr Chairperson.


CHAIRPERSON: None? Thank you for having come here today to assist us. We'll now take a short adjournment which I neglected to take yesterday.




CHAIRPERSON: That's the victim's case, is it?

MR PANDAY: That is correct Mr Chairperson.

CHAIRPERSON: And are we leading any other evidence?

MR MAPOMA: There is no any other evidence Chairperson.

CHAIRPERSON: Right, so we're ready to hear argument.

MR DEHAL IN ARGUMENT: Thank you. Mr Chairperson, I want to begin by saying that insofar as the applicant is concerned there are indeed some problems and the problems do appear to be pitched at a level that there is a variance in the version presently adduced to that, adduced at the trial but I dare say if one dissects that difference it does not become so mammoth, so counter-productive, so self-defeating as to negate the application for amnesty.

Principally there are three fundamental contradictions in his version between that at the trial without a record of course, looking at the record or the bundle as we have it.

The one is that he says "we stabbed the deceased". He explained that when Mr Sibanyoni asked him the question that by "we" he meant the one Nsomi held the deceased was "I stabbed him and because we both participated in this, I said we" and I think that is a fair explanation.

The other contradiction that he has is he stabbed the deceased with his knife, meaning the deceased's knife as opposed to the applicant's knife. Now there are three points to be made there. The first is this, there is indeed a statement which the applicant testified - sorry, deposed to, it is the statement contained on pages 5 to 7 of the bundle, it is no doubt a statement that was made under oath and it is a statement in which he says:

"I had a knife in my possession."

Now when I took instructions from him he said it should have read:

"I had no knife in my possession."

His evidence makes it very clear that he did not have, that means the applicant did not have a knife in his possession. The applicant makes it very clear, crisply clear, that he took this knife from the deceased and that having used the deceased's knife he stabbed the deceased to death. Now what turns on this? If he had a knife of his own, premeditation would probably be the argument. If he had a knife of his own it exacerbates his problem. If he had dispossessed the deceased of his knife it's supports his contention of self-defence. Now to support the contention that there must be some truth in the fact that he must have dispossessed the deceased of his knife, one looks at the earlier versions contained on pages 24 of the bundle - sorry, 24 and 25 of the bundle. When this applicant, then the accused number two, appears before a magistrate unrepresented, unaided by any person, even though unaided whilst the police were allegedly assaulted him, being present in court, he says words as crisply and clear as:

"I stabbed the deceased with his knife"

and later in the middle of that page says:

"I admit that I stabbed the deceased with his own knife."

So support for the contention that there is a level of veracity in that version more than in the version that the knife of the applicant was used is to be found in the unaided version of the applicant when he was unrepresented as early as when he appeared at court on the 22nd January 1992.

Mr Chairperson, that being the two contradictions, there is the third and that is where he says on these pages 24 and 25:

"We chased the deceased".

Now that contradiction I concede is one that he did not explain at best. His explanation there is not very satisfactory. In fact he says or rather he responded in response to Mr Sibanyoni's question about this by saying

"I did not say that, that is an error, it was recorded incorrectly."

There appears to be a ring of truth about his explanation. Now when one ties that explanation with the fact that he was unrepresented with the fact that he had just made a statement to the police which talks about five persons as opposed to about six or seven, to a policeman who allegedly assaulted him and a policeman who is now present in court and who as an accused then is speaking through an interpreter to a magistrate who now records the matter, there is the possibility of a level of confusion, is intrinsically present, it cannot be argued that it may not be possible that this was an error.

Those are the only three contradictions of merit. There is nothing else that the applicant has made. Generally the applicant was forthright in his testimony, he spoke with candour, in a manner that showed that he was being as honest as he could.

Now one must look at the applicant's testimony against the background of what truly is the position today. This is an applicant who has been convicted of this murder, this is an applicant who has been to jail on the sentence, has served his full sentence, appears before this Committee in the pursuance of an application for amnesty. In truth, in effect, no purpose would be served on this applicant's lay life if the application for amnesty were granted or refused. If it were refused ...(intervention)

JUDGE DE JAGER: When he applied for amnesty was he still in jail?

MR DEHAL: Indeed he was correct, but he had the option when last he appeared in these Pinetown courts at a time when Alzina Luthuli was not present and his matter came to be adjourned to consider, on my advice, whether he should not withdraw this application or not. He said to me and I can place this on record as an officer of the court, that he did not know quite what to do but he reasoned on the basis if he were to come to the Committee and say it as truthfully as it is, hopefully when he gets back to society there will be a level of reconciliation and at that level perhaps I should pause and interject with this digression. Shortly after Alzina Luthuli testified and this Committee adjourned, I talked to the applicant and Alzina Luthuli and they both met with each other and apologised, or the applicant apologised to Alzina Luthuli, they've embraced each other, they've forgiven each other and in that spirit of reconciliation which is indeed an intrinsic element of this TRC process, that purpose has been achieved. I can place that on record. Okay, apart from that ...(intervention)

CHAIRPERSON: Didn't she say he should be telling the truth to us today?

MR DEHAL: Oh yes indeed, she said so.

CHAIRPERSON: She said no reconciliation till he tells the truth which he's not doing?

MR DEHAL: Yes correct, at the level that her version must be the believable one. I will address on that shortly but just for the sake of the reconciliation, he has apologised to her for having caused the death of the deceased, which is common cause, whatever the reasoning being and she says "well I accept that and there was a fight going on between the ANC and the IFP at the time and I accept that."

Now apart from that, the applicant as I've just submitted has served his time, he is now free and whether he gets amnesty or not, the only effective positive is that it will clean the slate. When I explained that to him he said even that makes no difference to him because he is not so gainfully employed in high echelons of society where a record has a meaningful impact on him and that even if it's not granted he will still continue with his life unaltered.

CHAIRPERSON: Can I go back a little in your argument? Why didn't he mention this falling down till he did it right at the end in the statement that you produced?

MR DEHAL: Well quite frankly I do not know. I must say that when I consulted with him the aspect of the falling down was as the backbone of his case came off as lucidly from him as breathing and I asked him why didn't he mention it and he said he doesn't know whether he did mention it, it never seemed to him very important. We must understand ...(intervention)

CHAIRPERSON: What he said was contrary to it? It wasn't just not mentioning?

"I then turned around and stabbed the deceased."

That is clearly contrary to "I, falling down and being grabbed."

MR DEHAL: I agree, I have no argument against that. All I want to suggest is this, if there is testimony uncontroverted from the applicant that there were some problems in regard to this statement, why for example my knife, the deceased's knife, he says "I never said that." He says he didn't read the statement before he signed it. When asked pertinently about that aspect as to whether you turned around he says:

"I never turned around, I never chased the deceased, I fell. I dispossessed him, I wanted to subdue him"

And that's the level at which he pitched version. No amount of cross-examination defeated him on that. It's only the statements, which he, the applicant, also casts doubt on which stands against him.

Mr Chairperson, there is this aspect that you've asked us to consider and address you on, namely whether there is an offence. I have just a few submissions to make on that. Basically two. The first is this, the applicant no doubt has been convicted. I accept that this is not a court of appeal. He is endeavouring in the hope of if he gets amnesty granted to have his slate cleaned. That's the most positive effect he can achieve from this process.

But secondly, not his view but my view as a lawyer looking at his version, if one looks clinically at his approach of self-defence, it seems to me it is not one that really succeeds as self-defence for here is a man, who on his own admission, is in the company of Nsomi who holds down the deceased at a time when the appellant - sorry, when the applicant dispossesses the deceased of his knife. Now at the level of arguing his activity hadn't gone beyond the bounds of self-defence one can see clearly that if he dispossessed of the knife he could well have taken that knife and run away. He needn't have stabbed the deceased, he needn't have stabbed him to such an extent that three stab wounds were inflicted which indeed common cause caused the death of the deceased. At that level of exceeding the bounds of self-defence it is murder with the firearm but yes, that was negated by the time the applicant got to him.

CHAIRPERSON: He fired one shot which means it has to be reloaded?


CHAIRPERSON: So you don't give a man a chance to reload his gun while you're running away, you stab him?

MR DEHAL: With respect, that would be acting on the premise that there was another bullet to rearm the gun. I would accept the argument that had there been another bullet, presumably the deceased would have loaded it.

CHAIRPERSON: But he had been running after him? He fired and chased them?


CHAIRPERSON: So? To save himself, he stabs him?

MR DEHAL: Yes, there are difficulties in that argument, I concede that and my first submission but the point I'm making crisply is that if one accepts at the worst that the applicant has exceeded the bounds of self-defence, then there is an offence and that offence is murder. At worst, at best assault and GBH. There is an offence for which he needs to apply for amnesty.

CHAIRPERSON: Have you seen the judgment?

MR DEHAL: Not at all.

CHAIRPERSON: Has anybody? Is it available?

MR MAPOMA: No, it is not Chairperson.

CHAIRPERSON: It is not available? Have any enquiries been made of the prosecutor or the magistrate? I tell you why I ask this, because of the sentence imposed. If the court had found - argument rather, it's not conclusion, but if the court had found that three men deliberately set upon an unarmed man and repeatedly stabbed him wouldn't six years have been the sentence imposed?

MR DEHAL: I see the point you're making Mr Chairperson, I agree and I think looking at that judgment would have been correct.

CHAIRPERSON: But if it's not, if we can't get any further information we just have to draw conclusions.

MR DEHAL: Indeed, yes. Mr Chairperson, apart from that we have the brother of the deceased and Alzina, the common-law wife or girlfriend of the deceased to have testified. I deal firstly with the brother of the deceased. I submit respectfully that his testimony is not one that can be accepted. His testimony is pitted with contradictions of material value. He is one who had, for want of a better term, to gain effect, to show that the applicant was really a criminal, pitched his entire version on the basis that this was a criminal act but yet in contradiction concedes the correctness of his wife's statement about the political motivation being present, that these persons being IFP and ANC being correct.

Now on the probabilities, Mr Chairperson, you raised one important aspect with this witness. If his father celebrated on the New Year's Eve, to have been so under the stupor as not to have known that the applicant - sorry that the deceased had spoken or not, then surely if the witness had celebrated as indeed he must have, then he also would have been as confused as he would have us believe his father was but he did not respond to say he did not celebrate, he evaded the question. The probabilities favour the conclusion that he must have celebrated the night before for it was a New Year's Eve night, that if his father was in fact under a drunken stupor as to be confused then surely he must have. But the probabilities are part, the contradictions are so apparent, I mean he talks firstly about:

"my father having reached the spot of the deceased on the ground"

sorry, on the sports ground,

"well after I reached there so my father cannot tell that the deceased spoke or not"

and this in explanation of the term used by the father in his written statement that - sorry, if I may just get to that - on page 14 of the bundle, where in the second last paragraph the father says:

"he was unable to speak".

When this aspect is put to him and he is asked about:

"What do you mean by your father was confused or celebrated the night before? If he arrived later you see then you need to explain that?"

He says:

"Well, my father and I did arrive there together"

reverting to his first version which he had used in response to Mr Sibanyoni,

"And that because we arrived together"

he then adduces the explanation that:

"Oh well, my father could not have heard me speaking to the deceased because he celebrated the night before and was confused."

Now when this is again dealt with he alters it marginally and indeed pads that version to distance himself from it endeavouring to explain it again and again. All those four contradictions were put to him, he could not explain it properly.

He then talks about three stab wounds not being possible, he pitches it at a level of being more than six stab wounds. He says so evident were the stab wounds that the lungs were showing. Now if one ties his version with Alzina's version, which I must submit at this stage is the more believable of the two. By the two I mean between the brother-in-law Frederick and Alzina. Then Alzina's version is that the deceased has a stab wound right here in the larynx and it must obviously follow that speech would have been debilitated to such an extent as to render the version of Frederick that he has this ongoing full version and discussion with the deceased implausible to say the least.

Now to tie that together than more than six stab wounds as against the entire documents before us, speaking of three stab wounds, unfortunately we don't have the post-mortem report etc., but it would appear as though in the formulation of this record having regard to the court record, one stuck to three stab wounds and that might have been common cause in the trial. Now to say more than six stab wounds is really pitching it at the worst.

He then talks about the child. No doubt he must be mistaken about the age but he talks firstly about the child being four years now. When Mr de Jager questions him how could it be possible that the child could be four when this murder took place in 1992 he says he doesn't know because he has not seen this child for a long time, the child lives on the farm if I recall what he said. Mr de Jager then correctly tells him well, that if the death occurred in 1992 then the child must be 10 now. He easily concedes yes, that's possible. Now if he is that intelligent man he wants us to believe him to be, then surely he must know the difference between four years and ten years, even at the level of a mistake. My submission is that he was simply trying to distance himself from the reality to show a child very young to buy sympathy and shows that he was not sticking to the truth generally.

CHAIRPERSON: What is the purpose of that? He knows his brother died in 1992, he must know the whole world must understand the child must be 8 or more?

MR DEHAL: Correct.

CHAIRPERSON: So it's entirely pointless, it surely just shows that he was in a state and wasn't able to think coherently.

MR DEHAL: That or the following, that when one ties Alzina's version with his version and looks at them as flip sides of a coin, here is a man, Frederick, who no doubt on Alzina's version has been seeing this child regularly. In fact the child has been visiting his home and he has been visiting the child, he is the elder brother in the family. In the nature of things, that must be the more believable version. That is as true as Frederick's version is untrue about his having not seen the child for many years. He says "I don't associate with the child, the child since the death of my brother has gone back to the farm, I've not seen the child." So at that level I say that there is a ring of untruth in his version and therefore that reason must be unbelievable, his version must not be acceptable.

But then there is another contradiction. He says he last met the deceased and Alzina - sorry, may I just look at my notes, bear with me? Yes, he said he last met the deceased and Alzina on the morning of the 1st January and when questioned about this he distances himself from that and says "no, no, I did not meet them, this was a report made to me by the children". Now Mr Chairperson, against the background of this I submit that Frederick was a man who was simply stretching the elastic to it's limit in his desire to gain effect. His version must be rejected. Alzina on the other hand I concede immediately is a believable witness. She comes in here and she says it with so much of candour and truth that even I could not cross-examine her to break her at any level. There are, despite that, contradictions between her written statement and herself. Indeed the contradiction relating to the three stab wounds as opposed to one stab wound and the contradiction between "the body having been loaded into Mbambo's vehicles at the time I got there" as opposed to "having already being loaded in there when first I got to Mbambo" are versions that can be argued away on the basis that no doubt she made a statement as is common cause as is evident on the statement on the day of the death so she must have been at level disturbed.

CHAIRPERSON: Isn't there the possibility if not the probability that somebody at the police station took notes and then prepared statements for them all?

MR DEHAL: Exactly the same argument could go for the applicant's statement, I concede that. At that possibility one could even say ...(intervention)

CHAIRPERSON: The applicant was not the morning of the killing when they were all there together, the applicant was some considerable time later?

MR DEHAL: Oh no, no, no.

CHAIRPERSON: They said they all went to the police station and isn't it from the experience one has of these, some policeman is given the job and he makes notes, writes it out and he says sign this, sign this, sign this?

MR DEHAL: Absolutely possible, absolutely acceptable.

CHAIRPERSON: He got the three from somewhere and he puts it all the ...(inaudible)

MR DEHAL: In the nature of things that's usually how it goes, my experience tells the same. I'm levelling my analogy in comparison and pitching it on the basis that it may well be that the person who took the applicant's statement may well have made notes and if you recall, the applicant at one stage said he came back later with a statement and he said "sign" as though he had taken notes, went back, formulated the statement and brought it to the applicant and where both Alzina and the applicant who says "we did not read our respective statements we signed it." I'm saying at that level to the extent that the applicant is believable, indeed Alzina is believable. Now that is where the difficulty begins. The versions between Alzina and the applicant.

I must begin by conceding as I've done already that there are difficulties at that level, I cannot for one moment stand here and say you must believe the applicant against Alzina, there is a ring of truth in both their versions but I ask you, Mr Chairperson, to look at it in this way. What motive would the applicant have to come here and lie? What motive would the applicant have to come here and lie? He's served his time, he knows that if he comes here and says that on the basis as most ANC or politically motivated applicants before TRC are doing, "listen I went there, I had an agenda, I had instructions, I executed my instruction and I did it coldly, I had no difficulty with that", the probabilities of him getting amnesty would be all the better? Now I have canvassed that with him, he's again and again said to me "listen, it was self-defence". It seemed to me that the deceased on the applicant's version had not chased him, the applicant and the applicant did not respond by stabbing him, it would have been inevitable and conceivable that at some future foreseeable event, the ANC, through the applicant would have executed an agenda to eliminate this deceased and but for this event it just became earlier.

JUDGE DE JAGER: What has been troubling me, according to his evidence the deceased murdered people from 1998 onward?


JUDGE DE JAGER: 1988 and the ANC never took any steps against him?

CHAIRPERSON: Apart from reporting it to the police station.

JUDGE DE JAGER: Yes, the never decided to eliminate him, nobody ordered him to eliminate the deceased, there was no sort of order in any event of attacking, one section attacking the other section?

MR DEHAL: Mr de Jager has actually tapped his finger on the pulse that I was going to address on. If you tie these two versions, there appears to be a third that emanates from this and that is it may well be that the applicant is lying. He's the type of unsophisticated, uneducated person who wants to stick to a version that was used at the trial court. It seems to me that the more real version, which Mr Chairperson, you and the Honourable Members are to look at is this, that given the onslaught of acrimonious fighting going on between the ANC and the IFP over the years, given the uncontroverted version about the ANC and the IFP killing each other over those years, given the uncontroverted version of the applicant that indeed the deceased had killed so many ANC people, had been one that had been an ANC and defected to the IFP, that there must have been a motive to eliminate this deceased and that the killing must have been in the execution of that order to eliminate the deceased.

CHAIRPERSON: So we must assume an order that's he's denied having for his benefit? I'm afraid I find that very hard to accept.

MR DEHAL: No ...(intervention)

CHAIRPERSON: You are arguing that we must accept that he was carrying out an order to eliminate when he has denied that categorically?

MR DEHAL: Mr Chairperson, as difficult as it may sound, was that is not his version. It is a version that is in a way plausibly tainted with the version of Alzina and the brother Frederick who says listen, there's an ANC/IFP conflict going on. I'm not saying that the deceased was IFP and whilst Alzina today said "I'm not saying the applicant is ANC" her statement says yes, they were ANC members. At that level it must be seen clearly that there were ANC and IFP conflict.

Now if one takes that a little further, ask the question, is there really opposition before us here today to the applicant's amnesty application? If you look at Alzina's application she agrees when Mr Mapoma asked the question, that yes, the applicant and his members were ANC members, that is in my statement and I said so, they lived in an ANC area and indeed that was so. My boyfriend the deceased was in an IFP area, he comes from an IFP area and that's principally the reason for the fight. Frederick goes further, he says I agree with my wife, it's an ANC/IFP conflict, it's politically motivated. Now political leanage is established even on the witnesses for the victims. Full disclosure is the problem and there I have no argument. Sorry, if you'd bear with me?

The only one reservation that I have with Alzina's version is that appears to distance herself today until Mr Mapoma raises a statement with the ANC leanage and the IFP leanage. It seems if at all - I'm sorry, I'm not sure that I can submit this but it seems to me personally that knowing that this is an amnesty application there is a need for political leanage that she distances herself from it. I do not know what happened at the trial but I'm told by the applicant that she punctuated her entire evidence on the basis that he, the applicant, then an accused, was an ANC man, that the deceased was an IFP man, that this was ongoing conflict between the ANC and the IFP. That is the only reservation that I have and Mr Chairperson, with those submissions I submit that if one reads within section 20(i) of the Promotion of National Unity and Reconciliation Act 34 of 1995, at the level of there being an act or omission or offence without reading too much into the need to establish whether there is an offence here, perhaps looking at whether it's an act in itself, the applicant has made out a case for amnesty, he does have difficulties with Alzina's version looked at against him but there has been many matters of this sort with difficulties for the TRC. That in itself, like a trial, does not dismiss his application as negatory. Thank you.

MR PANDAY IN ARGUMENT: Sorry Mr Chairperson, just wondering a bit. What motive does the applicant have to launch his application for amnesty? That answer is quite simple, Mr Chairperson. It's my respectful submission that when this application was launched for amnesty, if one looks at page 3 of the bundle of documents, one would note that this application was commissioned on the 1st November 1996. Now at that time the applicant would have still been serving his sentence. In his attempt to launch his application it would have given the will to foresee that he may be out of prison sooner than expected and more importantly had he most probably stuck to this application itself as opposed to submitting Exhibit B, he would have had almost no problem in most probably succeeding his application.

The Committee sits here today and has to make a decision as to whether (i) was the act or acts of the applicant political? And (ii) has he fully disclosed as to what had taken place on the day? He has expressly stated under his evidence in chief and cross-examination that he acted in self-defence. He has also in paragraph 11 of his statement submitted on the 14th of this month stated that his act was self-defence. Now the Committee now faces a problem in deciding whether we need to grant him amnesty for this application. As the Committee you are faced with an issue of a political agenda. Now the applicant has abandoned his political agenda and has brought to the Committee's front that this action was one of self-defence and his most fateful submission that this is not the forum to have raised this issue.

My learned friend has argued that one can look at Section 20 and consider the acts, offences, in it's wide sense to embrace this argument. My learned friend has further argued that ...(intervention)

CHAIRPERSON: But on this one it's a matter that causes me some problems. If you get what is obviously a political fight between an ANC group and an IFP group who are seeking to take over a building or something and it is in furtherance of their objective, but during the course of that fight one of them gets cornered and he manages to take the knife away from the person who has cornered him and stabs him so he can get away safely. Does that mean it's no longer political?

MR PANDAY: Well Mr Chairperson, I concede the point that that still remains political. The action stems from a political objective and continued. Now the applicant seems to now distance himself from the political objective. He mentions that he did not have the intention to kill the person and thereafter goes on to say it was self-defence. He merely had to stick to his version that the killing of the victim was as a result of the original act that was political?

CHAIRPERSON: He is saying "they were political in coming to attack us and drive us out of the area. We were just fleeing for our lives."

MR PANDAY: Mr Chairperson, I may concede that point that it can still be very well construed as political. Now the second test of this application is that there has to be full disclosure. Now as my learned friend has pointed out, he cannot submit or make any submissions with regards to full disclosure. The full disclosure of the applicant is hampered seriously by the evidence of Alzina. Even if one has to disregard or not hold the evidence of the brother Frederick Mbukazi in much light, it is my respectful submission that Alzina was straightforward, she was candid, she was able to give a detailed account and a precise account of what took place. She was not able to have been broken under cross-examination and she merely related what took place on the day in question. Now if one has to look at the version of the applicant who suggests that she was there to just merely see the people punished, a person of that sort, Mr Chairperson, would not have been able to sustain a detailed cross-examination. She gave her evidence straightforwardly, she had no problems in relating the sequence of events that took place. She detailed the place where they were at as well as the incident and as to how the body got to the hospital.

Now the applicant would like us to believe that the incident took place at the ANC stronghold, that being Dangani and she quite emphatically denied that. She states that they were on the way to the market and this took place near the power school, that is in the Hlangesi area and that is where the incident took place where the applicant attacked, together with two other, attacked the victim.

The applicant further denies there being a person namely Mbambo, Kwazi Mbambo. Now judging from the evidence delivered by Alzina she was very sure as to who was present. She gave a detailed account, there were three people. So and so gave the knife to the applicant and he did the stabbing. Shows the person that did not add frills and thrills, if she did not know something she blatantly denied it, "I do not know, I can't say for sure" and that was it.

Now even if one accepts this entire in the mind of the applicant there was a political feud going on, everyone accepts he is an ANC activist, he is an ANC supporter, everyone has to accept that the victim was an IFP supporter or IFP activist, that will cover the political aspect of this application.

The second issue to address is the full disclosure. It is my respectful submission that the applicant has not made any full disclosure or has not made full disclosure. It is common cause that the victim was killed but the circumstances under which the victim was killed and as to why exactly he was killed, that in my respectful submission is not full disclosure and it is therefore my respectful submission that the applicant has failed the test to be countered amnesty and accordingly his application should be refused. Thank you.

MR MAPOMA: I have no argument Chairperson, thanks.


MR DEHAL: I have nothing to add, thank you.


APPLICATION NO'S: AM5967/97 & AM6387/97


______________________________________________________CHAIRPERSON: We are now going on to Mbanjwa and Ndaba?

MR PANDAY: Yes Chairperson.

MR DEHAL: Mr Chairperson, I don't think I'm involved in this matter, I'm involved in the Mafu matter.

CHAIRPERSON: That will come on next, after this one.

MR DEHAL: Is this purely for address?

CHAIRPERSON: Mr Wills has said 10 minutes?

MR WILLS: Yes thank you.

CHAIRPERSON: So if you could just change places with him for 10 minutes?

MR DEHAL: May I just mention at this stage, there appears to be a problem with the Mafu matter as well. We've just been given a voluminous statement by Deborah Quinn which Panday and I have not seen before. I need to take instructions on that so could we recess now, having regard to this matter till 2 o'clock? Hopefully I'd be able to take instructions till then?


MR DEHAL: Thank you very much I'm indebted to you.

JUDGE DE JAGER: Who is appearing in Nyawuza?

MR PANDAY: Are you appearing? There are two applications, Ngema and Nyawuza.

MR DEHAL: Mr Chairperson, if we may be temporarily be excused?


MR DEHAL: Thank you.

CHAIRPERSON: When the evidence concluded in this matter we adjourned because it was stated that the deceased's mother was going to give evidence which she was expected to do on the Wednesday. This adjournment occurred on the Monday. We accordingly adjourned the hearing until Wednesday on the basis that she and any other witnesses who wished to give evidence would be able to do so on the Wednesday. Unfortunately when we reconvened on the Wednesday, that is on the 4th August of last year we were told that the deceased's mother had been shot the night before. It struck us at the time that there may have been a connection between the shooting and the fact that she was going to be a witness at our hearing. On this basis we have decided to adjourn the matter further and I requested the Attorney General to conduct a full enquiry or as full an enquiry as was possible into the motive for her shooting. He duly did so and I have a copy of the letter, he wrote to the Area Commissioner informing him that he could assign the investigation to what has come to be known as the MacAdam Unit and I have a further letter indicating that an extremely capable and experienced police officer was assigned to take over the investigation. There has been no information laid before us to indicate that the unfortunate death of the deceased's mother was in fact in any way connected with the fact that she was due to give evidence before this Committee. In those circumstances we can do nothing more than proceed with the hearing. There's no possible reason for any further adjournment and delay and that there is no suggestion that any further enquiries could possibly in any way reveal anything further. It seems in those circumstances though that I should enquire as to whether there are any other persons present today who were present then who wish to give evidence in this matter.

MR WILLS: Mr Chairperson, our case, the case for the applicants is closed at this stage we won't be requiring any further evidence.

CHAIRPERSON: Yes, it doesn't appear that there's anybody here who wishes to give evidence? Mr Mapoma, you don't know of anyone who wishes to give evidence do you?

MR MAPOMA: No Chairperson, what we did, we did send notices to next-of-kin of the deceased in this matter and the indication that I have received from - the report that I received from the investigator is that they said they are not interested in attending to the matter any further and as such I don't have any

further witness or evidence to tender.

CHAIRPERSON: Very well, we can then merely proceed to the question of argument. Mr Wills.

MR WILLS IN ARGUMENT: Thank you. Mr Chairperson, I submit that both applicants have satisfied the requirements of the act in that their application complies with the requirements of the Act and the act or the offence was an act associated with a political objective committed in the course of conflicts of the past and that they have made a full disclosure.

Mr Chairperson, Honourable Members, I'm going to deal briefly with full disclosure first of all and then a little more thoroughly with the aspect of political motivation. I think it's material in this matter, Chairperson, that the applicants have come before this Committee with nothing to gain insofar as they haven't been apprehended, they haven't been sentenced, in fact nobody would have known about this offence or who committed the offence had the applicants not come before this Committee. Unlike a lot of other applicants who are in jail and are seeking release these applicants came, they said what they did and they sought amnesty on that basis and I submit that it goes a long way to indicating that to the best of their recollection they have told the truth. There would be no point in them coming before this Committee and lying in those circumstances. In fact it would be a futile exercise. I realise and I've been through the record that there are a couple of instances where the Chairperson and the Honourable Member, Mr de Jager, questioned the applicants on the level of credibility and veracity but I submit that on both those occasions the discrepancies are minor, the one was relating to the aspect of whether the deceased saw the accused or recognised the applicants prior to his demise, there was a slight contradiction between what the applicants said in their evidence in chief and what they said under cross-examination and the other issue concerned whether or not the deceased was searched for the firearm afterwards. I submit those are really non-material and small matters. The main matters are material things, is that the applicants came, they said they decided to kill the person, they searched for him, they found an opportunity and they killed the person and they came and told the Committee to the best of their ability how this occurred.

JUDGE DE JAGER: According to their evidence, according to my recollection they acted against a criminal gang?

MR WILLS: That is correct, Chair. A criminal gang leader.

JUDGE DE JAGER: Yes and they did so because this criminal gang sort of inhibited ANC activities and well they inhibited the whole community, there couldn't be a normal community life?

MR WILLS: That is correct, yes.

JUDGE DE JAGER: Can we say they acted against a political opponent?

MR WILLS: There are a number of occasions where they indicate that they were of the belief that the deceased and his gangs were being utilised by the police in the struggle or the counter-revolution against the ANC. There was a specifically - a specific point on page 6 of the record of this matter where Mr Ndaba and I quote, it says at the bottom of the page:

"At the time it was common knowledge that the police were collaborating in harassing the ANC. There had been many instances where people, that is ANC people had been killed, shot at. At one time a house attack, that is the Midlands Chairperson, Mr Harry Gwala, which had been attacked by these gang members"

and this is the important sentence, it's the last sentence on that page:

"We then felt that these gang members were being used by the police as part of their counter-revolutionary strategy"

Now that's the closest we can get to that length and I submit that there's nothing to gainsay that bona fide belief and to that extent I submit that they satisfy that requirement.

Turning to the remainder of my argument on political motivation, purely they were trained ANC security persons, clearly complaints were received about the activities of this gang and I think the context is important in that the complaints were contextualised in such a manner that the activities of the gang were adversely affecting the ability of the ANC to organising that community. Committee members became scared and in fact Committee members were targeted by this gang. So it's a political problem, it's a problem that the ANC, if they want to organise, have to sort out. They then were tasked by a senior person, Intelas Skosana, to investigate. They investigated and they reported back to Intelas Skosana, their superior, the results of their investigations and he said do something about it. They then took it upon themselves to do something about it and they took the decision to kill the person. Now clearly the inference is unavoidable that the motivation in killing this person was to prevent the obstacle to the ability of the ANC to organise in that area, that is why this person was killed.

They then reported back to Skosana who basically tacitly approved of their activities. Clearly had they done something that was out of ANC policy as my learned colleague, Mr Mapoma, inferred in his questioning, then surely Skosana would have taken the issue up and possibly the two applicants would have been disciplined but instead, the evidence before the Committee is that when they reported back to Skosana, Skosana was perfectly happy with what they had done.

There was no ill will or personal gain, no malice in the activities and as regards the proportionality aspect, they didn't attack the gang at large, they took a decision, a minimal approach in fact, to target who they perceived as a gang leader and they killed him and nobody else and the objective was achieved and they did nothing further. I submit that on this basis their political motivation cannot be doubted, it must be accepted, there's nothing to gainsay any of the evidence. I understand that there was an unfortunate incident, the demise of the deceased's mother but be that as it may there's no evidence, there seems to be no interest to put any counter version before the Committee and I submit on that basis that it must be accepted particularly in view of the fact that it is the applicants who have brought this to the attention of the Committee and the world at large and nobody else. Thank you Chairperson.

CHAIRPERSON: Mr Wills, one matter? I don't want to use you as a witness but you told us as I understand, this is page 12, that you had been in touch with certain other members of the local ANC leadership at the time and they had arranged to come and testify on Wednesday, it was the day when we adjourned, they will if necessary be available to testify?


CHAIRPERSON: So this is not one of the cases where one merely has to rely on the applicant who is saying he was a member of the party?


CHAIRPERSON: You could assure us and I think we would happily accept that, that leading members of the ANC of the local leadership have confirmed that the applicants were ANC members?

MR WILLS: Yes indeed and I think Mr Chairperson, you don't necessarily have to rely on me for that, I think you can take judicial notice of the integration process, these two persons have on record indicated that being ANC security persons they have been integrated into the VIP protection unit and it's solely as a result of their position in the ANC security department that they were afforded that opportunity and they operate in that position today.

CHAIRPERSON: No Mr Wills, no. We have an application before us this week where the applicant applied for two offences, the first was being member of the - killing a member of the ANC wasn't it? Being a member of the ANC and killing a member of the IFP. A few years later now being a member of the IFP, he killed a member of the ANC and at that time he was working as a - in the ministerial protection unit so I don't think one can necessarily place weight on their current positions.

MR WILLS: Yes as you please Mr Chairperson, but I have established that they have been members of the ANC for a considerable amount of time as indicated in the papers.

CHAIRPERSON: Thank you. Mr Mapoma?

MR MAPOMA IN ARGUMENT: Thank you Chairperson. Chairperson, I am finding myself in an awkward situation so to speak. The victims initially when I consulted with them before this matter came to be heard, they are saying they are opposing the application on the basis of the fact that, so they say, this act was not an act associated with a political objective as defined in the act because they argued or they were saying that this was a conflict within the ANC structures and did not necessarily that they were gangs. During the evidence of the applicants I have put it to them individually during cross-examination when they disputed vehemently that the victim was a member of the ANC or an activist within the ANC structures. It's a situation then as it is which left me with no evidence to take the matter further to put the version of the victims along that direction but the only argument I can at this point, Chairperson, highlight, is that it is - there is no policy of the ANC to act against people who are perceived as criminals as such.

I have taken note of the argument that is being advanced on behalf of the applicants that they were perceived as people who were used by the police to inhibit the activities of the ANC and the Committees as well. That argument, I must say Chairperson, sounds plausible in the circumstances. Therefore, Chairperson, I find myself with nothing but to recommend that the applicants be granted amnesty. Thank you.

CHAIRPERSON: There was some evidence, wasn't there, that the deceased had been a member of the ANC at an earlier stage but that he was no longer active in the ANC when he was running this gang or was that something you put?

MR MAPOMA: That's what I put to them Chairperson and they disputed that, that he was ever a member of the ANC.

CHAIRPERSON: But they did give evidence and there seems to be nobody conflicting with it or nobody wishing to contradict that they discussed the matter with their seniors in the ANC, they were told to take some action, they did take action and they reported back?

MR MAPOMA: Yes Chairperson.

CHAIRPERSON: That's unchallenged?

MR MAPOMA: Yes, it's also unchallenged.


MR MAPOMA: Thank you Chairperson.

CHAIRPERSON: Is there anything else? Thank you. Well, we have agreed the others can adjourn. We'll adjourn till 2 o'clock, so we'll stand by that. Are you in anything further today?

MR WILLS: I don't think so, Mr Chairperson, if I could be excused to return to my office?


MR WILLS: Thank you.






JUDGE DE JAGER: The next matter would be?

CHAIRPERSON: Mafu. We will proceed with the Mafu application. Right, before we do so I want to deal with two other matters that have been set down for today. First is the application of Joseph Ngema. I gather there are a number of people here today who are interested in hearing the Ngema application. Unfortunately, we cannot proceed with that application today and I do not want to put you to the inconvenience of coming and perhaps waiting all of tomorrow. So we are now going to adjourn the Ngema application until 9.30 on the morning of Thursday 17th, that is this Thursday and I don't know if there are still people here or whether they are waiting outside now, I gather transport home will be arranged for them and arrangements will be made for them to be here on Thursday. That is so isn't it?

The second matter is the Nyawuza matter which also is set down for this afternoon which will not be able to be concluded today and we have, after discussion, resolved that this one should be adjourned till 2 o'clock tomorrow afternoon, that is one Wednesday, 16th at 2 o'clock. Are the persons interested in the Nyawuza application here?

Right, those two will be adjourned and we will now proceed with the Mafu application. Would you please announce who is appearing for whom?

MR DEHAL: Thank you Judge, I appear for the applicant, Mr Mafu. My name is Roshan Dehal from the firm Dehal Incorporated of Durban. Thank you.

MR PANDAY: Thank you Mr Chairperson. I appear on behalf of the victims, Mr Panday, initial S. Thank you.

MR MAPOMA: Chairperson, Zuko Mapoma, Evidence Leader.

CHAIRPERSON: The Committee remains the same, myself, Mr de Jager and Mr Sibanyoni. We will now proceed with the applicant. Are you leading the applicant first?

MR DEHAL: I am indeed. May I just make one comment which is unrelated? I thought Mr Mapoma would have raised this with you, he actually intended to do so. The two matters that you've mentioned, Mr Chairperson, still exclude one matter. That leaves us still with one matter and that is the matter of Tom Madlala. This is a matter which is scheduled to begin tomorrow morning. I think the large crowd that is present here is actually present in support of the Tom Madlala matter. They contain, they consist mainly of prisoners. Now the warders and the senior members of Westville Prison are present here and have expressed their concern that they need to take these prisoners back including the present applicant who is presently in prison at Westville. Apparently they can't bring two vehicles, they will have to bring one vehicle, also apparently given the crowd, they would need a bus. So apparently they need to get off between by 4 o'clock latest. Thank you.

Mr Chairperson, now in the Mafu matter, I have a statement prepared. I have asked my assistant to circularise a copy. I hope that the Committee members do have a copy and the other two gentlemen. Would that be marked Exhibit A?

CHAIRPERSON: My colleague has suggested to me that if they are anxious to return some of them to Westville Prison they could take one group now and then return to take the present applicant back. It's not very far from here.

MR DEHAL: Indeed, it's a brilliant suggestion. In fact it's the very one that I made to them but apparently so fraught is Westville with red tape so I'm told that they would only send one vehicle and not two for they don't have any men there. Apparently break off at 3, today is a pay day as well at Westville and all sorts of other problems that compound the issue.

CHAIRPERSON: Well we're merely trying to assist them, that if they wanted to get away with I think there are five people I can see, they could have done so but if they'd rather sit here until 4


MR DEHAL: Yes indeed, well thanks for the suggestion. Just may Mr Mafu be sworn in? He is Zulu speaking.

MAFANDO JOKONIA MAFU: (sworn states)

EXAMINATION BY MR DEHAL: Thank you Chairperson.

Mr Mafu, sorry may I hand to you a bundle - sorry Chairperson, I'm just seated away from the applicant so I'm just handing over my bundle, it's the only bundle I have, I'm hoping I get it back. Mr Mafu, do you see the application for amnesty on the first few pages, I don't have the bundle here so I can't tell you the page numbers and I'm referring now to the ...(intervention)

JUDGE DE JAGER: Mr Mapoma, haven't you got a spare bundle to give to the witness?

MR MAPOMA: Unfortunately I don't.

CHAIRPERSON: You can take one of mine.

MR DEHAL: You will notice in that bundle there's a loose sheet at page 35 I think it is, that is because they'd left out the printed page 13, that's the ...(indistinct)

MR DEHAL: Thank you, I had the same problem, thank you Chairperson.

Mr Mafu on pages 1, 2, 3 right up to page 10 is an application for amnesty completed in the Zulu language. Do you confirm that that is your application for amnesty completed in your handwriting in the Zulu language?

MR MAFU: Yes that is correct.

MR DEHAL: However, you tell me you have a problem on page 9 in that that signature is not your signature but you have no problems in confirming the correctness of the application as correct?

MR MAFU: That is the problem.

MR DEHAL: And whilst we're on the application itself, if you look at page 14, the last paragraph, page 14 of the bundle before you, do you see the last paragraph at the bottom which says:

"But if Inkudusenti, that's the deceased, did not come to me and say he's the one who killed my brother, Sibonsile and my dad, he wasn't going to die or died"

Do you see that paragraph?

MR MAFU: Yes I do.

MR DEHAL: Is it correct that your instructions to me is that you never said that and that if you look at the comparable paragraph in the Zulu language there is nothing of that sort ever mentioned in your application either in that paragraph or anywhere else in your application?

MR PANDAY: Sorry Mr Chairperson, before my learned friend will go any further ...(intervention)

MR MAFU: Yes I do not know what is written in that form.

MR PANDAY: As I was saying Chairperson, before my learned friend will go any further I think it will be fair enough for us to get the interpretation of the last paragraph in the Zulu application as opposed to the translation because neither one of us are conversive at the moment in Zulu, to understand what the content of the last paragraph is that he is referring to in Zulu.

CHAIRPERSON: Well before we do that is it not correct that the whole of paragraph 10(b) which appears on page 6 has not been correctly translated onto the English version on page 14. I say this not on the basis of my detailed knowledge of Zulu but merely on slightly half way down the page, a little bit more than halfway down the page 6, one sees the words "1987 June 16th". I do not see them on page 14?

MR DEHAL: Indeed, correct.

CHAIRPERSON: So if there's going to be a translation I think it would perhaps be more assistance to get the whole of paragraph 10(b) translated.

MR DEHAL: Correct.

CHAIRPERSON: And we could perhaps request someone to do that during the course of this afternoon?

MR DEHAL: Perhaps yes.

CHAIRPERSON: If you look around you will see that somebody is going to attend to it.

MR DEHAL: Thank you.

So for that reason Mr Mafu, is it correct that you do not confirm the correctness of the English translation of the application from pages 11 to 17? Do you agree with me?

MR MAFU: Yes I do.

MR DEHAL: Thank you. You have made a statement, a copy of which you have before you, do you see the statement, a three page statement? Do you mind getting that in front of you?


MR DEHAL: Thank you.


MR DEHAL: Thank you Sir. May I take you through the statement? But firstly, this is your statement that you have made to us as your legal representatives and you've signed it and initialled the alterations thereon, correct?

MR MAFU: That is correct.

MR DEHAL: In the statement you say in paragraph 1 that you're an adult male, you were born on the 7th June '63 but you're currently detained at Westville Prison, is that correct?

MR MAFU: That is correct.

MR DEHAL: In paragraph 2 you say that you became a member of the ANC in 1988 under the wing of Operation Vula. You joined the ANC to fight against apartheid. You were also a member of the ANC Youth Brigade and you were responsible for the protection of the ANC members and supporters, is that correct?

MR MAFU: That is correct.

MR DEHAL: Now the Operation Vula that you speak of, is this the well known famous Operation Vula, operation of MK, of uMkhonto weSizwe, in which Mr Ronnie Kasrils and Comrade Mac Maharaj featured prominently?

MR PANDAY: Objection, that's leading the witness Chairperson, that's not even in his statement.

MR DEHAL: I accept that's leading, I don't think that's unfair, this is common knowledge as well. Thank you.

In paragraph 3 ...(intervention)

MR MAFU: Yes that is so.

MR DEHAL: Thank you. In paragraph 3 you say:

"Shortly after I was recruited by Operation Vula as a cadre with uMkhonto weSizwe I was taken to Transkei where I was given formal training in the discipline of an organisation of MK and taught the use of firearms and ammunition, is that correct?

MR MAFU: That is correct.

MR DEHAL: You then say that you were recruited into MK on the Operation Vula by Mr Sipho Mkhize, your commander, and Mr Archie Gumede, is that correct?

JUDGE DE JAGER: I think if he confirms that the whole statement is correct, let's not ask every sentence whether it's correct.

MR DEHAL: I thank you. Is this the Archie Gumede, who was a lawyer, a human rights lawyer here in the greater Durban area?

MR MAFU: That is correct.

MR DEHAL: And he is now late?

MR MAFU: Yes he is late.

MR DEHAL: He then continued to say:

"I was trained amongst other things in the use of handgrenades, shotguns, pumpguns, HMC's limpet mines and various other arms and ammunition"

On your return to your area you became the commander of the youth league in your area with the permission of your commander you recruited various cadres within your unit and assisted to politicise them by educating them on the discipline of the organisation and the use of arms and ammunition.

MR MAFU: That is correct.

MR DEHAL: This education, did it take the form of the use of literature like Sitchaba?

MR MAFU: No it was informal training, just what I could show them.

MR DEHAL: Okay, in the next paragraph you say:

"In the area of Nyanazulu in Port Shepstone there was constant fighting between the ANC and the IFP. ANC members and supporters were physically harassed by the police who worked hand in hand with the IFP. ANC supporters were prohibited from using the recreational facilities. At ANC rallies and meetings you were always ambushed by the IFP and the police and your comrades were killed."

MR MAFU: That is correct.

MR DEHAL: And then you continue in paragraph 5 to say that as a leader you wanted to fight this problem to protect the ANC members. You had met and decided on a plan to eliminate informers and Ilikuzeng Mkhize, the deceased in this matter was an informer and he was responsible for the deaths of many comrades. He was therefore identified as a legitimate target. You were concerned about the safety of your people.

MR MAFU: That is correct.

MR DEHAL: In paragraph 6 you then continue to say:

"On a certain Tuesday at eleven you had discussed with your commander of the ANC in the area, one Cyril Shezi, a plan to eliminate the deceased. At the meeting Cyril took the decision that the deceased had to be killed."

MR MAFU: That is correct.

MR DEHAL: Now this Cyril Shezi, was he a part of the Operation Vula or was he part of ANC structures in the area?

MR MAFU: He was not part of Operation Vula but he was in ANC structures.

MR DEHAL: It was Sipho Mkhize whom you refer to in paragraph 3 who was a part of Operation Vula, correct?

MR MAFU: Yes he was our commander in Operation Vula.

MR DEHAL: You then continue to say it was agreed that:

"a group of us would see to it that this was in fact done. Everyone present at the meeting unanimously agreed with the instruction. It was made clear at the meeting that the deceased was going to be killed because he was an IFP member who was a police informer and who was responsible further for killing several ANC members."

MR MAFU: That is correct.

MR DEHAL: You then say that:

"It was well known that witchcraft was embraced by the IFP in it's onslaught on the ANC and UDF in the escalating war at the time. You say the deceased, it was believed also practice that the ...(intervention)

CHAIRPERSON: Will you remember that this is being interpreted not only for the applicant but for the members of the public who have an interest in the matter. So give them time to do so?

MR DEHAL: I apologise. Thank you.

Sorry, may I just repeat that last part?

It was well known that witchcraft was embraced by the IFP in it's onslaught on the ANC, UDF in the escalating war at the time?

MR MAFU: Yes that is correct.

MR DEHAL: The deceased, it was believed, also practised the use of witchcraft in his fight against the ANC?


MR DEHAL: This witchcraft was known to be used to help protect them in the IFP and their property against attackers and to help attack ANC.

MR MAFU: That is correct.

MR DEHAL: The deceased was known to have lived by such witchcraft practice.

MR MAFU: That is correct.

MR DEHAL: You then say that you distinctly remember that the deceased's son, Kenneth, was also present at this meeting?

MR MAFU: Yes he was present.

MR DEHAL: Is this the meeting at which the decision was taken to execute the deceased?

MR MAFU: Yes because the last time I saw Kenneth it was at that meeting.

MR DEHAL: Kenneth is the deceased's son?


MR DEHAL: Did Kenneth disagree in any way or did he agree with the decision of the ANC structures at that meeting, to execute his father, the deceased?

JUDGE DE JAGER: ...(inaudible) seem to be relevant but I think it's very, very unfair to lead evidence about the sons involvement in killing his father. It may be relevant but I just want to ask you to make very, very sure about those facts because it may be said today that it's so and it could really reflect on the future of such a young man. We've got evidence that he didn't agree for instance to light the body of his father, so to strike the match, so I think that's common cause because he himself said so but I'm not sure whether he ever agreed with any decision to kill his father.

MR DEHAL: Thank you Mr de Jager, in fact my instructions are that and I'm wondering whether this applicant will confirm that and this was the endeavour I was hoping to achieve. The son was present at the meeting but he did not express openly his agreement with the decision to execute his father nor did he dissent from such an agreement and I think pretty obviously would not have done so.

JUDGE DE JAGER: He wouldn't have done so, he's one in a crowd of 200 at least?

MR DEHAL: Absolutely yes.

JUDGE DE JAGER: But it wouldn't implicate that he sought of agreed?

MR DEHAL: I agree.

In paragraph 7, Mr Mafu, you say that in order to execute Mr Shezi's instructions, you together with about 200 ANC comrades marched to the deceased's home. As you were approaching his home you met him on the road?


MR DEHAL: You then saw this the best opportunity to ask the deceased whether he did in fact practice witchcraft and kill your brother thereby. You had heard rumours ...(intervention)


MR DEHAL: Sorry, thank you. You had heard rumours from your family that your brother who was killed in an accident a few days earlier was bewitched by the deceased?


MR DEHAL: Thank you. You say that when you asked the deceased this question he refused to answer you?

MR MAFU: Yes he became aggressive.

MR DEHAL: In paragraph 8 you say upon arrival at his home, that's the deceased's home, your comrades and you started started stoning the deceased with the intention to kill him?

MR MAFU: Yes that is correct.

MR DEHAL: And in order to give effect to your commander, Mr Shezi's political instructions to you?


MR DEHAL: You say that it is possible that you asked further questions about the deceased's witchcraft activities at this stage and that when the deceased fell to the ground ...(intervention)

MR MAFU: Yes that is correct.

MR DEHAL: You say that when the deceased fell to the ground you were convinced that he was dead. You and the other comrades then asked Kenneth, that's the son of the deceased, to pour petrol over his father because as he was present at the meeting when the decision to kill his father taken and he did not then voice any objection?


JUDGE DE JAGER: Who asked him to do that? Did you all sing in a chorus, "pour petrol on your father" or who asked him to do that?

MR MAFU: I'm the one who told him so.

CHAIRPERSON: Well did you tell him or did you ask him?

MR MAFU: I told him because I had been given that task.

MR DEHAL: Thank you. You continue in that statement to say that you assumed, you say "we" I presume you and the other comrades, assumed that Kenneth the son had still agreed with Mr Shezi's instructions to eliminate his father?

MR MAFU: Yes I assumed so because he was one of us, a comrade.

MR DEHAL: Then you say that Kenneth the son in fact did pour the petrol but had refused to light the match and then fled?

MR MAFU: Yes he did refuse and he fled thereafter.

MR DEHAL: You then say that you personally lit the deceased's body and that you did this ...(intervention)

MR MAFU: Yes I did so.

MR DEHAL: And you say that you did so because you still agreed with Mr Shezi's instructions and you wanted to assist with the ANC of the danger that the deceased posed to the ANC as an organisation?

MR MAFU: That is correct.

MR DEHAL: In the next paragraph you deal with your trial and the stance you've taken there and you say inasmuch as Mr Mandela was released in February 1990 and the ANC unbanned, when your matter came before the courts in 1990/91 it was not possible for you to fully disclose the nature of your involvement with the ANC to the court hearing your trial?

MR MAFU: That is correct.

MR DEHAL: You say that that court which heard your trial, your matter, was seen by you still as a relic at that stage of the apartheid era and you were not prepared to detail your involvement in ANC activities at that stage as you did not trust the courts?

MR MAFU: That is correct.

MR DEHAL: You then go on to say that you accordingly kept your Operation Vula and MK activities all a secret from this court?

MR MAFU: Yes that remained my secret.

MR DEHAL: You say the court would not have believed the level of your political involvement, nor would it have been sympathetic to it. You say on the contrary this would have opened a can of worms on all the other comrades within the unit and would have caused the whole unit to have been arrested and the arms cache recovered to the consequence the death of your progress of the ANC and of reform in this country?

MR MAFU: Yes that is correct.

MR DEHAL: Then you say in paragraph 10, as the courts would not have accepted a true version of the incident you were forced to rely heavily on the aspect of the witchcraft activities of the deceased and his alleged involvement in your brother's death as the basis of your then defence.

MR MAFU: Yes that is so.

MR DEHAL: You say you maintain that you did not mislead the trial court as this witchcraft aspect was indeed the only feature which you could safely disclose to the court without the threat of any further charges being preferred against you as a result of your involvement in ANC related matters?

MR MAFU: Yes that is correct.

MR DEHAL: And then in paragraph 11 of the next page you deal with an aspect that we've already covered but I'll just read that for completeness. You say that as a matter of clarity your attorneys advised you that paragraph 10(b) on page 14 of the bundle is an interpretation of your amnesty application and that the last paragraph thereof relates to the deceased having admitted to you that he was the only one who killed your brother and your father and that this was the reason why you caused his death. You then say that you deny ever having said this. You say that ...(intervention)

MR MAFU: Yes, that is so. I do not agree with that, it is not a correct statement that I made.

MR DEHAL: You then say that a reading of the relevant part of your original application reads otherwise.

MR MAFU: That is correct.

MR DEHAL: You say that you are sorry for the death of Mr Mkhize in the next paragraph and you ask for forgiveness from his family?

MR MAFU: Yes that is so. It was not my intention for him to die but it was because of political reasons.

MR DEHAL: You say that you believe that he was a legitimate target in that he was responsible for the killing of your comrades, he was an informer and one who endangered the lives of the ANC members?

MR MAFU: That is correct. That was the reason which led me to believe that he was indeed a legitimate target.

MR DEHAL: Thank you. Mr Mafu, this gentleman, Mr Cyril Shezi, who you refer to as one who is within the ranks of the ANC in your area, you remember him don't you?

MR MAFU: Yes I do.

MR DEHAL: After your arrest did Mr Shezi visit you in prison?

MR MAFU: Yes they supported me very much, they visited me regularly.

CHAIRPERSON: Who is"they"?

MR MAFU: That is Cyril Shezi, Bongando Vele and Inganiso Shezi.

MR DEHAL: Did Mr Shezi or any of the others altogether ever discuss with you your impending trial on the murder charge of this deceased and how you should approach it?

MR MAFU: Yes they did discuss it and they advised me on how to approach it.

MR DEHAL: Now before I deal with what advice was given to you, Mr Cyril Shezi, did you see him as senior to you in the rank of the ANC in your area or junior to you?

MR MAFU: I regarded him as senior and this was because he an educated person who understood more than I did.

MR DEHAL: You say he advised you on how to approach the defense. What did he tell you?

MR MAFU: He said I should advise the court that the deceased practised witchcraft and that was the reason why many of us were killed. This in itself was not the truth because the deceased was an informer who was instrumental in us being attacked by people from other areas.

MR DEHAL: Did you take this advice seriously and did you adopt that approach in your defence during your criminal trial?

MR MAFU: Yes I regarded his advice as important because he was an educated person who understood better about court matters as well as about the organisation.

MR DEHAL: For that matter, as you've mentioned already in your statement, your brother was killed in a car accident a few days before the deceased was murdered or executed but you in your trial said that your brother was killed by witchcraft at the hands of the deceased?

MR MAFU: Yes that rumour had been mentioned before, even before the death of the deceased by my family.

MR DEHAL: Did other comrades in your area arrested on charges of this sort ever used witchcraft as a defence to your knowledge?

MR MAFU: Yes some of them were arrested before me.

MR DEHAL: And do you know what success rate they achieved as a result of that defence?

MR MAFU: Well they were acquitted that is why I also felt that it would be a good idea to use that difference in court because I had hoped that I would also be acquitted like the rest of them.

MR DEHAL: You were convicted of murder and sentenced to death. You received the death penalty which was subsequently commuted to life imprisonment, correct?

MR MAFU: That is correct.

MR DEHAL: And you are presently serving your sentence as life imprisonment and held at the moment at Westville Prison?

MR MAFU: That is correct.

MR DEHAL: Sorry Sir, bear with me? Thank you Sir.

Mr Mafu, is it correct that you were shown only late today a statement allegedly deposed to by Mr Cyril Shezi the one you talked of, that this is - Mr Chairperson, this is not contained in the bundle, I don't know whether a copy is available to you?

MR MAFU: Yes I was shown this statement.

MR DEHAL: It's a five page statement. If you do not have copies - you have, I see.


MR DEHAL: Thank you.

JUDGE DE JAGER: Your copy, could you read the right hand column for instance?

MR DEHAL: Not very legibly, no. I have a problem with that on all my pages.

Mr Mafu you have ...(intervention)

JUDGE DE JAGER: I'm sorry, could we - ours have been cut off, the end of each line. Have you got a better copy perhaps?

MR MAPOMA: No Chairperson, unfortunately mine as well.

CHAIRPERSON: I understand it was faxed to us and this is a result of the fax machine.

MR DEHAL: Mr Chairperson, judging your copy, looking at it from here it would appear as though mine is substantially more legible than yours. I have no difficulty in you using mine, my only difficulty is I've made lots of notes and annotations all about it.

JUDGE DE JAGER: No, I know somebody represented Mr Shezi and he in fact announced himself at our offices. Perhaps he could be contacted and be informed about the problem and that he should send us a better copy or even the original?

MR MAPOMA: Yes I'll try to do that Chairperson.

MR DEHAL: May I proceed Sir? Thank you.

Mr Mafu, this statement of Mr Shezi's - sorry, may I just deal with that statement? You have no difficulty with him distancing himself from Operation Vula for you agree he was not a part of Operation Vula to your knowledge, is that correct?

MR MAFU: That is correct.

MR DEHAL: But you say you have difficulties with him distancing himself from having given you instructions to execute the deceased because you insist he gave you instructions?

MR MAFU: Yes I do have difficulty with that.

MR DEHAL: Do you agree with the ANC stance on witchcraft killing as is contained in his statement. I know you don't have a copy before you but if you recall I read it out to you. He says the ANC did not agree with the killing of persons who dealt with witchcraft or purely premised on witchcraft?

MR MAFU: Yes ANC policy does not dictate that people that practice witchcraft should be killed.

MR DEHAL: As a leader in the ANC as you've outlined earlier you understood that and disciplined your cadres on the same understanding, didn't you?

MR MAFU: That is correct.

MR DEHAL: Sorry, bear with me Sir? Thank you Sir.

Finally, Mr Mafu, are you aware of Radio Freedom, what it is, Sitchabas and what they are? If you are please tell us?

MR MAFU: Could you please repeat the question?

MR DEHAL: Mr Mafu, are you aware of Radio Freedom, what it is, whose voice it is and Sitchabas, the document, what it is and what it relates to? If you are please tell us?

MR MAFU: Yes I'm aware of that. Sitchaba is a publication that educated us on how to conduct ourselves, how to deal with our enemy and how the organisation operated.

MR DEHAL: And Radio Freedom?

MR MAFU: Radio Freedom used to discuss issues on how to gain our independence.

MR DEHAL: Mr Chairperson, thank you very much, that's the evidence of the applicant.



MR PANDAY: Mr Chairperson, before we go any further. I like to know what is the progress in the interpretation of page 6?

MR DEHAL: Well I've been seated here all the while as my learned colleague well knows, I've not done anything further in that regard. I will certainly after this matter adjourns endeavour to do so.

CHAIRPERSON: Well the young lady went out, I thought to attend to it but she hasn't come back and I can't see anyone else in the office sitting here at the moment.

MR DEHAL: I don't mind sending my assistant to go and check.

CHAIRPERSON: Could you? It's Debby, Deborah.

MR DEHAL: Deborah Quinn.

CROSS-EXAMINATION BY MR PANDAY: Mr Chairperson, if I may proceed? I'll endeavour to lead the - actually cross-examine the witness, the applicant, from page 11 insofar as the answers his disclosed to the relevant questions and let's see to what point does that take us.

MR DEHAL: May I suggest Mr Chairperson, least it be argued that my learned colleague was placed ill at ease, he perhaps should aspects that are not so contentious, on aspects that are directly relevant to these pages and the interpretation thereof, if he has any?

MR PANDAY: Well I intend endeavouring to question the applicant insofar as the interpreted version is from page 11 onwards ...(intervention)

CHAIRPERSON: The only one that is being challenged in 10(b).

MR PANDAY: Well Mr Chairperson, the applicant seems to mention that he does not agree with the correctness and truthfulness of the interpretation, that's to embrace pages 11 to 17 I think it is?

JUDGE DE JAGER: But can't you deal with another aspect for instance? Exhibit B, the statement of Shezi in the meantime?

MR PANDAY: As Mr Chairperson pleases.

Mr Mafu, you mentioned that you trained in Transkei. For how long did you train there?

MR MAFU: It was a year and 9 months long.

MR PANDAY: And in what year did you go to Transkei.

MR MAFU: I first went there in 1987.

MR PANDAY: You say 1987?

MR MAFU: Yes in November.

MR PANDAY: Now to be recruited as an MK member did you first need to be a member of the ANC?

MR MAFU: Yes the people who were recruited into MK were ANC members.

MR PANDAY: Right now ...(intervention)

JUDGE DE JAGER: Mr Panday is it disputed that he was a member of the ANC, that he was a member of MK?

MR PANDAY: Well we're merely trying to establish that Mr Chairperson, his membership. If Mr Chairperson will allow me to phrase the next question and we'd be able to move forward and establish as to whether he was ...(intervention)

JUDGE DE JAGER: Yes because if you haven't got any evidence contradicting that, it's no use wasting time, hours and hours asking about - on a fishing expedition to find out whether in fact he joined in September or November of whatever the date may be.

MR PANDAY: As Mr Chairperson pleases. Sorry and may I just say that I think it is important to establish whether his membership of the ANC has been contested, it seems to me it wasn't in the papers.

And Mr Mafu, when did you return to the Port Shepstone area?

MR MAFU: I first returned in 1990.

MR PANDAY: And when you returned in 1990 who were you under, who was your leader?

MR MAFU: It was Cyril Shezi and Doctor Kweli in the Port Shepstone area.

CHAIRPERSON: Sorry, who was it?

MR PANDAY: Doctor Kweli from what I understand.

CHAIRPERSON: Well before we go on can I just clarify something which I may have missed earlier, did you say you first went to the Transkei in 1987?

MR MAFU: That is correct.

CHAIRPERSON: For training as a member of uMkhonto?

MR MAFU: That is correct.

CHAIRPERSON: But in the statement that you've given us today you said you became a member of the ANC in 1988 which is correct?

MR MAFU: Must have been a mistake, I first joined the ANC in 1985 but I only joined MK in 1988.

MR PANDAY: Mr Chairperson, I did not want to interject, now that he's given the answer may I just place on record that my assistant in formulating this statement had intended that sentence to mean that he became a member of Operation Vula a wing of the MK in 1988 as opposed to joining the ANC in 1988. Forgive the ambiguity?

Mr Mafu, you said you were under Mr Shezi and Kweli? Now who identified Mr Mkhize, the deceased, as a legitimate target?

MR MAFU: It was Cyril as our commander who mentioned this in a meeting.

MR PANDAY: Now is that Cyril Shezi you refer to?


MR PANDAY: Now has your attorney showed you the statement by Cyril Shezi?

MR MAFU: Yes I did see that.

MR PANDAY: And I would refer you to paragraph 6, I want to read it out to you. Mr Shezi in paragraph 6 states the following, he says that:

"I wish to further state that I knew the late Ndukuzepi Mkhize as a person who was respected in the community especially by adults that used to visit my stepfather, Mr Mabu Mjla at home."

Now isn't that in total contradiction to what you say ...(indistinct) as I did find is in Mr Mkhize's target?

MR MAFU: I do not see any contradiction there because he is only referring to the relationship between his father and the deceased not about the incident itself.

JUDGE DE JAGER: Well perhaps paragraph 7 then?

MR MAFU: Yes, let me then read paragraph 7 for you. Paragraph 7 says:

"Whilst they deny any involvement in giving orders or ...(indistinct) the killing of Mr Mkhize, I'd also like to give the following clarity with regards to the political situation."

Now firstly, Mr Shezi makes it known that this man was a respected man. He thereafter distances himself from ...(indistinct) any killing. You on the other hand say the total opposite. Now if Mr Shezi was your leader why do you think now he says the total opposite of what you say?

MR MAFU: I wouldn't know where he gets that from because we worked very closely together but I have not seen him for a long time and we have not been in contact so I'm not in a position to say why is saying whatever he has written there.

MR PANDAY: When you worked together with Mr Shezi what was your relationship with him in the organisation?

MR MAFU: We related as well as I did with other comrades in the ANC. I am not in a position to say whether I was closer to him than to other comrades because we were all working together.

MR PANDAY: Now what sort of information was related to Shezi, as you say, to identify the deceased as the legitimate target?

MR MAFU: He was informed that the deceased had attempted to stab me with an assegai on three occasions before. He had come to my room as well and on that occasion he was with his stepfather, with Mr Shezi's stepfather and they had damaged property at my home and harassed my wife and children as well as the fact that when comrades were attacked or injured he was ...(indistinct) implicated.

MR PANDAY: The deceased stabbed you with an assegai, damaged your property and harassed you?

MR MAFU: He did not stab me but he attempted to do so but unfortunately I fled. On the occasion that they came to my house he was in the company of other IFP members. Even Cyril's stepfather was present and at that time he was an Induna.

MR DEHAL: Sorry Mr Chairperson, within the purview of cross-examination that proposition would be unfair. It does not put it totally as he said it earlier, he also said that when comrades were attacked and injured he, the deceased, was always implicated.

MR PANDAY: Objection Mr Chairperson, this is under cross-examination. We're trying to establish what sort of information was relayed to the head, Mr Shezi. Now under cross-examination the applicant has introduced evidence to the effect that he was also attacked and this was really to Mkhize. Now we're merely going on and that will be followed by the next question, if Mr Chairperson will allow me to pursue that line of questioning?

MR DEHAL: All I am saying is that having got the answer he then repeats, Mr Panday then repeats "so you say" and then he repeats only two of the three propositions in answer, he repeats the first part saying "so you say the deceased stabbed you about three times" and he damaged property at your house but he does not say the last part and in fairness to this witness you've got to repeat that last part as well where he says comrades were generally attacked and injured and this deceased was always implicated.

JUDGE DE JAGER: Perhaps he would be coming to that one still?

MR PANDAY: Well maybe before I continue, what was the name of Mr Shezi's stepfather?

MR MAFU: His name is Shede.

MR PANDAY: And the surname?

MR MAFU: He was Shede Mavundla.

MR PANDAY: Now you also mentioned that other comrades were attacked by deceased, is that correct?

MR MAFU: Please repeat that question?

MR PANDAY: You also mentioned in your evidence that other comrades were attacked by the deceased, is that correct?

MR MAFU: Now that is not completely correct. The deceased was implicated in the attack of comrades. He had something to do with their attacks.

MR PANDAY: Now when you consulted with your attorney and you drafted Exhibit A, that is the statement you handed in today, why did you not tell your attorney that the deceased also attacked you and your family?

MR DEHAL: Sorry Mr Chairperson, he certainly told me that, I didn't include it in the statement, it was drafted last night, he told me that day. I was actually conferring with my assistant on and on, we were trying to establish what aspects we should lead him on. This is an aspect I did not ...(intervention)

MR PANDAY: With due respect, Mr Chairperson ...(intervention)

MR DEHAL: Sorry can I just finish? I'm placing on record that it was honestly told to me and I am saying that I did not deal with it.

MR PANDAY: No Mr Chairperson, I don't know whether the attorney for the applicant will be giving evidence as to whether the evidence now elicited under cross-examination was in fact what he was told now, it's going to place the attorney in - we'd rather hear the answer from the applicant as to why or did he tell the attorney or not and that would place us in a better position to establish what really took place and if he did, to answer that Chairperson quite simply, you say yes or no?

MR MAFU: I did tell my attorney but it appeared that I had to inform him of that yesterday so that it would be incorporated into my statement.

MR PANDAY: When did you inform your attorney of that?

MR MAFU: Today when we had discussions.

MR PANDAY: Now ...(inaudible)

" As the courts would not have accepted the true version of the incident, I was forced to rely heavily on the aspect of witchcraft activities of the deceased and his alleged involvement in my brother's death."

Now what was the true version of the incident?

MR MAFU: The truth is that he was not killed merely for the reason that he practised witchcraft but for the reason that he was against the ANC, he was a member of the IFP and he did whatever he could to harass the ANC and stop the activities of the organisation. He even forbade his children to attend ANC meetings or to involve themselves in our activities.

MR PANDAY: Now you said he forbade his children to join the ANC? How old were his children at the time?

MR MAFU: I do not know their ages but they were not very young. For instance Kenneth was about 16 and the two girls, Wanasi and Nandi were my age mates although I'm not certain of their correct age.

MR PANDAY: Now besides Mr Mkhize forbidding his children to join the ANC, him attacking comrades, what other ...(intervention)

JUDGE DE JAGER: Sorry, what was your age at that stage?

MR MAFU: I was 28 but I said I was 22 in court.

JUDGE DE JAGER: So you as a 20 year old man, a 28 year old man instructed a 16 year old boy to pour petrol on his father, is that correct?

MR MAFU: Yes I did because that was an instruction that had been given to me, it was not just my instruction but it had been a decision that had been taken collectively and I would not have gone against that decision.

JUDGE DE JAGER: Who instructed you that the boy in particular should pour petrol on his father?

MR MAFU: It was the commander, Cyril Shezi.

JUDGE DE JAGER: So where did he give you that command?

MR MAFU: At the meeting where we discussed the elimination of the deceased. He said it would be a good idea if the son who actually pours the petrol over his father so that we are not heavily implicated because the son would be more implicated than ourselves.

MR PANDAY: Mr Mafu, how did Kenneth come to be at these meetings?

MR MAFU: He was an ANC supporter at the time so he had to be at the meeting because it was not that he would be exempt from attending the meeting just because the subject of that meeting was his father.

MR PANDAY: Who else was at this meeting?

MR MAFU: It was comrades from the youth league. I can mention a few but I cannot name all. It was, I can mention Vusi Mafu, Tandiso Vesi, Cyril Shezi, Bongani Mdovela as well as Baba Mkhize, as well as Jabulani Mkhize.

MR PANDAY: Is it correct that at this meeting Kenneth told the organisation his father disapproved of him being a member?

MR MAFU: The deceased's children had once mentioned to us that their father disapproved of them joining the organisation but when we enquired as to the reasons for that we did not get any response that is why we also started to follow his movements closely.

CHAIRPERSON: But you knew this man, you've just been telling us, to be an IFP leader who attacked ANC people and you didn't know why he didn't want his children to join the ANC. Are you being serious with us?

MR MAFU: The fact that I knew that he was an IFP member did not necessarily mean that he had to forbid his children from joining the ANC because even in my family my father is an IFP member or was an IFP member but he did not forbid me from joining the ANC because he was not at war with the ANC.

CHAIRPERSON: But you told us, my note is that you didn't give the true version in court when you said witchcraft, the true version was that he was IFP and that he opposed ANC activities and forbade his children from joining the ANC? Do you remember telling us that?

MR MAFU: Yes I do.

CHAIRPERSON: So this was a man who opposed ANC activities?

MR MAFU: Yes he was opposed to ANC activities.

CHAIRPERSON: Well surely in that case he would be opposed to his children joining the ANC if he was opposed to their activities?

MR MAFU: As far as political affiliation is concerned everyone has a right to join a political organisation of their choice because even his children were not forced to join the ANC, we just talked with them and asked them to do so. Therefore it was not right for him to forbid his children from joining an organisation of their choice and his refusal for them to join the ANC indicated that there was something not right about him.

MR PANDAY: Mr Mafu, who is Babalo Mkhize?

MR MAFU: He is a member of the deceased's family.

MR PANDAY: Was he an ANC member?

MR MAFU: Yes that is correct.

MR PANDAY: Now tell me did Kenneth Mkhize attend all the meetings of the ANC?

MR MAFU: He would attend some and some he would not attend because you may sometimes not have the opportunity to attend a meeting, for instance if you are busy or if you are a student but he would attend meetings.

MR PANDAY: Is it correct that he had stopped attending for a period of two weeks at least?

MR MAFU: That is not correct because we had held a meeting the previous day and his father was killed on the following day and he was present at that meeting.

MR PANDAY: Now do you recall Kenneth Mkhize giving evidence in court?

MR MAFU: Yes I do recall that, he was a State witness.

MR PANDAY: Now in his evidence he says on page 27, the bundle of documents, I'll read it to you. This is what Kenneth tells to the court. For about two weeks after he had ceased attending meetings for about two weeks he was approached by Babalo Mkhize and ...(indistinct) and asked why he stopped coming to the meetings. Would that be correct?

MR MAFU: That question was put to him at that very same meeting that we held not that he was approached or fetched from his home.

MR PANDAY: So you deny that he was approached by Babalo Mkhize?

MR MAFU: I do not dispute that he questioned him. What I do dispute is that he was approached somewhere. That question was put to him at that very same meeting where his father's elimination was discussed.

MR PANDAY: What was Babalo Mkhize's role in the organisation?

MR MAFU: He was in the disciplinary committee.

MR PANDAY: And who did he take orders from?

MR MAFU: I was his senior.

MR PANDAY: Now Kenneth further tells the court that he told him that it was because his father did not approve on the sunday before the deceased was attacked Babalo told him that because his father had disapproved of his membership of the comrades he was going to be burnt? Now isn't Kenneth's version quite different from what you say took place at this meeting?

MR MAFU: Babalo did mention that in the meeting because the subject of Kenneth's father's death was being discussed.

MR PANDAY: Where was Cyril Shezi at the time?

MR MAFU: He was at the meeting.

JUDGE DE JAGER: Who was the chairperson of this meeting?

MR MAFU: It was Kangiso Uvisi.

CHAIRPERSON: Who, would you repeat that again please?

MR MAFU: Kangiso Uvisi.

JUDGE DE JAGER: Wouldn't it be the custom that the commander or the leader of the ANC in that area would chair the meeting?

MR MAFU: Yes that person would be in charge of the meeting because even the people who chaired or the people who were in charge at that meeting had been instructed by him to do so. So he is the person who had issued out instructions on who was to be responsible for what task.

MR PANDAY: Who issued the instruction as to who had to be responsible for what task?

MR MAFU: The commander Cyril Shezi.

MR PANDAY: Now why in particular did Shezi not chair this meeting?

MR MAFU: It was his decision to elect those people to chair the meeting because those persons were - the people who normally chaired youth meetings because Cyril himself did not normally attend our meetings.

MR PANDAY: Now is it correct to assume then that the person who chaired the meeting will issue the order to either attack, kill or not attack or not kill?

MR MAFU: That is not so. The person who issued an instruction to attack would be the commander even if that commander was not present at a meeting but if he had issued such an instruction this instruction would be carried out, not necessarily the person who was chairing a meeting.

CHAIRPERSON: Well when did he issue the instruction?

MR MAFU: He issued it at the same meeting that Kenneth was present and that was on a Tuesday preceding the day that the deceased was killed.

MR PANDAY: Now do you know that Kenneth will testify that his father was a practising Christian and was not part of any witchcraft and was not part of any political organisation as you say. Can you comment on that?

MR MAFU: That is not correct because Kenneth's father came to my house and he was in the company of other IFP members and Induna and they almost killed me had my mother not intervened. I may have been killed on that day, they even damaged my property, my wife and children were chased out. So it is incorrect for him to say that his father was not politically involved.

MR PANDAY: You said your mother intervened, what did she do?

MR MAFU: She asked them what have I done because the deceased insisted that I should be shot and she told them that she was going to take the matter to the police if they kill me and because my mother was an IFP member they listened to her and informed us that my family, myself, my children and my wife should leave the area. They damaged my house and I had to leave and go there with my in-laws.

MR PANDAY: Now when your mother intervened where were you?

MR MAFU: I was seated and at that time there was nothing I could do because they were all around me, they surrounded me.

MR PANDAY: Now I stand to be corrected but when you earlier on mentioned that the deceased attacked you or tried to stab you, you managed to escape? Isn't that a bit different from what you say to us now?

MR DEHAL: The correction there, Chairperson, sorry, is the following. The witness had mentioned that there were at least three attempts made by the deceased to attack him, to kill him, that he had escaped from those occasions. This he is talking about is a separate incident when they had come to his home, damaged his property and there said to his mother that they wish to shoot him.

JUDGE DE JAGER: A fourth occasion then?

MR DEHAL: Yes he only mentioned there were at least three occasions.

JUDGE DE JAGER: Yes but couldn't it have been one of the three? Isn't your explanation perhaps wrong?

MR DEHAL: That's a probability.

JUDGE DE JAGER: Perhaps I'll leave it to the witness to explain?

MR DEHAL: If that's the anomaly, yes.

MR PANDAY: Mr Chairperson, the way I understand it is that the applicant gave his evidence that he was attacked, his property was damaged and his family was harassed.

CHAIRPERSON: Well my note is that "he tried to stab me with an assegai three times. He came to my house with Shezi's stepfather and attacked. He damaged my property and harassed my wife and children. He did not stab me as I ran away" but I'm not sure that that " he did not stab me" was not a question " why didn't he stab you on any one of the occasions?"

MR PANDAY: Mr Mafu when was the first time that the deceased attacked you?

MR MAFU: In 1986 he tried to stab me. I was on my way from my in-laws and I was passing by his house and he tried to stab me as I passed his home and I fled and reported the incident at home. On the second occasion the same thing happened. On the third occasion I was at his home because I had been summoned by his wife for who requested me to assist her to damage some structure on which they're going to build a house. On that occasion the deceased became aggressive and tried to attack me. I had to abandon whatever I was doing for the wife and leave home. These incidents happened one after the other. On the last occasion he came along with other IFP members attacking our home. That is when they destroyed my house, chased myself and my family.

MR PANDAY: Now Mr Mafu, how long or how far did the deceased live from you?

MR MAFU: The deceased is our neighbour and we are separated by a hill but we are close neighbours and we used to be good neighbours before the political conflicts started.

MR PANDAY: Now when exactly did the political conflict start?

MR MAFU: As I mentioned earlier I first joined the ANC in 1985. From that time onwards the relationship between myself and the deceased soured because he learnt that I was not part of their organisation any longer. When I was growing up I didn't have any knowledge about the ANC so when I learnt about it and joined and my neighbour discovered that the relationship between us soured.

MR PANDAY: And even with all that relationship turning sour his wife still called you to assist him?

MR MAFU: As neighbours we used to visit one another. Even up to his death I used to be in constant contact and had good relations with the members of his family because we did not have any personal grudges, there was no personal conflict between us. The conflict and the incident that happened was caused by political strife not because of personal reasons. Even during the conflict itself I used to go and see members of his family because I did not have any problems with them.

MR PANDAY: Now your brother's death, how was it caused?

MR MAFU: I do not know which brother you are referring to.

MR PANDAY: Well I'm talking about the brother you refer to in paragraph 7 of your statement:

"I then saw this as the best opportunity to ask the deceased whether he did in fact practise witchcraft and kill my brother."

MR MAFU: My brother had been knocked down by a car in St Michaels.

MR PANDAY: Now what made you believe that the deceased practised witchcraft to kill your brother?

MR MAFU: It was what the deceased said after my brother's death. I've got letters to believe that he was implicated because the deceased, he'd come to my home and we discussed my brother's death so what he told me on that occasion led me to think that he may have been implicated.

JUDGE DE JAGER: Well tell us what he told you, did he say I gave him muti or what did he say? Why did you believe he killed him?

MR MAFU: When he arrived he asked me on how my brother was killed and I explained to him that he had gone to town with my mother and he had been knocked down by a car and he said yes my brother should have been killed because he had distanced himself from him or we had removed my brother from him because he used to be his herd boy.

MR PANDAY: Now this made you angry?

MR MAFU: It made me think because if it had made me angry I would have done something to him right there and there but it made me think and I had to think about it deeply, that is why I also - it also came to my mind when we discussed it with my family he also felt or he thought that he might have had a hand in my brother's death.

MR PANDAY: Now after your family thought that he might have had a hand in your brother's death, what did your family decide?

MR MAFU: The family was not very much involved in this because the family, the involvement and that, when they removed my brother from the deceased's home, when we met to discuss his death it was not with my family but with the ANC.

MR PANDAY: Now why did you have discuss that brother's death with the ANC?

MR MAFU: It was a serious problem that I had to discuss with the ANC because had I gone on my own to approach the deceased or to discuss with him the very same problem, if for instance we had ended up fighting with the deceased it would have been regarded as bad on my part not to inform the organisation of my movements.

MR PANDAY: So you needed to use the organisation to attend to the problem?

MR MAFU: It was not that I was going to use the organisation to solve my problems, I lied to inform the organisation on my problems even if they were not going to assist me in any way because if I did not inform them, if I was a person who did not inform them on my problems, they would not be there for me when I needed the assistance of the organisation.

MR PANDAY: But this was a personal problem, why did you have to inform the organisation? You mentioned that the deceased was angry because you removed your brother as his herd man, but that's a personal problem, that's not political? Why did you have to go to an organisation?

MR MAFU: What I can say is that if I'd been somebody else I could have even attacked him then and there when he uttered such words about my brother. The reason that I went to inform the organisation was because I realised that should I do something it should be known by the organisation because it might lead to greater strife, it might lead to something bigger that might eventually involve organisations.

MR PANDAY: So if the organisation got involved this could have hid your personal grievance or your personal problem, would that be correct?

MR MAFU: I went to discuss the matter with organisations so that I could also be advised on how to regard the matter. I trust members of my organisation, I trusted and had faith in their opinions. That is why I approached them not that I was actually doing that so that they would do something about it. They would have assisted me in advising me on what to do about the problem.

MR PANDAY: Who did you speak to in the organisation?

MR MAFU: I did not speak to one particular person because when the deceased came to my home and uttered these words I was in the company of other people so I did not call any one person aside but I just mentioned it in a meeting.

MR PANDAY: No you haven't answered my question, let's go through this again. You went to the organisation for advice, that is correct?


MR PANDAY: When did you go to the organisation for advice?

MR MAFU: That was after they deceased had said those words.

JUDGE DE JAGER: And then you were asked to whom did you speak and then you came with the story that you didn't speak to any person in particular but you went there for advice. Who gave you that advice?

MR MAFU: It was not important who was going to do the advising but it would be anybody who had an opinion or who could offer advice.

JUDGE DE JAGER: You went there, to whom did you speak? Who was the person you spoke to?

MR MAFU: I would say the person who responded was Gangiso Vesi.

JUDGE DE JAGER: Now why couldn't you give us the answer in the first place? Why beat about the bush?

MR MAFU: I would apologise for that but the person did say something to me was Gangiso.

MR DEHAL: Right, sorry Sir, with respect, as I understand it, his version, his evidence is that he attended a meeting and he raised it generally at the meeting, he did not speak to anybody specific but that Mr Vesi responded.

JUDGE DE JAGER: Oh, you went to the ANC office to ask for advice and then he said no he spoke at his house when it was mentioned and didn't mention it to anybody in particular, that was a different occasion but then it was put to him "your evidence was that you went to the ANC to ask for advice?" and we only want to know who gave him that advice?

MR DEHAL: Then he says "I raised it at the meeting generally" and the Vesi answer is the person who responds at the meeting, not the person he speaks to at the meeting but that he raises it generally to all persons at the meeting.

JUDGE DE JAGER: Right carry on.

MR PANDAY: Now what advice did Gangiso Vesi give you?

MR MAFU: Gangiso said I should not concentrate or forecast on what people say. He said we maybe investigate or take a closer look at what that person says where it emanates from before we take any action.

MR PANDAY: Now your brother do you recall on which day he died? What was the date?

MR MAFU: It would be difficult to recall the date because I have spent a lot of time here in prison so I do not remember a lot of things.

MR PANDAY: Let me re-ask you the question. How long after your brother's death was the deceased murdered?

MR MAFU: It could be a week or two.

MR PANDAY: Now Gangiso said that we must effectually jump to conclusions, we must first look what people say before we do anything, is that correct?

MR MAFU: That is correct.

MR PANDAY: Now what other investigation did you conduct to establish how your brother died?

MR MAFU: It ended there, I did not do anything else but the deceased continued being involved in activities that indicated that he was a supporter of the IFP and he was involved in activities that harassed the ANC but we did not concentrate on my brother's death nor carry out an investigation.

MR PANDAY: How were you sure that the deceased used witchcraft in your brother's death?

MR MAFU: I did not have any concrete proof except for what he said because I did not witness him giving my brother any muti. The only thing that raised my suspicions was what he uttered.

MR PANDAY: Now ...(intervention)

CHAIRPERSON: Sorry before you go on, there's one issue I'd like to clear up, the problem arises, in the judgment as to your trial the judge says apparently quoting your evidence that you said people came to fetch you from your home to go to a meeting and you said you did not want to go because your brother had been run over the day before? Is that correct?

MR MAFU: I did mention that in court but it was not the truth because I was the person who was acting in politics, I'm the person who used to organise meetings.

CHAIRPERSON: But why lie to the court about when your brother was run over?

MR MAFU: That court was not trustworthy, I've got no trust then because they were an apartheid court even if I told the truth it did not matter.

CHAIRPERSON: The problem, gentlemen, is that my experience in the past, if prisoners do not arrive back at Westville Prison at a prescribed time they frequently find they don't get fed and there are other problems. I don't think, I didn't see them getting any food here at lunchtime so I don't want us to be responsible for that again. You'll be some time still with this witness won't you? So if we sit an extra half an hour now it won't help us very much and I think we will now have to adjourn this matter till tomorrow morning. What time gentlemen?

MR PANDAY: Half past nine is fine.

MR DEHAL: Whatever time suits you Chair.

CHAIRPERSON: The purpose is to enable us to conclude this witness. We will then go on to the other matters being heard by a different tribunal which will implicate the other people from Westville Prison so we can tomorrow clear up that side and we can then go back to this one.

MR MAPOMA: Chairperson, I'm sorry, in the light of this I suggest that we start at 9 o'clock tomorrow morning.

CHAIRPERSON: Right 9 o'clock. Wait a bit, who is the senior Westville officer here? Can you have them here at 9 o'clock tomorrow morning? Good, we will adjourn till 9 o'clock tomorrow morning. I'm obliged to you for that assistance.

MR DEHAL: May I just raise this Chair because the applicant Tom Madlala is a client of mine, I'm very indebted to you being as perceptive, they have not had lunch, all the prisoners approached me to say that they believe the TRC generally provides lunch and I said that's history so I wonder whether ...(intervention)

CHAIRPERSON: Perhaps we can make arrangements if history repeats itself tomorrow.

MR DEHAL: Thank you.

CHAIRPERSON: We'll adjourn till 9 o'clock tomorrow morning.