ON RESUMPTION: 18TH FEBRUARY 2000 - DAY 5

CHAIRPERSON: Right, we're now proceeding this morning with the application of Mr Ngema, is that correct?

MR MAPOMA: That is correct, Chairperson.

JUDGE DE JAGER: Could you kindly assist us whether you could come to an agreement about the date of the second assault, whether it was on the 30th or whether it was on the 1st July because then there would be an intervening day?

MS REDDY: Mr Chairperson, according to what I read in the correspondence and after taking instructions from my client it appears to be clear that the second incident occurred on the 1st July 1993.

MR PANDAY: Thank you Mr Chairperson, I've also taken instructions from my client with regards to the date. He says he recalls the first incident taking place also on the 29th, he may be mistaken as to the date of the second incident and he won't dispute it if it's on the 1st July.

JUDGE DE JAGER: You see I think - I want to put it to you and you could discuss it with your client, he was called out of bed, he was still sleeping on the morning and he proceeded, so when did he hear that the others died in the meantime? And he has testified later that he has been aware of the deaths before the second incident so it seems as though there was still a day between the two incidents?

CHAIRPERSON: Well also is it possible to ascertain from the hospital, the police, the post-mortem reports and what have you as to when the deceased died because it's seems to be probable that the news would have gone round the district very quickly. If they died on the afternoon of the 30th it seems likely that they wouldn't hear till that night or the next morning if they died on the 29th the same day then one might have expected them to have known?

MR MAPOMA: And if we look on page 2 of the bundle for the date of the event it says July 1993.

JUDGE DE JAGER: The father of the deceased was quite adamant that it was 1st July.

MR PANDAY: Thank you Mr Chairperson. Mr Chairperson, my client advises me with regards the dates in question, he says he got to know about the dates of the first two persons on the next day. He's not too sure whether that was either in the morning or in the afternoon and after having that information they then proceeded the next day to apprehend the ...(indistinct) and it was so in respect of the date he won't dispute that it may very well be on the 1st July.

CHAIRPERSON: That would make it the 1st, there was the first killing or the first assaults, the people landed up in hospital, the next day he heard and the day after that was ...(intervention)

MR PANDAY: But he can't confirm as to whether he heard about it in the morning which was the latter part of the day.

JUDGE DE JAGER: Are there any other witnesses?

CHAIRPERSON: Sorry, before we - is there some further information that has become available? We'd like a short adjournment for a few minutes so you can inform the Evidence Leader about it. Do you want a short adjournment?

MR MAPOMA: Yes Chairperson, just five minutes.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Right, what is the position?

MR MAPOMA: Thank you Chairperson for the indulgence. Chairperson, yesterday I indicated that I may call one of the implicated persons in the matter after they had indicated to me that they are willing to testify on the account of events during the event in question. Unfortunately they are not here at this moment but I indicated to them perfectly well that it's important if they are still willing to testify they should be here at 9 o'clock because we are starting at 9 o'clock. We have gone past now thirty minutes from that time and in the circumstances I don't intend calling them.

CHAIRPERSON: Was there evidence of sufficient importance to warrant an application to the Committee for us to call them, not to request them to volunteer but to subpoena them to give evidence. Was the evidence of such a nature?

MR MAPOMA: There was no evidence of such a nature Chairperson. In fact it's only that they themselves have volunteered to me that they would want to testify if need be and they were considering the matter and otherwise ...(intervention)

CHAIRPERSON: What I was asking is did they tell you what they were going to say? Was what they were going to testify about of sufficient importance to warrant subpoenaing them?

MR MAPOMA: Yes, what they told me what to say, what they intended saying, but it is my view Chairperson that it does not warrant that they be subpoenaed for that purpose. All that they said is that they wanted to confirm the version of the application concerning those events, that they were there, some of them and to confirm the version of the applicant of and concerning the victims in this matter and that is all.

JUDGE DE JAGER: Wouldn't that be of importance where his version is disputed by the other witnesses?

MR MAPOMA: Well to a certain extent it would but I was just weighing the extent to which it is important.

MR PANDAY: I think he just walked in, the witness concerned. I think it's Stanley.

MR MAPOMA: Yes, in the light of that Chairperson then I would request that we stand down again, unfortunately.

JUDGE DE JAGER: Well call him, he's there. If it's the witness let him go to the witness stand and let's hear what he's got to say?

MR MAPOMA: No, I propose just a short adjournment because I didn't consult thoroughly with him.

JUDGE DE JAGER: Well I don't know whether you need to consult thoroughly with him in order - if he's got something to say, he's been here, he's listened to the evidence and he could sit down and we could ask him what he knows about this.

MR MAPOMA: No, the situation Chair is that I was speaking to these persons in groups. I don't even know their names now, they just highlighted to me what they want to say.

CHAIRPERSON: Well let's call that gentleman that's just come in. Could you stand up please? Do you understand - can you hear me.

MR MAKATINI: Yes.

CHAIRPERSON: And do you understand English?

MR MAKATINI: Yes.

CHAIRPERSON: I understand that you may be able to give evidence about what happened, do you wish to do so?

MR MAKATINI: ...(inaudible)

CHAIRPERSON: Well I think we should just call him because you are not here to make a case, you are here to put the available information before the Committee. I can understand the applicant's attorney wanting to consult with somebody before he calls him because he is here to represent someone.

MR PANDAY: Mr Chairperson, I have spoken to the witness briefly yesterday and I don't foresee a problem. You may continue with him.

CHAIRPERSON: Right.

STANLEY MAKATINI: (sworn states)

EXAMINATION BY MR MAPOMA: Where do reside Mr Makatini?

MR MAKATINI: In Umkababa.

MR MAPOMA: Were you resident there during the dates surrounding the events that we are dealing here with in this hearing?

MR MAKATINI: Would you please repeat your question?

MR MAPOMA: During June/July ...(intervention)

CHAIRPERSON: Sorry, let's do it a different way. Have you been sitting here during the hearing of evidence yesterday?

MR MAKATINI: Yes I was.

CHAIRPERSON: And did you hear the applicant, Mr Ngema, giving evidence about certain events that took place?

MR MAKATINI: Yes I did.

CHAIRPERSON: Were you residing at Umkababa at the time?

MR MAKATINI: Yes I was.

CHAIRPERSON: Carry on.

MR MAPOMA: Were you a member of any political organisation?

MR MAKATINI: Yes I was and I still am of ANC.

MR MAPOMA: Were you a member of the leadership of the ANC during that period?

MR MAKATINI: Yes I was and I am still.

CHAIRPERSON: You were? I didn't hear what he said he was?

MR MAPOMA: He said he was a member of the leadership of the ANC and I was just about to ask what portfolio.

What portfolio if any did you hold for the ANC at Umkababa during that period?

MR MAKATINI: At that time I was a member of the Executive Branch of ANC, even today I am still.

MR MAPOMA: Was the applicant a member of the branch executive?

MR MAKATINI: The applicant was a member of ANC and he was a chief marshall, he was reporting direct to the Executive Branch Committee of ANC.

MR MAPOMA: What was the attitude of the community of Umkababa during that period relating to the police of that area?

MR MAKATINI: The relationship was not good at all the reasons being, the first one would be we had other comrades who died, who had been killed by the police. If I can quote names it will be Sipole Thuli, Mketwha Mimela, ...(indistinct) and others were just shot even though they survived they got injured but they were never killed. Therefore we, community and residents of Umkababa, we never had any trust towards the police of that area. Because of those reasons criminals became in numbers because even though they committed crimes they were never arrested.

MR MAPOMA: Just slow down to allow the interpreters to interpret. Okay, you may proceed?

MR MAKATINI: Sometimes after a certain incident the community will report this to the police and police will never come in time. We as African National Congress, we understood their behaviour. We understood that the reason they were doing so it was because sometimes the same police were accompanying attackers. Like in 1991 police accompanied attackers and 18 people were killed and even Oliver Tambo attended that funeral and another incident which led to the community not trusting the police it was in 1992, 18 January, people were attacked and many people died. We as ANC people we were disappointed.

Other things which happened, I'll put an example, like the people who came here yesterday, some of them who came here yesterday to give evidence, we as the community we decided to take the law in our hands to punish them because police were not arresting them and we thought that maybe police were working together with these people but we never got a certain answer on that.

MR MAPOMA: Who are these people that you are referring to, those whom you say the police were not arresting?

MR MAKATINI: One of them is Sibusiso Luthuli, he came here before this Commission yesterday and another one is Sandile, Etosho Ncomo, him also came before this Commission to give evidence. In others who didn't come here, but these were the people who were disturbing the peace in the community. If I can put an example, we tried to put water or to bring water in Umkababa and these people were disturbing the vehicles which brought the development in the area and they were hijacking those vehicles and we realised that it was going to be difficult for the development in the community.

JUDGE DE JAGER: When were these vehicles hijacked? When was the vehicle hijacked?

MR MAKATINI: In 1991 and in 1992 there was a project to bring water in Umkababa. That was not the end, it went to shops being robbed and they will use cars to go to schools and demonstrate on how they drive those cars, like they're in a car race. We didn't know exactly why these things were happening but we suspected that police were behind these criminals. We held two marches and two meetings. The first meeting which we held was in Umkababa Holiday Resort. There were too many people there but there was one specific person that I remember, Mr Shlomo, the one who came here yesterday to give evidence and that meeting, what was on the agenda was the criminals who were operating in the area and disturbing the ANC. Mr Shlomo took a stand on that day. It was on a Sunday and it was raining. I can quote his words, his very words I still remember. He said:

"Leaders, leave everything in our hands. We are tired of criminals. I myself, I do have criminals in my own house therefore you should leave this matter in our hands to discipline."

Unfortunately for Shlomo at that time he didn't know he was going to lose his son. After that we held another meeting. Mr Jeff Radebe was the chair in that meeting. We discussed at length about this and we solved almost things like crime but then we experienced another problem, we decided to march to Umkababa Police Station to give them a petition because we didn't - we wanted them to know that we didn't need two policemen. One is Mr Breytenbach, he was from Umkumazi Police Station and there was another female, her name was Maggie Govender. These were the two policemen who didn't work co- operating with the community.

We had another march, we requested police to come and fetch the memorandum from Umkababa Police Station. There we were talking about the criminals that the community was tired of living with criminals and criminals who are not being arrested by police.

MR MAPOMA: Now were you present on the event that took place on the 29th June, the first incident?

MR MAKATINI: I wasn't present in the first incident but when I got home in the evening I was told what happened.

MR MAPOMA: Were you told about who were assaulted on that incident?

MR MAKATINI: Yes I was told.

MR MAPOMA: Are those people who you were told were assaulted falling in the category of those who were perceived as criminals by your community?

MR MAKATINI: What I can say is that there were many criminals in the area and criminal activities were rife and these were some of them and these people who were assaulted used to steal cattle and goats for sale. On that day they were disciplined, this is what I was told.

JUDGE DE JAGER: Why were they disciplined, what did they do wrong on that day?

MR MAKATINI: What I heard was that three females came, they went to see Mr Ngema and told him that they were gang-raped on the previous night and then the community decided to get hold of the criminals and some of them they didn't catch them but they disciplined those that they caught.

JUDGE DE JAGER: Were they - the discipline that was envisaged did that include killing?

MR MAKATINI: We agreed before we took action that for the ANC to be trusted by the community and to be loved by the community, we agreed that we were going to punish criminals and since these people knew about this, they knew that they were going to be punished. For instance one of the people who came here yesterday to give evidence was one of the people who was punishing criminals but it was ...(intervention)

JUDGE DE JAGER: Was it ever the policy of the ANC to kill people who had committed crimes?

MR MAKATINI: The policy of the ANC says people should be free and under no circumstances it says people should be killed. I think these people died not because the aim was to kill them but the intention was not to kill them and I think even the applicant clarified that.

MR MAPOMA: Now about the second incident which you were involved in, when did that incident take place, what date was it to your knowledge?

MR MAKATINI: It was in the morning on the 1st July. Mr Ngema came and told us that Tokozane Makaza came and reported that she had been raped by Sandile Ncomo and Sandile Ncomo pointed a gun at her and took her and raped her even though she didn't want, it was against her will and when she told us this or when she told Joe this we decided that we should accompany Joe and go to the female's house, or Tokozane's house and find out more information and also we went to Etoshe. We crossed the freeway to area 38 because we suspected that we could find him there.

At that time when we were looking for him and we couldn't find him he was in the toilet but as we were leaving we saw him coming out from the toilet and then when we started talking to him, we questioned him about what Tokozane said and he said it wasn't true so we took him to Tokozane because we wanted Tokozane to say whether it is really him. We took him to Makonga, we first went to Tokozane's home, we didn't find her there. We found her somewhere where we were told she would be and we questioned Tokozane as to whether this was the guy who raped her. Sandile kept on denying that he was the one.

MR MAPOMA: Sorry, when you questioned Tokozane whether the person you heard, that is Mr Ncomo, that is the person who raped her, did she confirm that? Did she positively identify the Mr Ncomo as the person who she alleged raped her?

MR MAKATINI: I remember very well, she started crying and then she pointed her finger straight to Sandile as she was crying and said "yes, it is him."

MR MAPOMA: Okay, you can proceed.

MR MAKATINI: After that we were then certain that it was him because Tokozane had positively identified him. She also said that he pointed a gun at her and I heard him yesterday as he was giving evidence that he had a gun. As we were going with Etoshe we were together with Mape. We started talking about what Etoshe did and another guy came and said Mape had stolen his car and at that moment he didn't even know where his car was. When Etoshe Ncomo was being assaulted I took the knobkierrie from Ngema because I didn't want Mr Ngema to kill him but we wanted just to discipline him.

MR MAPOMA: Where did that take place, the assault now?

MR MAKATINI: In a place called Ngloma.

MR MAPOMA: Is it a sports ground?

MR MAKATINI: No it is not but it is on top of a hill and there's mango trees and avocado trees around that area.

MR MAPOMA: Do you know Themba the person who we are told in this Committee complained about the motor vehicle against Mape?

MR MAKATINI: Yes I do know him.

MR MAPOMA: We have been told that he told you, when I say you I mean the group of people that were there, that he and Mape had settled the matter regarding the motor vehicle. What do you say to that?

MR MAKATINI: As I've already mentioned before is that at that time I was busy with Etoshe. There were too many people, there were more than 200 there but the person we were busy questioning was Etoshe Ncomo.

MR MAPOMA: What I want to find out, the evidence that is before the Committee is that Themba said there is no need to take the matter any further with Mape because he and Mape had resolved the problem regarding the car. In a way he did not continue with the complaint against Mape regarding the motor vehicle so there was no need to proceed with Mape. What do you say to that version?

MR MAKATINI: Yes he did say so that is why we continued to punish Etoshe not Mape but whilst we were busy with Etoshe or administering punishment to Etoshe, we saw Mape running away. I am not certain until today why he ran away, whether those people who were with him threatened to kill him or to punish him.

MR MAPOMA: When he ran away did you participate in those who pursued him?

MR MAKATINI: As I've already explained that at that time I was busy questioning Sandile Etoshe about what he did and also I was telling him that he knows what was going to happen to him if he had done something like that, I was busy with Etoshe. As he himself already mentioned this yesterday.

JUDGE DE JAGER: Didn't you question him at the house of the lady who was raped, Thokazani?

MR MAKATINI: We started questioning him from the time we caught him. We told him that Thokazani had reported that he had raped her. He disputed that. On our way as we took him we kept on questioning him and we told him that he must tell the truth. We went to Thokazani's home. We found her mother and we were told where to find Thokazani.

JUDGE DE JAGER: Could you tell us at what time did you arrest Etoshe? What was the time round about?

MR MAKATINI: I am not certain about the time but I think it was past 7, 8 o'clock somewhere there, between half past seven and eight in the morning.

JUDGE DE JAGER: And at what time did you reach the hill where he was punished?

MR MAKATINI: At about half past nine to 10 o'clock because we delayed because we first had to go to Thokozani's school looking for her.

JUDGE DE JAGER: Now you're at the hill, you start questioning him, at what time did you start punishing him?

MR MAKATINI: It was after he disputed everything what Thokozane had said.

JUDGE DE JAGER: Was that at 11 o'clock, 12 o'clock? What time round about? How long did this questioning last before you started with the punishment?

MR MAKATINI: We took an hour questioning him, I think at about half past eleven, I think that's when we started assaulting him.

JUDGE DE JAGER: Right and when did you finish assaulting him, what time?

MR MAKATINI: In the afternoon I think, lunchtime.

JUDGE DE JAGER: When did Mape start running away?

MR MAKATINI: If I can just estimate I think he ran away at about quarter to twelve.

JUDGE DE JAGER: And what report did you receive back after he ran away? Did the people report to you what they've done to him?

MR MAKATINI: No one came back but then we heard that the people who ran after him killed in the nearby forest.

JUDGE DE JAGER: How far was he killed from the place where you were?

MR MAKATINI: I will estimate and say it's about seven to eight metres away.

JUDGE DE JAGER: That's about from here to where you're sitting, is that right?

MR MAKATINI: As I'm sitting here it is from here to the robots where you take the freeway.

JUDGE DE JAGER: But that's not seven or eight metres, do you know what's a metre?

MR MAKATINI: I was just estimating, I'm not sure but the distance is from here to the robots.

CHAIRPERSON: I have some difficulty with that, I would think about 150 to 200 metres?

MR PANDAY: It is less than half a kilometre from here to the robots.

CHAIRPERSON: Yes.

MR PANDAY: Yes that's more or less.

MR MAPOMA: When Mape ran away where was the applicant?

MR MAKATINI: At the time we were together still continuing to question and punish Etoshe.

MR MAPOMA: Did the applicant not leave you to go and assist in pursuing Mape?

MR MAKATINI: I do not remember him leaving Etoshe going away to pursue Mape.

JUDGE DE JAGER: So is that correct he had nothing to do with the death of Mape?

MR MAKATINI: As far as I can remember we were still questioning Etoshe although there were many people around but I remember he was remember he was around Etoshe all the time.

JUDGE DE JAGER: You didn't hear him ordering people to kill Mape and you people, did you approve of the killing of Mape or not?

MR MAKATINI: Please repeat that question?

JUDGE DE JAGER: Did he or you yourself order any people, commanded them, go and assault Mape or kill him?

MR MAKATINI: As I explained before the policy of the ANC does not condone killing. No one amongst us issued that order to kill him.

JUDGE DE JAGER: Did anybody issue an order to assault him, to assault Mape or to punish him?

MR MAKATINI: No one issued that order to the extent that the applicant himself did not issue that order because Themba had already explained that they had discussed the matter and resolved it.

JUDGE DE JAGER: So there was no instruction or no order given to punish Mape and you didn't approve of the punishment or the killing of Mape?

MR MAKATINI: That is correct.

JUDGE DE JAGER: Was any attempt made to prevent the people from killing Mape or assaulting him?

MR MAKATINI: At that time we were still busy speaking to Etoshe. We just saw him running away and people pursuing him.

JUDGE DE JAGER: Didn't you call on the people to come back and leave him alone?

MR MAKATINI: There would have not have heard us because they were a bit far from us.

JUDGE DE JAGER: Thank you.

MR MAPOMA: To your estimation how many people were there that was at the place?

MR MAKATINI: There were more than 200.

MR MAPOMA: Those who chased Mape, were they part of the group that was interrogating these people?

MR MAKATINI: Some of them had just been standing around they were not part of the group that was questioning Etoshe.

MR MAPOMA: Now I suppose you know all the people who were assaulted during that day?

MR MAKATINI: That is correct.

MR MAPOMA: Were they members of any political organisation?

MR MAKATINI: Please repeat that question?

MR MAPOMA: Were those people who were assaulted members of any political organisation?

MR MAKATINI: Yes as far as I know.

MR MAPOMA: What organisation was it?

MR MAKATINI: As far as I know they were members of the ANC although there were some amongst them who had defected or who were defecting to the PAC but from the initial stages they were members of the ANC.

MR MAPOMA: The evidence from the victims has been that there was no PAC at that time in that area, what do you say to that?

MR MAKATINI: It was in existence at that time to the extent that some of their leaders approached us as the youth league and requested to see us because they had been operating underground so that they may be known in the community therefore at that time there were members of the PAC because when we questioned them on the number of members that they had they responded to the effect that there were quite a number of members.

MR MAPOMA: Who are those members of the PAC who approached you?

MR MAKATINI: The people who approached us were Dobi Ntula and he was with some people from Umlazi to whom he reported. From what they said, they said they do not want the members to be harassed or intimidated that is why they came to ask, to inform us that they as an organisation existed in the area.

MR MAPOMA: Did they tell you of who was a member or members of the PAC in that area?

MR MAKATINI: They did not inform us of that, they were hoping that we could hold a meeting where they would inform us of that. Unfortunately that meeting did not take place.

MR MAPOMA: How did you know then that the victims were members of the PAC?

MR MAKATINI: As I mentioned before some or many of them were initially members of the ANC but there were some that defected to the PAC for instance Mr Sithulu. When we held a march and we went past him he saluted us in the PAC salute which was an open hand.

MR MAPOMA: Was there anything known as the Umkababa Development Trust at Umkababa?

MR MAKATINI: That is correct.

MR MAPOMA: Did applicant have anything to do with this Umkababa Development Trust?

MR MAKATINI: That is correct. That was an organisation that was responsible for the development of Umkababa because we as the ANC were a political organisation and they were responsible for the development of the area.

MR MAPOMA: What was his role or portfolio, the applicant, in the Umkababa Development Trust?

MR MAKATINI: He was a chief marshall and as such if the meeting for a certain committee, you would sit at those meetings, you would have a role to play in the political organisation as well as in the development forum.

MR MAPOMA: Now finally, the applicant applies for amnesty, what is your view regarding his application for amnesty?

MR MAKATINI: In my opinion I would first send out a message to the families of the victims to tell them that Mr Ngema was not alone. When he performed this he was with other members of the community and we should all try to come together and reconcile so that we can build a better South Africa. I would not have a problem if Mr Ngema is given amnesty because he realised his mistake after the first incident. He went so far as to approach the families of those victims and he was in the company of the people who had taken part in the assault.

Secondly, we still welcome Mr Ngema as a community member of Umkababa as well as a citizen of this country. I would also like to thank those who said they supported his application for amnesty and also motivating others to reconcile and come together as Africans. The mistakes that happened then happened at those times of conflict and from the 27th April 1994 we started a new chapter. Let us now go on in that new direction.

JUDGE DE JAGER: Why didn't you people not go to the father of the deceased who gave evidence here and also apologise to the father of Mape? Why didn't you go to him and apologise to him too? You were involved with this incident, you were there, why didn't you afterwards go to him and apologise like the applicants have done in the other matters?

MR MAKATINI: What I can say is that everyone was still confused after that incident. Yes we should have gone to him but it did not happen because at that time we were just shocked at the news.

MR MAPOMA: Thank you Mr Makatini. Thank you Chairperson, no further questions, that's the evidence.

NO FURTHER QUESTIONS BY MR MAPOMA

CHAIRPERSON: ...(inaudible)

CROSS-EXAMINATION BY MR PANDAY: Just briefly Mr Chairperson.

Stanley, do you mind if I call you Stanley?

MR MAKATINI: That is my name. No I do not mind.

MR PANDAY: Okay. Stanley, could you explain to us if the ANC had not decided to take the policies on disciplining the criminals in the area what would have been the result of the community and the ANC, the relationship?

MR MAKATINI: Could you please repeat that question?

MR PANDAY: If the ANC in the area had not decided to take measures to discipline the criminals in the area, what would have been the relationship between the community and the ANC in the area?

MR MAKATINI: Let me first explain that when we refer to the community we are referring to the ANC. More than that it was obvious that no ANC member supported criminality, no one wanted to live in fear. Moreover it created a problem for the ANC for it to function effectively in the area because there were people who hindered the development of the area and because the Umkababa area was known to be an ANC stronghold, there were many of its enemies who would have done whatever they could do destabilise the effectiveness of the ANC in the area.

MR PANDAY: And if this criminal activity continued, would it have effected the following and the trust of the ANC?

MR MAKATINI: The community it would not be that they did not or could not trust the ANC but it was the community itself that decided that it was enough, it had had enough of the criminality of the rapes, of the housebreakings, of the intimidation that was suffered by schoolchildren and also of the drugs that were distributed. Therefore it was the community that took the decision to stand up against these criminals.

CHAIRPERSON: Yes but if the ANC had done nothing, the criminals were just being allowed to continue, wouldn't the people living there say "well, the ANC isn't competent to govern"? Do you understand what I'm putting to you? What we have heard the ANC was the dominant political group in Umkababa?

MR MAKATINI: What I can say let us not distinguish between the ANC and the community but yes, the community trusted the ANC and had faith in the ANC to liberate them and that included being able to live freely and being able to walk freely in your area and we can discuss more even within the perimeters of that liberation.

MR PANDAY: Now Stanley, when Etoshe and Mape were apprehended or arrested by the group of people, now ...(intervention)

CHAIRPERSON: Nobody has said Mape was arrested. He had not said Mape was arrested.

MR PANDAY: Correction, correction, Mr Chairperson.

Stanley, when Etoshe was arrested by the group did Mape accompany Etoshe freely?

MR MAKATINI: Let me first explain that Etoshe was himself not arrested. We just came to him, talked to him and Mape accompanied him of his own violation because they were friends.

MR PANDAY: Now when the questioning was going on with Etoshe about the raping of Thokozane, the behaviour of the crowd of people that were there, can you explain their behaviour? Were they angry, were they calm?

MR MAKATINI: They were very enraged because a day before the three girls had been raped by boys from this area the same thing had then happened with regards to Thokozane. They were very angry about it.

MR PANDAY: Now would it be safe to say that the community was now totally angry about the crime levels at Umkababa?

MR MAKATINI: That is correct, I have mentioned before that there were two marches that took place where the residents of Umkababa were complaining about the high levels of crime as well as the meetings that were held where they unanimously said enough is enough.

MR PANDAY: If for example had Etoshe attempted to run away do you think the community would have chased him as well?

MR MAKATINI: Could you please repeat the question?

MR MAKATINI: Do you think on that day on the 1st July, if Etoshe tried to escape do you think the community would have chased him as well?

MR MAKATINI: I think so because he had to be disciplined since he had done something that went contrary to the rules and the policies of the struggle.

MR PANDAY: Do you also believe that the community was of the opinion that the people that were there to be disciplined were going to be disciplined by the comrades, by the ANC?

MR MAKATINI: Please clarify that question?

MR PANDAY: On the day in question when the community arrived with all of you they were of the opinion that all people that committed crime were to be disciplined, is that correct?

CHAIRPERSON: When the community arrived there there was one crime they were investigating, there was one person who had been blamed for it so how can they have a conclusion that everybody was going to be disciplined?

MR PANDAY: No, I'm leading to the following question, Mr Chairperson.

When the community got ...(intervention)

JUDGE DE JAGER: Mr Panday, the community is not applying for amnesty.

MR PANDAY: No, I accept that the community is not applying for amnesty.

JUDGE DE JAGER: The applicant is applying for amnesty and according to the evidence he wasn't even involved in this killing at all?

MR PANDAY: Mr Chairperson, I accept what Mr de Jager is pointing out but at the same time I'm trying to show the basis that this community believed in the following.

JUDGE DE JAGER: Yes but even if - whatever the community believed, what offence did he commit?

MR PANDAY: Mr Chairperson, at the end of the day at the very least the thing will boil down to common purpose at the very least and the applicant ...(intervention)

JUDGE DE JAGER: No but he didn't have any common purpose, he himself said he didn't want this man to be killed? He didn't participate according to this evidence too? There can be no common purpose?

MR PANDAY: I concede Mr Chairpersons point but as I'm trying to point out Chairperson, that the basis had already been created for people to be disciplined and that the crowd who already believed in the comrades and the ANC were there to see the people were going to be disciplined and if anyone created any act out of the ordinary would have enraged the crowd further resulting in the incident with Mape. Thank you Mr Chairperson, I'll avoid that question and continue. I'll leave it for argument Mr Chairperson.

Now Stanley, tell me are you in any way related to the applicant?

MR MAKATINI: We are not related we are comrades in the struggle.

MR PANDAY: And do you believe that Mr Ngema was acting solely for the benefit of the ANC?

MR MAKATINI: Mr Ngema did not act just for the ANC but it was the community of Umkababa that was tired of being harassed and intimidated by fellow residents.

MR PANDAY: Thank you.

NO FURTHER QUESTIONS BY MR PANDAY

CHAIRPERSON: Does that conclude your questions?

MR PANDAY: Yes.

CHAIRPERSON: Thank you.

CROSS-EXAMINATION BY MS REDDY: Thank you Mr Chairperson.

Would you agree if I said to you that the Umkababa Police had a large area to service?

MR MAKATINI: Please repeat that question?

MS REDDY: Wouldn't you agree if I said to you that the Umkababa Police had a very large area within which to service in other words they had a lot of people to see to, lots of needs to look after?

CHAIRPERSON: Were there Umkababa Police? Isn't it Umkomaas Police?

MS REDDY: Mr Chairperson, I stand corrected but did the police in that area have a large area, have a big public to service?

MR MAKATINI: Yes I accept that the Umkomaas Police Station is small and they service at 250 kilometres. The next police station at Amanzimtoti is far and they do not service only Umkababa but also other areas that were mentioned by the people who came to testify yesterday.

MS REDDY: So couldn't that very well be the reason that the police took a long time within which it responded to complain?

MR MAKATINI: It may be but let us all understand that some of the police, as we marched against the police, there were people who behaved and acted in a manner that was unacceptable.

JUDGE DE JAGER: Ms Reddy, I think we'll accept they had a large area but we'll also have to accept that the perception in the community was that they were not serving the community to the best of their ability so as far as that is relevant for the applications we'll accept it.

MS REDDY: Okay, I actually have a problem accepting that because evidence was led that whenever a complaint was led it was positively responded to and to go further I would submit that after the first incident and the second incident the police positively investigated and the due court process followed so that is where my questioning is leading to.

JUDGE DE JAGER: Well I don't think it's really relevant as far as amnesty is concerned whether the police - it wasn't the police that did the killing or didn't do the killing, so as far as amnesty is concerned I don't think really it's relevant but you could continue but I don't think it's relevant either side.

CHAIRPERSON: Isn't the position those of us who have unfortunately have experience with these things over the years that the police force throughout the country was grossly under-equipped, that it wasn't a deliberate decision by the police not to go there for an hour and a half, that most instances they had one or two vehicles that would be engaged elsewhere and they just couldn't do more?

MS REDDY: I would entirely accept that.

During the kangaroo courts, who was the chief decision maker?

MR MAKATINI: At that time no one was responsible for taking decisions but Etoshe was being questioned about the offence that he had committed.

MS REDDY: Who actually suggested ...(intervention)

JUDGE DE JAGER: Sorry, I didn't hear the interpretation?

INTERPRETER: The witness said no one was responsible for taking decisions but Etoshe was questioned on the offence.

JUDGE DE JAGER: Thank you.

MS REDDY: And who actually suggested that Etoshe should be disciplined and in the manner in which he should be?

MR MAKATINI: I cannot state a formal recommendation except for that a member of the community suggested that he should be given ten lashes on the buttocks for that offence.

MS REDDY: Let me just take you back to the second incident and especially where you said something concerning the Mape killing. Did you actually decide at that disciplinary hearing that Mape was not responsible for the theft of Themba's car?

MR MAKATINI: Themba Ncobo explained that they had already discussed the matter with the deceased's family therefore there was no reason to continue questioning Mape because of Themba's explanation.

MS REDDY: The applicant in his evidence in chief very emphatically stated before this Committee that Themba said that his car was stolen, it was recovered in Empangeni, "I told Mape that he should be punished and all the comrades agreed." What is your response to that?

MR MAKATINI: As far as I can remember Themba did state that his vehicle had been stolen but had been recovered later but he did also explain that he had communicated with the family and discuss the matter. That is what I remember.

MS REDDY: So in other words you're telling me the version that the applicant related to this Committee is untrue because he stated and I quote:

"He should be punished and all the comrades agreed."

CHAIRPERSON: Can I interrupt? I think you should go back a bit further. My recollection is that somebody said that Mape had stolen Themba's car and driven it to Empangeni and that the applicant then decided it was necessary for Themba to be present and sent for Themba to ask him about his car?

MS REDDY: That is correct and what I actually related now came after that.

CHAIRPERSON: Do you remember the applicant saying that Themba should be sent for?

MR MAKATINI: Is that question directed to me?

CHAIRPERSON: Yes.

MR MAKATINI: Yes he did say that for the reason that Sonyaman had accused Mape of stealing Themba's car therefore it was proper to find someone who was going to confirm those allegations.

CHAIRPERSON: And as has been put to you the applicant says he told, he the applicant told Mape he deserved to be punished because Themba's car had been used to help the community and the members of the community agreed?

MS REDDY: And you just told us that you were there during the whole incident on the 1st July 1993?

MR MAKATINI: Please repeat that question?

MS REDDY: I'm just confirming what you said, you told this Committee just a while ago that you were there present during the whole incident on the 1st July 1993 and for you to have missed that seems very improbable?

MR MAKATINI: Yes that is correct.

MS REDDY: It could very well be that the applicant gave an untrue version of what occurred on the 1st July 1993?

MR MAKATINI: Well he related the incident as it happened then. It could be that he has forgotten some of the details because the incident happened a long time ago. The same applied to me.

MS REDDY: I'm actually not satisfied with the response but I'll actually proceed.

Do you have any concrete proof that the victims in the first incident were PAC besides the open palm salute by Luthuli?

MR MAKATINI: I do not have such proof because I'd never seen their membership cards.

MS REDDY: Thank you. No further questions.

NO FURTHER QUESTIONS BY MS REDDY

MR MAPOMA: I have no further questions.

NO RE-EXAMINATION BY MR MAPOMA

CHAIRPERSON: Thank you. Does that conclude the evidence?

MR MAPOMA: That concludes the evidence Chairperson, thanks.

MR PANDAY: Mr Chairperson, I'm not aware of any other witnesses.

CHAIRPERSON: And I noticed that you've given a note, you don't want to consult?

MS REDDY: No thank you.

CHAIRPERSON: Very well, should we take the adjournment at this stage and you can then address us?

MR PANDAY: Yes, that's fine Mr Chairperson.

WITNESS EXCUSED

CHAIRPERSON: Let's hear argument, if any?

MR PANDAY IN ARGUMENT: Thank you Mr Chairperson.

Mr Chairperson, firstly it's not in dispute that the applicant was the chief marshall or the leader of the community in the area. It is not in dispute there were problems in the area namely criminal activity and as a result of this criminal activity the community was being effected and that threatened the progress and growth of the ANC in the area. Now the applicant applies for amnesty namely two incidents that which occurred on the 29th June 1993 and the second incident which occurred on the 1st July 1993. I must point out initially the discrepancy with the dates in question but that was conceded by the applicant as to he may have been mistaken as to the second incident.

Now in dealing with the first incident, Mr Chairperson, you've heard the evidence that was led. The applicant was clear in what took place and for what reasons it took place. The victims called upon witnesses to explain what had taken place on the day in question and in the materialness of the evidence that was led, that was not disputed. The one witness that was called, the so-called eye witness, in his evidence he can't confirm as to why the incident was taking place. All he knows that he was there. He then tries to lead evidence to the effect that the applicant was assaulting the two persons who were murdered. These were the two persons with firearms and if one has to weight the probabilities at the same time, they would stand seated in the ground at the same time. Now if one has to weigh the probabilities of that, if two persons with a firearm were apprehended by the applicant that seems improbable to believe and one must accept that the applicant's version is more correct as to the sequence of events that took place on the day in question.

With regards to the incident on the 29th, Mr Chairperson, it's my respectful submission that the applicant, as the leader of the community, namely the people who followed the ANC policies, he was there to protect two people, two groups, that being the ANC itself and their objectives and policies and as well as people who trusted and believed in the ANC and if one had to fail in not protecting the community that threatened the growth of the ANC.

Now there's been evidence led insofar as the police response to the community, to the ANC and one must accept that during this period of time there were not good relations between the ANC. We've heard evidence by I think it's Mr Mia, one of the brothers, who testified that there was bias in favour of the IFP and not the ANC.

CHAIRPERSON: Well mustn't one have regard to the fact that this - we were coming towards the end of what had been in effect an armed struggle between the police and ANC. There had been very strong feelings for a number of years?

MR PANDAY: That is correct, Mr Chairperson, as such the relationships were not ...(intervention)

CHAIRPERSON: So the belief could exist with very little substantial evidence?

MR PANDAY: And that belief continued with the struggle that was being faced and Mr Chairman the applicant as a result of all these problems decided now we needed to discipline the people that threatened the organisation and as such as the chief marshall and the community decided that these people need to be disciplined and as such he was promoting the values of the ANC, the ANC did not support crime, they did not support trouble in the areas and as such as a member he was promoting such growth. It's my respectful submission that with regards to the incident of the 29th that the applicant qualifies for amnesty when the incident took place.

Now in dealing with the incident on the ...(intervention)

CHAIRPERSON: Is there not a possibility, this doesn't detract from the applicant's - that there was a complete misunderstanding on this incident of the 29th, that the two deceased were not aware of the fact that this was disciplinary proceedings, that they merely heard the noise going on and ran to the scene armed to see what was going on and to prevent attacks on their own people, that the applicant in turn did not realise why they were coming but saw armed men coming towards them so he felt he had to defend the members of the community and his people? So one doesn't have to make a finding that the two deceased were members of the PAC or anything of that nature?

MR PANDAY: One doesn't need to make - as the applicant quite clearly pointed out that their actions were being carried out on the basis of disciplining people who were conducting criminal activity, that was the rape of the girls in question and all other ...(intervention)

JUDGE DE JAGER: ...(inaudible) kill the rapists?

MR PANDAY: I concede that, I'll get to the point Mr Chairperson. And as the applicant led in his evidence is that once disciplining the people that they'd initially apprehended here comes the deceasedís threatening the people in the area and mentioning "you would not finish us", finishing us referring to the people and the groups that they belonged to not necessarily political groups but the groups that they belonged to. That was the applicant's evidence and as such as a result of this criminal activity the thing eventually flowed into the applicant defending himself from this would be member of the groups that were being disciplined. That's how I understood his evidence, Mr Chairperson.

CHAIRPERSON: But the point I am making that he may well have been mistaken in his assumption they were would be members of the group. They might have been honest members of the community who were running there to try to prevent what they anticipated to be an attack on members of the community which would explain them saying precisely what he said they said?

MR PANDAY: Well the applicant's evidence was that when the person shouted "you would not finish us" he directed his explanation to the people that they were being disciplined, not the community at large.

CHAIRPERSON: That's what the applicant thought but he may be mistaken, then they have come there. The point I'm trying to make is that it is not necessary and I'm very unhappy on the evidence before us in the light of the evidence given by the relations of the deceased that they were members of any underground criminal organisation?

MR PANDAY: I concede with what Mr Chairperson says that it may have been the mistaken belief as to what took place but at the same time there's also no evidence to the contrary to suggest what had in fact taken place.

Now Mr Chairperson, in dealing with the incident that took place on the 1st July I can foresee that one would have problems immediately with the death of Mape. Mr Chairperson, we've had the applicant's version as to what took place on the day in question. Here they had apprehended Etoshe for the raping of Thokozane. Mape accompanied them and whilst one was trying to deal with Etoshe, it was shouted out from one of the members of the community that Mape had something to do with the theft of the motor vehicle. The applicant states in his evidence that after hearing this he advised Mape that he also needs to be disciplined but at the same time one had sent for the owner of the motor vehicle, Themba, who comes in and confirms that the problem has been more or less resolved.

Now I'm sure the victims or the representation for the victims are going to immediately point out that the witness that was called on behalf of the applicant states that he can't recall an order being issued or not issued with regards to Mape but what one must bear in mind that the witness also stated that he cannot remember the exact sequence of events on that day in question and it's possible that this was also mentioned and obviously the applicant gave evidence as to what took place on the day in question.

Now in dealing with Etoshe the evidence is as such that there was ...(intervention)

JUDGE DE JAGER: We haven't got the problem with Etoshe, he's not applying for amnesty as far as or does he apply for amnesty as far as Etoshe is concerned?

MR PANDAY: I think it is the case Mr Chairperson.

JUDGE DE JAGER: But okay ...(intervention)

CHAIRPERSON: It's not in his application form, he refers to five people being assaulted, there were five people the day before?

MR PANDAY: I concede Mr Chairperson.

JUDGE DE JAGER: But even so as far as Etoshe is concerned I don't think we could discuss, you should tell us for what he's applying but we're concerned about Mape.

MR PANDAY: Now in respect of Mape Mr Chairperson it is obviously that the applicant concedes that he physically had nothing to do with the death of Mape but at the same time one must take into consideration that he in his evidence mentions that Mape needed to be disciplined. Now as I've mentioned that the witness who was called on behalf of the applicant mentions that he can't recall that and at the same time the witness also concedes that under cross-examination that he also can't remember as to what - can't remember as to every detail that occurred on that particular day in question.

Now if the applicant, if one is to go with the applicant's version that he initially confirmed that Mape needed to be disciplined then the applicant has created the basis for the actions that followed thereafter. He may have not been physically involved in the murder of Mape but his actions had already incited the crowd.

JUDGE DE JAGER: Would I be guilty of murder if I would say that rapist deserved to be punished and people would go on and kill him?

MR PANDAY: Well Mr Chairperson, one must judge it in the light of the community of the time, they were faced with problems of crime.

JUDGE DE JAGER: No legally Sir, we've got to do with the legal question whether he is guilty of an offence because he could only get amnesty if he is guilty of an offence?

MR PANDAY: Well Mr Chairperson, one is not too sure whether he was convicted on culpable homicide or murder in this matter. Unfortunately we don't have the judgement nor do we have the sentence before us to confirm what sort of conviction if ...(intervention)

JUDGE DE JAGER: Well even culpable homicide on that basis.

MR PANDAY: If his actions incited one to result in the death of someone, it's my respectful submission that he will be guilty as carrying out such an instruction and as such that is how the applicant is now involved in the murder or the death of Mape.

CHAIRPERSON: But his punishment is a whipping on the behind with a sjambok, that is what he anticipates.

MR PANDAY: I concede that Mr Chairperson but at the same time after having the crowd incited that one needs to be punished whereby one now flees from the scene in question it continues the message that discipline needs to be carried out and as a person ...(intervention)

CHAIRPERSON: But not killing, why should he foresee that decent clean living members of the community would commit murder, deliberate murder?

MR PANDAY: Well Mr Chairperson, as the person who incited such discipline, he ought to have foreseen that the possibility existed had a mob or the community ran after someone to discipline them that that person's life may have resulted in it being taken. It's therefore my respectful submission Mr Chairperson that as the leader of the area he incited such crowds and unfortunately that led to the death of Mape. It's my respectful submission that he ought to quality for amnesty as well in respect of the second incident. Thank you.

MS REDDY IN ARGUMENT: Mr Chairperson, Members of the Committee, audience, it is common cause that the applicant had actually taken the law into his own hands and by doing so he didn't improve the conditions in the Umkababa area but added to the corruption. Evidence was led by the witnesses and victims that during the two incidents in question the applicant played a chief role in the disciplinary action and if I could go further on that point, evidence was led that the applicant also acted on his own accord when assaulting the alleged perpetrators.

What will actually stop the applicant if he is granted amnesty here today in taking the law into his own hands yet again? We have heard evidence from the witnesses that they would be afraid if the applicant is freed.

Evidence was led by the eye witness and victims that they didn't see the two deceased, that's Mia and Chetswayo with firearms neither did they hear any gunshots and yet the applicant led evidence that the deceased had firearms and shots were fired. Further, his statements on both occasions were that when he saw that the deceased had the firearm he hid behind a tree without being seen and then decided to hit the deceased with a knobkierrie on the head and then disarmed the two deceased and thereafter the public continued the assault and thus the two deceased consequently died. Certainly that version doesn't hold water. We would accept the version that the applicant had disciplined the alleged perpetrators on the 29th June 1993 because of the alleged rape but what we certainly can't accept is the discipline of Mape Shlongwa because evidence was led that the excuse that the applicant used, that being the theft of the car, was incorrect.

There were also conflicts in evidence given by the applicant and the evidence given by the witness who corroborated certain bits of the applicant's evidence. The applicant said that it was decided at that kangaroo court that Mape should be disciplined because of the theft of the car and this was contradicted by the witness who stated that they decided not to discipline Mape because the issue of the car theft was resolved amicably between Themba and the deceased.

Further Mr Chairperson, the applicant was fully aware that two people had died as a consequence of the kangaroo court yet recklessly without remorse, without due consideration, he proceeded to do the very same thing on the 1st July and yet again an unjustified killing happened. It's on those bases that I ask the Committee to thoroughly investigate the material before us today in deciding whether amnesty should be or shouldn't be granted on those bases. No further submission, thank you.

MR MAPOMA IN ARGUMENT: Thank you Chairperson.

Chairperson, I would like to draw the Committee's attention to the fact that not only is it undisputed that the applicant was a member of the ANC and the chief marshall, it is also undisputed that he was a commander of the SDUs in that area. The activities of the SDUs, Chairperson, have been condemned or have been found by even the TRC to have been acts of gross violation of human rights. To this end, Chairperson, I would like to refer the Committee to Volume 3 of the TRC report on page 299 where the TRC says, I want to read this, Chairperson:

"The Commission finds that the ANC at a regional level in Kwa-Zulu Natal knew that the members of the SDUs were engaged in unlawful acts including killing, attempted killing and severe ill-treatment which constituted gross violation of human rights and that it failed to ensure that those responsible for such violations were disciplined or brought to justice. To this extent the ANC is accountable for such gross violations of human rights."

The reason why I'm quoting this, Chairperson, I want the Committee to take into account the applicant is one of those persons for which the ANC has been found accountable for gross violation of human rights. In a way those activities were activities which the ANC is liable for, which the ANC accounted for and took responsibility for.

Now coming to the question of what happened on that day which is usually referred to as the people's court, it must be born into account, Chairperson, that the applicant was a kingpin of what was happening there, if I may put it that way because of the chief marshall. He says in his evidence that:

"I told the community what has to happen of these people"

That was on the first day. On the second day as well he says:

"I told the people what I told them yesterday, what has to happen of these persons."

Then there was assault on Etoshe and then there's this question of Mape which seems to be a complicated one, so to speak. In his account the applicant says that Mape ran away, people chased him, he doesn't know what happened but it is my argument, Chairperson, that it cannot be said that simply because he says he doesn't know what happened of Mape it then follows that he does not claim responsibility of what happened to Mape. Unfortunately it was not put to him as to whether he associates himself or not with the consequences that befell Mape but if the matter is looked into in it's proper context and is looked into holistically, what is almost clear Chairperson is that there was a mob, the situation must have gone out of hand even though he presented himself initially as a person who was going to give direction, he lost control because he never chased those who were chasing Mape and stopped them and his action therefore triggered what resulted in the death of Mape. It will be remembered, Chairperson, that he was convicted in the Regional Court for the killing of Mape. That in itself in terms of jurisdiction shows that he was not convicted of murder of Mape but at most of culpable homicide.

JUDGE DE JAGER: Where could we find that, that he was convicted of culpable homicide?

MR MAPOMA: We can't find it Chairperson because we don't have the court judgment at this point in time but the jurisdiction of the regional court is not murder, murder cases are dealt with in the High Court.

JUDGE DE JAGER: No the Regional Court has the jurisdiction to hear murder cases?

MR MAPOMA: Oh, I made a mistake, Chairperson, I will leave it there, I will leave it there but the point I'm driving home is that whatever befell of Mape which made him lose his life, the applicant cannot be found not responsible for that because he is the person who triggered the community who were there. He told them that "you know what is going to happen of these people whom we are condemning now and then Mape ran away ...(intervention)

JUDGE DE JAGER: You say he had a common purpose?

MR MAPOMA: Yes, that's the point I'm driving home, Chairperson.

JUDGE DE JAGER: Yes.

MR MAPOMA: And he is accountable for that, he is responsible for what happened to Mape even though he might not have been there.

I will not deal with other issues, Chairperson, which have been dealt with. I think that is all Chairperson that I wanted to bring into account. Thank you.

MR PANDAY: Nothing further Chairperson.

CHAIRPERSON: Right, we'll take time to consider our decision. In the meantime if anything revolves around it, surely it would be possible to find out from the prison authorities what he was convicted of and sentenced?

MR MAPOMA: I will endeavour to do that Chairperson in the meantime, thanks.

CHAIRPERSON: Are we ready to proceed with the next matter we have to deal with today?

MR PANDAY: Mr Chairperson if we may just take five minutes adjournment to sort ourselves out?

CHAIRPERSON: Very well, five minutes.

COMMITTEE ADJOURNS

NAME: MAFANDO JOKONIA MAFU - (CONT)

APPLICATION NO: AM7921/97

______________________________________________________

ON RESUMPTION

MAFANDO JOKONIA MAFU: (s.u.o.)

MR DEHAL: Sorry, Mr Chairperson, in the Mafu matter we were at the stage when we had adjourned on the last occasion for Ms Deborah Quin to visit the Westville Prison. She has since given me copies of certain documents which she says she has managed to obtain from the file of Mr Mafu presently held at the Westville Prison. I've had regard to these documents, my instructions are that our position insofar as annexures C, D, F, G and H still stand. Additionally, Mr Chairperson, having ...(intervention)

JUDGE DE JAGER: C, D?

MR DEHAL: Sorry, may I go over that again? It would be C, D, the two applications or two additional applications, F, G and H, the three letters.

JUDGE DE JAGER: You are still denying that they've been sent by the applicant?

MR DEHAL: Correct.

JUDGE DE JAGER: Right, thank you.

MR DEHAL: And insofar as the documents that have now been given to me by Ms Deborah Quin, may I just make the following brief prime facie comments? Firstly, the cover sheet I presume we all have that as a cover sheet? The cover sheet ...(intervention)

CHAIRPERSON: Sorry, before you go on, have you got a bundle of documents?

MR DEHAL: I do.

CHAIRPERSON: Should we call that K?

MR DEHAL: K, indeed. On the basis that the document which, through you, Mr Chairperson, the applicant recorded his name and other details I see is marked J.

CHAIRPERSON: Yes.

MR DEHAL: There being no I.

CHAIRPERSON: No I.

MR DEHAL: Thank you. I don't know the order of K and the various pages but whatever the order be, the first page which apparently was taken off from the inside of the folder being a running diary recording the progress relative to the dates, the nature and the content of documents sent out, I have just the following comments to make in that regard.

Firstly, the file of each prisoner apparently follows the prisoner whichever prison he goes to. This I've established from the head of the Westville Prison, from the prison warders who are present here in this forum and from Ms Quin.

Secondly, the prison number of the prisoner is the same whichever prison he is in, in this case Mafu's prison number being 520633.

Thirdly, on the diary of events as recorded on the cover sheet, there is no reference to any of the three applications for amnesty except for the very first application namely those contained in the bundles, pages 1 to 10, for if you recall, Mr Chairperson, on page 10 of that bundle is the date 26 November, that being the date of the first application in the Zulu language and if you look on the bottom right hand corner of the cover sheet of annexure K you'll find in the sequential order the date 26 November 1996. Alongside that "Application Amnesty".

Now that's the only reference to an application for amnesty.

CHAIRPERSON: That is number 90?

MR DEHAL: Indeed. Well that's a better way of referring to it, thank you. If you look at the numbers 1 to 100 you'll find there is no reference to the other two applications namely annexure C and D, well to the best of my reading, I stand corrected.

Then you've got the three letters F, G and H, two from Pietermartizburg and one from Westville Prison but on the basis that the file is the same, it doesn't matter which prison it came out of, the dates are important, the 26th March 1997 for annexure H ...(intervention)

JUDGE DE JAGER: Where is that item number?

MR DEHAL: Sorry, that's not present in that cover of annexure K. So the point I'm making crisply is annexures F, G and H, to the best of my reading, are not referred to in annexure K.

CHAIRPERSON: Sorry which ones?

MR DEHAL: The three letters.

CHAIRPERSON: What about number 79?

MR DEHAL: My photocopy I cannot really read what the words are nor the date, it looks like 25th of something 1996 and it says "appli" something. Applicator.

CHAIRPERSON: 25th June isn't it?

MR DEHAL: Is it? Thank you. Application details?

Sorry Mr Chairperson, is that date the same as one of the letters? I see it's not but ...(intervention)

CHAIRPERSON: No, it's the same as an application.

MR DEHAL: Is it?

CHAIRPERSON: D.

MR DEHAL: Oh I see, D is dated 20th June though and this is dated 25th June and the other thing is, if you look at 26th November item 90, it records relative to the first application for amnesty in the bundle page 1 to 10 as being Application Amnesty. I wonder why here it says Application Details, if that what it says as opposed to Application Amnesty? Just bear with me Mr Chair?

CHAIRPERSON: Can be, I think it must because if you look immediately above 78 is Indemnity Application, isn't it?

MR DEHAL: Yes.

CHAIRPERSON: And 82 is Indemnity Hearing it seems to be.

MR DEHAL: Yes.

CHAIRPERSON: So this may be application details for the Indemnity Application?

MR DEHAL: Possibly, yes. Thank you. Mr Chairperson, the other comment I wish to make is this, pursuant to the consultations I held with the head of the Westville Prison and the warders here present and indeed with the applicant and I raised this with Mr Tom Mdlada, the other applicant I represented before his lordship Mr Mall, it seems clear that what does happen in regard to each prisoner is that when a letter and particularly an official letter like that to the Minister of Justice or to the TRC are sent, or applications are sent, copies of each of those are put into this file of the prisoner and cross-referenced by number to the schedule annexure K. Support for that submission is to be found in the fact that Ms Deborah Quin in the document she has brought has now also brought a letter written on behalf of this applicant Mafu which is the last or which are the last two pages of my bundle, a letter in handwriting addressed to the Minister of Justice dated 4th July 1994. Now Mr Mafu says that is a letter that was sent on his behalf, it was written by a co-prisoner of his, Mr Mafana Dlamini who was then on death row with him, you would see that that letter came out of Pretoria, it is not signed by him, what Mafana Dlamini did was tick his prison card in his presence and wrote the applicant's name and applicant's then prison number on that letter. But apart from those comments, I understand that all letters and applications of an official nature in particular are fully photocopied and kept in his file but originals are also kept in that file in regard to letters that are received by the prisoners. So if the prisoners lawyer were to write to him for example and the original of that letter is stamped by the prison and kept within the file. Like in this case for example if you look at the letter from the Commissioner of Correctional Services, Mr J A Knoesen, 97 on the annexure, that's called "Representations" you'll see on the photocopy of that original is here stamped by the prison, signed for by the prisoner and kept in his file. Now having regard to that ...(intervention)

JUDGE DE JAGER: Just as far as that is concerned, so this item 82 or 78 there should be copies of those applications in the file?

MR DEHAL: Yes, now what Ms Quin told me is that she did not make a copy of the entire file, there are in fact two bulky files.

JUDGE DE JAGER: You see because that couldn't relate to indemnity because Indemnity Act at that stage was repealed already in 1996. It was in fact repealed by this very Act of ours.

MR DEHAL: Yes except that apart from that comment which I accept, you'll find that in the bundle before us there is some document form A dated 12th November '92, Government Gazette date of course, dealing with indemnity applications.

JUDGE DE JAGER: Yes, that's previous.

MR DEHAL: Yes, agreed.

JUDGE DE JAGER: Long before '96.

MR DEHAL: Correct. Now I can't explain why they use the word indemnity here unless of course and I dare say this is just an observation I make as a lawyer, I've dealt with various indemnity applications and I know that some prisoners have been under the misguided impression that indemnity had been pursued, not being familiar with the fact that there was a cut off date ...(intervention)

JUDGE DE JAGER: Even lawyers these days still talk about indemnity.

MR DEHAL: Correct.

JUDGE DE JAGER: So it's not only the prisoners.

MR DEHAL: Indeed, indeed. So apart from that Mr Chairperson, my comments are the following or the summation of my comments are that these annexures which the applicant presently disputes namely C, D, F, G and H are neither referred to in his files nor are copies thereof in his files, nor is the ambiguity so wide as to arguably include the possibility of these documents being in his file or being referred to in his file. In the circumstances, it appears overwhelmingly obvious that those disputed documents are not his. Thank you.

Sorry, Mr Chairperson, I'm just reminded of further important comment that I ought to make and that is this. In the bundle itself, annexure K, cross-referenced with a number 90, application amnesty, is a document being a letter written out by Mr V Govender addressed to the Office for Indemnity, Immunity and Release, Private Bag X800, Pretoria, which refers to three prisoners, Mafu J Mfanu, this applicant, Mark Daniels and Eric Majia and also attached to it is a certificate signed by Mr V Govender relating to Mafu Mfanu. Do you see that Mr Chairperson? Shall I show you my copy?

JUDGE DE JAGER: Could you read the numbers of the pages, we didn't number the first page but we've numbered from thereon pages 1 up to 15?

MR DEHAL: If the order of our papers are the same this would be page 7, 8, 26th November 1996 and then the next page both have the number 90 on top of them. That number 90 cross-references with the first page 90 dealing with Application Amnesty. Now what Ms Quin has told us is this that the standing rules at the prison are the following relating to an application for amnesty. Apparently the TRC has an understanding with all prisons and prison officials on this. When an application for amnesty is made and this letter and the annexed certificate must be completed on behalf of the prisoner and kept in his file, now this you will see has been complied with relating to the application for amnesty admitted to by the applicant pages 1 and 10 of the bundle but no such letter nor certificate has been completed nor is contained within the bulky files of the applicant relative to annexures C and D, the other two purported amnesty application. Thank you Mr Chairperson, those are the comments.

CHAIRPERSON: No further evidence is to be led?

MR PANDAY: Cross-examination at that stage Mr Chairperson.

CHAIRPERSON: Very well.

CROSS-EXAMINATION BY MR PANDAY: Mr Chairperson, before I proceed for what it's worth I must point out is that unfortunately we've been given these bundle of documents with the registers and whatever and it has been noted that Ms Quin did not photocopy everything to allow us to really follow as to how this register has been compiled but as for what that is worth I'll proceed.

Mr Mafu, you confirm that your application exists from page 1 to page 10?

MR PANDAY: And that Exhibit E is a translation of that application?

MR MAFU: Yes.

MR DEHAL: Sorry Mr Chairperson, he does not have Exhibit E with him, he's not really familiar with the exhibit numbers. I see he answered yes, I don't know what you meant by that, I was just on my way to give it to him.

JUDGE DE JAGER: Yes I think that's been agreed to previously and it's common cause.

MR PANDAY: Now Mr Mafu, you mentioned that you were ordered by Cyril Shezi to carry out the attack on Mkhize, is that correct?

MR MAFU: That is correct.

MR PANDAY: Now on page 2 of Exhibit E, I'm going to read it out to you, the interpretation is as follows:

"We were not ordered by anyone in the organisation, we just decided as members as to what we should do to protect ourselves from the killers. The person that was sent by us to go and report our situation to the offices of our organisation was told that we had to protect ourselves was Cyril Shezi."

Is that correct?

JUDGE DE JAGER: Where are you reading?

MR PANDAY: Mr Chairperson, it's Exhibit E from page 2, paragraph 11, right at the bottom.

CHAIRPERSON: Paragraph 11(b)?

MR PANDAY: Yes.

JUDGE DE JAGER: Going over to the third page?

MR PANDAY: Yes Mr Chairperson. Is that correct Mr Mafu?

MR MAFU: Would you please repeat your question, I didn't understand it?

MR PANDAY: Paragraph 11(b) in Exhibit E there's a translation of your application. That simply says that nobody gave you orders, you acted as members and the person that was sent to go and report to the organisation was Cyril Shezi, is that correct?

MR MAFU: That is correct.

MR PANDAY: Now in your evidence you mentioned that Cyril Shezi was giving the orders to attack. Now why is it different here?

MR MAFU: Yes he is the one who gave us orders.

MR PANDAY: But over here you say that nobody gave orders, you had decided as members to defend yourselves?

MR MAFU: I meant that no one from the offices came and gave us instructions but what I meant was that Cyril went to the offices and then when he came back he came with this. In fact we took the decision together, he was with us, Cyril was one of us.

MR PANDAY: No this is not what this paragraph says. Cyril was only sent to report what you were doing, not to come back with orders. This paragraph says something else, not what you're saying to us now.

MR DEHAL: I just beg to differ with the last comment, Mr Chairperson, what he is doing is endeavouring to explain this paragraph. What he is saying is that Cyril Shezi sought orders from somebody in a more senior position whom Cyril Shezi had access to, return and there was a meeting and they together took a decision.

CHAIRPERSON: Yes and what is being put to him was that he said in his evidence that they were ordered by Cyril Shezi to do it? Not that Cyril Shezi provided them with information on the basis of which they formed an opinion?

MR DEHAL: That would be fair.

MR PANDAY: Now why is there a difference in your version Mr Mafu? First you say Cyril Shezi ordered you, now you say that Cyril Shezi went to come back with orders?

MR MAFU: Cyril was the one person who was going to the offices and he was one person we were listening to him. He's the one who went to the offices and came back and reported to us and then we took decision together with Cyril.

MR PANDAY: Now when did Cyril Shezi go to the office?

MR MAFU: On the very same day. He left in the morning. He came back at about 11 o'clock. That's when we sat down and decided on what to do.

MR PANDAY: Now when Cyril came back with the orders, what orders did he come back with?

MR MAFU: We were only told to protect ourselves. The people from the offices told Cyril to come back to us and discuss with us and see a way to protect ourselves. That's when Cyril said we should go and attack Mr Mkhize.

MR PANDAY: Now why exactly you had to attack Mr Mkhize? What was the reason to go and attack Mr Mkhize?

MR MAFU: He was one of the people who were fighting with us and he was a member of IFP.

MR PANDAY: Now the reason why you went to attack Mr Mkhize was because he was a member of the IFP and he was a person who was fighting you all, is that correct?

MR MAFU: Yes that is correct. Yes, that he was a member of IFP and he was also fighting with us.

MR PANDAY: Right now, do you recall the statement you made to your attorney?

MR MAFU: Yes.

MR PANDAY: And that was handed in as Exhibit A?

MR MAFU: Yes.

MR PANDAY: Right, now this is what you say in paragraph 7:

"In order to execute Cyril Shezi's instructions I, together with 200 ANC comrades, marched to the deceased's home. As we were approaching his home we met the deceased on the road. I then saw as the best opportunity to ask the deceased whether he did in fact practice witchcraft and kill my brother."

Now your instructions to kill him or attack him because he was killing IFP members and he was attacking you. Why did you talk to him about your brother? Your brother was not an ANC boy? You brother was in fact eight years old at the time?

MR MAFU: This is what he had already said to me and my family. I wasn't supposed to go there and speak to him. All I was sent to do was to be there and kill him.

MR PANDAY: You said this is what he said to you and your family, what did he say to you and your family?

MR MAFU: He said my brother wasn't going to die if he was still working for him.

MR PANDAY: Yes, that we understand you gave that earlier on in cross-examination but you went there to attack him on a different instruction. Then you go on to say further:

"I heard rumours from my family that my brother was killed in an accident a few days earlier, was bewitched by the deceased. The deceased refused to answer me."

Now in paragraph 8 you say the following:

"Upon arrival at his house my comrades and I started stoning the deceased with the intention to kill him and to give effect to Comrade Shezi's political instruction to us. It is possible that I then asked him further questions about the deceased's witchcraft and activity at this stage."

Now why did you take him back to his house?

MR MAFU: We didn't want to hide the fact that we had already killed him. In fact we knew in our area that if an organisation, if our members of the organisation killed someone you do not hide his body because we wanted it to be known.

MR PANDAY: What do you mean that "we in fact had already killed him"? He was still living when you took him to his house?

MR MAFU: We took him to his house because we were there to kill him therefore we wanted his body to be in his home. We brought him to his house in order to kill him there because he was guilty, in fact the community knew he was guilty and he was killed in front of everyone.

MR PANDAY: Did you not insist to see evidence of witchcraft?

MR MAFU: He admitted having muti in his home and when we arrived in his home he got inside the house to bring the muti but then when he got outside he didn't have muti with him, he had weapons and he started fighting. That's when they started throwing stones upon him.

MR PANDAY: Now when did you question him about the muti, when did he give you an answer?

MR MAFU: In the street when we first saw him in the street I questioned him about that and he gave me that answer. When we got to his home he had already told us that he's got muti.

JUDGE DE JAGER: Now did he come out of the house with weapons and started fighting you?

MR MAFU: Yes.

JUDGE DE JAGER: Why didn't you tell us that before? Why didn't you mention it in your statement?

MR MAFU: I think it was a mistake that I didn't put it but even in court I think I remember mentioning it. It was a mistake if I didn't tell my attorneys.

JUDGE DE JAGER: What weapons did he have?

MR MAFU: We were left outside and then he got inside. He brought the weapons and then he started fighting.

JUDGE DE JAGER: What, assegai, knives? Or tomahawk or what did he have?

MR MAFU: A spear and a bush knife.

JUDGE DE JAGER: Did he strike at anybody, did he hurt anybody?

MR MAFU: No, he couldn't because as he came outside people were ready then they started throwing stones on him and he fell down.

JUDGE DE JAGER: Could I ask you another thing? Was the deceased and informer?

MR MAFU: Yes.

JUDGE DE JAGER: What did he do?

MR MAFU: We will see him whenever we decided on holding a meeting and during our meetings we'll see coming with policemen and we will be helping them.

JUDGE DE JAGER: And was that the reason why he was killed?

MR MAFU: It is one of the reasons.

JUDGE DE JAGER: Now why didn't you mention that this morning when you were asked what was the reason for killing him because that's an important factor isn't it?

MR MAFU: He did not give me an opportunity to enumerate all of the reasons. He did not ask me one by one specifically. If he had I could have explained everything.

JUDGE DE JAGER: You see there's no details given at all of his activities as informer in your application or in your statement. It's mentioned at the beginning and never referred to again, not even at the meeting?

MR MAFU: When I filled in my application form I bore in mind that I would appear before the Committee and be able to explain everything. I had also hoped that I would meet with the family and be able to explain everything to them. I did not know that I was supposed to put every detail into the application.

JUDGE DE JAGER: Well you had the opportunity now to tell us about this informer and you didn't do so?

MR MAFU: It was my mistake, I thought the attorney was asking me about something that I already referred to, not everything but ...(intervention)

JUDGE DE JAGER: You create the impression to me that wasn't an important factor at all because you didn't testify about it so I thought well maybe he wasn't an informer?

MR MAFU: Well all I can say is that he did work with the police.

JUDGE DE JAGER: Well you never told us about it.

MR PANDAY: Now you mentioned that he told you about the muti when you were walking in the street, that is correct?

MR MAFU: That is correct.

MR PANDAY: Now I'm going to refer you to paragraph 7 again of Exhibit A. In the end of paragraph 7 you say:

"The deceased refused to answer me."

You first questioned him about witchcraft and he refused to answer you. Now why do you change now?

MR MAFU: When I asked him the first time he started by refusing but when everybody else got into the argument when they started questioning him further he did answer eventually.

MR PANDAY: So why didn't you put that in your statement?

MR MAFU: Well I was saying maybe it was by mistake.

MR PANDAY: Isn't it also your evidence that witchcraft was being embraced by the IFP against the ANC?

MR MAFU: Yes they did practise witchcraft.

MR PANDAY: Now why did you particularly ask him about witchcraft against your brother and not about witchcraft against the ANC?

MR MAFU: The reason why I questioned him about my brother is because of what he had said. I would not have questioned him about witchcraft, if he had not said those words we would have just attacked him but because I wanted an explanation about what he said about my brother I did ask him that question.

MR PANDAY: So you were using this attacking for your personal gain as well?

MR MAFU: No it was protecting myself as well as other people who were suffering at the time and I was also following a command that I had been given. It was not my personal choice.

MR PANDAY: Then why question him about personal issues, you were following a command, you had a plan to attack him? Why were you now questioning him with personal issues?

MR MAFU: There were other members of the public who were present. It would have been difficult to just attack him without saying anything. They would have perceived us as criminals. For me to question him about this it was because I wanted the community to hear for themselves that this person had committed certain offences.

MR PANDAY: Yes but the only offence you questioned him about was the killing of your brother. So you wanted the community to hear that you were questioning him about the killing of your brother, no other offence you questioned him about?

MR MAFU: I questioned him about my brother as well as for his witchcraft practises.

MR PANDAY: It was used against your brother, nothing else?

MR MAFU: It was proper that I should ask him about his witchcraft practises because when he uttered those words I was in the presence of just a few people. The other members of the community had not been present. It would not have been acceptable for us to divulge the offences that he had been touched with after his death.

MR PANDAY: Who were you going to divulge this information to?

MR MAFU: The intention was to inform the entire community so that they were aware of what had happened, that he was a resident.

MR PANDAY: The only thing you informed the entire community was about the death of your brother because you questioned him about the death of your brother, nothing else?

MR MAFU: That is one incident that I had an opportunity to discuss. I could not attend to any other issues because I had already been given a command, that would have wasted a lot of time.

MR PANDAY: Which was more important, to protect the ANC or the death of your brother?

MR MAFU: The important thing was what I had been ordered by the ANC because even when my brother's issue was raised at the meeting it was decided that we should not be hasty, we should not take action before we investigate. One of the comrades suggested that we should not be hasty and take steps before investigating the issue and that was where it was left. When he was being assaulted I found it proper that I should remind him of what he had said on the previous occasion.

JUDGE DE JAGER: Well why didn't you ask him about his informer, him being an informer because that would have been of interest to the community if you had to investigate the allegations against him?

MR MAFU: I regarded that as something that was public knowledge because when he walked around with the police he was in clear view of everyone, there was no need for me to start questioning him about it.

MR PANDAY: Now you say that was public knowledge. Now why didn't you just put that in your statement? He was an informer, he was a threat to the ANC, we had to eliminate him. Why did you talk about your brother's witchcraft practise, the witchcraft practise against the ANC. The entire sequence of events only revolved around your brother?

MR DEHAL: Sorry Mr Chairperson, I think that's a trifle unfair because if you look at paragraph 6 on the first page of Exhibit A at the bottom, it does say 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 was responsible further for killing of several ANC members. It was also well known that witchcraft was embraced, etc. etc., and so he goes on talking about it.

MR PANDAY: Mr Chairperson, we're not talking about what took place at the meeting, we're talking about what took place in front of the community. In fronted of the community he wanted to make them know what was taking place, that the victim was an informer and so forth.

MR DEHAL: Well his answer there is that the ...(intervention)

JUDGE DE JAGER: Well, leave it for him to answer and then argue it ...(inaudible)

MR DEHAL: My only objection is that his answer is that he says it was already public knowledge in that regard and he has answered that already.

MR PANDAY: Now Mr Mafu, you said that the deceased went into the house and brought the bags out with the weapons, is that correct?

JUDGE DE JAGER: No, not that he brought out bags with weapons, he had weapons in his hands when he appeared.

MR PANDAY: Okay, sorry. You mentioned that the deceased entered his house and when he reappeared he had weapons in his hands, is that correct?

MR MAFU: That is correct.

MR PANDAY: Now you mention in paragraph 8:

"Upon arrival at his home my comrades and I started stoning the deceased with the intention to kill him."

Now at what point did he go back into the house? Did you stop the stoning?

MR MAFU: When we arrived at his home he went into the house, came out with weapons and that is when we started stoning him. When we went into his house we wanted to give him an opportunity to go inside and fetch the bags. Instead he came out with the weapons that is when we started stoning him.

MR PANDAY: Now did anyone else go in the house with him?

MR MAFU: No one did, he went in alone because there was nothing that he could do to disappear because there were many of us and we had surrounded his place. Even if he had delayed in the house we could have gone in to fetch him. We just assumed that he was going to go in and get the bags.

MR PANDAY: Did you not fear that he may come out with guns? He could shoot you?

MR MAFU: We may have thought of that but that would not have stopped us from carrying out whatever we had intended to do to him.

MR PANDAY: Do you know Kenneth Mkhize?

MR MAFU: Yes we grew up together.

MR PANDAY: Yes you mentioned in paragraph 6 he was present at this meeting where you all decided to kill his father, is that correct?

MR MAFU: Yes he was present.

MR PANDAY: And when did this meeting take place?

MR MAFU: It was on a Tuesday.

MR PANDAY: How many days before his father's death?

MR MAFU: The meeting was held on a Tuesday and his father was killed on the following day.

MR PANDAY: Now Kenneth Mkhize who firstly denied being at this meeting, he in fact gave evidence in court, that's on page 27 of the bundle of documents, there he says he was approached by Babalo who questioned him about his not attending ANC meetings. Would Kenneth be lying?

MR MAFU: He may say that he was questioned, that I may not dispute but I would dispute it if he says he was not present at the meeting but I do understand his motive, it is his father that was killed. I do dispute that he was not present at the meeting but I understand because it is his father that died therefore he would say whatever to deny any involvement but he was present at the meeting.

MR PANDAY: So you don't think it's strange that he wouldn't have told his father you were going to kill him?

MR MAFU: I cannot speak on his behalf but as far as I can tell, as far as I'm concerned I would have told my father because even when we approached the deceased he seemed to have some knowledge that he was expecting us, he seemed to have an idea that he might be killed because he even apologised and said "please don't kill me" which indicated that he may have had some prior knowledge. I cannot say though that Kenneth might have informed me of that.

MR PANDAY: You say he apologised, when did he apologise to you?

MR MAFU: When we met him on the road he apologised and said that we should not kill him. That is when I started questioning him.

MR PANDAY: You say on the road he apologised for not killing him?

MR MAFU: That is correct.

MR PANDAY: Now how would he have known at that time on the road you were coming to look for him, that was not even at home? You met him on the road?

MR MAFU: He deduced that from the way that we were approaching him because it was clear that we were coming directly to him, that is when he started apologising.

MR PANDAY: Now you mention that he went into the house and came out, did he come out with the bags?

MR MAFU: No, he came out with a bush knife and an assegai.

JUDGE DE JAGER: He answered that before, is it really necessary to repeat it and repeat it?

MR PANDAY: Okay Chairperson, moving on. Tell me, did you all insist on seeing the muti?

MR MAFU: Yes we called Kenneth and told him to go fetch the bags. Instead he came out with a bag containing spanners and other tools as well as another bag containing a few herbs. We just left that bag because we did not regard those herbs as dangerous. At that time the deceased had already been killed. He was then doused with petrol and Kenneth was told to light him and his body was late and then we fled thereafter.

MR PANDAY: So you said before you poured petrol on him he was already dead, is that correct?

MR MAFU: He seemed to be dead because at that time he was not moving and his legs were broken but I cannot be absolutely certain that he was dead because from what I heard in court he died at the hospital but when he was doused with petrol he looked to be dead because he had also been assaulted and stoned.

JUDGE DE JAGER: Didn't he tell Kenneth that Kenneth should obey your order and pour petrol on him when Kenneth was hesitant in doing so?

MR MAFU: He did not. Kenneth said, he said it himself that there's nothing he can do except to do what we were telling him. I told Kenneth that there was money inside his father's coat and he removed the money. When he was supposed to light him he did not do it but fled and I continued doing so.

MR PANDAY: You know that Kenneth's evidence is opposite to what you say?

MR MAFU: I cannot comment on that but I'm only relating what happened when we killed his father. I cannot comment on the contradictions in our evidence.

MR PANDAY: And who eventually lit the body?

MR MAFU: I did.

MR PANDAY: And where was Kenneth?

MR MAFU: He had already fled.

MR PANDAY: You see the family is opposing your application because they maintain that your attack was merely a revenge attack for the death of your brother and not a political attack. Do you have any comment to that?

MR MAFU: The family did not have full knowledge of why the deceased was attacked. The matter relating to my brother was divulged by myself, they didn't even know about it. I am here because I would like to reconcile with them, I grew up with his sons and we were all together and they assisted me in many ways. Some of his sons had their own houses. They would sometimes give me odd jobs to do at their homes because we were all living together as neighbours. I came before the TRC so that they could understand fully the incidents and the reasons surrounding their father's death. Some of them were not even present when he was assaulted therefore I do understand when they say that because they do not have full information and I'm here to disclose exactly what happened. I would plead with them to believe me because they know the sort of person that I am, we grew up together and I would like us to be reconciled. Even if I had been killed when I was given the death sentence they would not have benefited in any way therefore I request from them, I plead with them to listen to me and forgive me for what I did.

MR PANDAY: Did you eventually learn how your brother died, Siboniso?

MR MAFU: No I did not learn about it but he was not done by a car. Mr Mkhize's involvement in my brother's death came about from what he had said that my brother would not have died had he continued working for him. It was not because I had seen him giving him muti or something of that nature.

MR PANDAY: And how did your brother, Sidlagu, die?

MR MAFU: He was killed by the deceased's son after we had killed their father. They came across him in a shebeen and they killed him there.

MR PANDAY: And your father?

MR MAFU: My father died of an illness although when he was ill he would say a lot of things that did not make sense. I do not think that by the time he died he had his full mental capacity with him at the time.

MR PANDAY: So your father was ill at the time when he died, very sick? Your father was very sick when he died?

MR MAFU: Yes my father died after a long illness.

MR PANDAY: Now paragraph 9 in Exhibit E, that is the translation of your application, it says that your father was killed in 1985 by IFP and

"us as members of the ANC had to defend ourselves."

Now how did your father really die?

CHAIRPERSON: Where is this?

MR PANDAY: Paragraph 9 Exhibit E, Mr Chairperson. 9(a)

MR MAFU: That was a mistake. My father would not have been killed by the IFP because he was a member of that organisation. I think I did explain before that my father was an IFP member and for an ANC branch to be launched in our area we are the persons who went to join the UDF, therefore it is not sure that my father was killed by the IFP, he died of an illness.

MR PANDAY: But you also in your evidence in chief or I think it maybe under cross-examination previously or the day before indicated that your father was in fact killed by the IFP, they were being attacked?

MR DEHAL: No, I beg your pardon, that's not my recollection. He said his brother was.

MR PANDAY: That's what I can recall and I stand to be corrected.

MR DEHAL: No that's incorrect, it never was mentioned.

MR PANDAY: When evidence - a question was put to the applicant he mentioned that he was attacked two or three times his family and his father was also attacked.

MR MAFU: That is not true. I was attacked by the deceased on three occasions and on two occasions he tried to stab me with an assegai and on that occasion he came to my home together with IFP members and he instructed Mr Mavudla to shoot me but my mother intervened and threatened to take the matter to the police if they kill me. I was then told to leave that area and my house was destroyed. I was then forced to go live with the in-laws. I do not remember having said my father was attacked with me. This happened after he died.

MR PANDAY: Now why in your application form you said your father was attacked and killed by the Inkatha?

MR MAFU: That is why I say if that is in my form then it's a mistake. I do not remember my father being attacked by the IFP. He was an IFP member. My father was not murdered he died of an illness.

MR PANDAY: Thank you Mr Chairperson.

NO FURTHER QUESTIONS BY MR PANDAY

CHAIRPERSON: Does that conclude your questioning?

MR PANDAY: Yes Mr Chairperson.

CHAIRPERSON: Questions?

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

When did you join the Operation Vula?

MR MAFU: I was taken to Sipho Mkhize in 1987 and we went to the Transkei in 1988. Our intention was to go to Lusaka but then we did not because we had to go to Transkei therefore I say it was in 1988 that I signed for this Operation.

MR MAPOMA: Then why in paragraph 8 of your application for amnesty did you say that you joined the military and Operation Vula in 1980?

MR MAFU: I must have made a mistake, it's 1988. I joined Operation Vula in 1988.

MR MAPOMA: Who are those who might have made a mistake?

MR MAFU: I may have made a mistake, I can except that I made a mistake but if I remember correctly I went to the Transkei in 1988.

MR MAPOMA: Who wrote this application for you?

MR MAFU: I filled this application form from page 1 to 10.

MR MAPOMA: When why did you say your father was killed in 1985 you said somebody must have made a mistake? You did not say that you yourself must have made a mistake?

MR DEHAL: Sorry, we don't have that on record and I don't think the Evidence Leader is purporting to be an expert. I think perhaps he should be asked as a question "did you not say this?" Because none of us heard that and the interpretation was different.

MR PANDAY: I think Mr Chairperson must give also due weight to the Evidence Leader in that obviously he is versed in understanding of the language. Now there may very well have been an interpretation coming across to us who don't understand Zulu obviously as opposed to the Evidence Leader who very well may understand the questioning.

MR DEHAL: May I beg to differ, I understand Zulu and I didn't hear that and it led me to - but put as a question I'd have no difficulty with that.

JUDGE DE JAGER: But he said that was a mistake?

MR DEHAL: Yes that's true.

JUDGE DE JAGER: Okay, who made the mistake?

MR MAFU: What are you referring to because we had discussed two matters one about my father and two about Operation Vula.

JUDGE DE JAGER: Your father being killed by the IFP as stated in your application and you said that's a mistake. Who made that mistake in your application?

MR MAFU: I would say it must have been me because I filled in the application form.

MR MAPOMA: Where in Transkei did you train?

MR MAFU: At Nkoso in Flagstaff. We were on a mountain known as Embanani in Nkoso.

MR MAPOMA: Trained by whom?

MR MAFU: By Sipho Mkhize.

MR MAPOMA: Who is Sipho Mkhize?

MR MAFU: He was a person training in the military, he was from Umbumbulu.

MR MAPOMA: Did he ever go to exile that Sipho Mkhize?

MR MAFU: Please repeat that question?

MR MAPOMA: Did Sipho Mkhize ever go to exile?

MR MAFU: I am not certain but he had close contacts with exiles. I think he used to go outside the country because sometimes they would tell us that he was from Angola and Namibia.

MR MAPOMA: Why did they choose Transkei as a base to train?

MR MAFU: It's not that we chose Transkei but it was the people who were from exile who decided on Transkei because our intention initially had not been to go to Transkei but to Lusaka but we were directed to go there.

MR MAPOMA: I'm asking this to your Mr Mkhize to be fair for two reasons. One, during 1988 ANC was banned, the Transkei security forces were so vicious against MK operations in Transkei and secondly the victims contest that you were trained at all. What is your comment?

MR MAFU: I wouldn't know about the group which went first and I don't know how they used to choose the spot to train us but we were trained in a certain place which was far from the police but then I wouldn't know why we were moved from one place to the other and how they got to know if that place was safe.

MR MAPOMA: Okay, let's leave that one. I suppose Boniso is the younger brother who died as a result of a car crash, is that correct?

MR MAFU: Yes that is correct, that's my brother.

MR MAPOMA: And then Stelaku, how did he die?

MR MAFU: Stelaku was killed by the sons of the deceased because they were revenging after we had killed their father.

MR MAPOMA: So the deceased had nothing to do with the death of Stelaku, is that correct?

MR MAFU: No he had already died because Stelaku was killed because he was one of the people who killed Mkhize.

MR MAPOMA: Is there someone else other than Stelaku who was killed as a result of the death of the deceased?

MR MAFU: Do you mean at home? No, no one at home. There are quite a number of people who died because of the deceased, I think some of them I would have been with them here today because I wanted them to come but then when I wrote a letter to invite them to come before this Committee I was told that they were killed.

MR MAPOMA: No, no, get my question correctly. My question is, in your locality you say a fight arose between the deceased's sons revenging the death of their father. Who else other than your brother did they kill in revenge to the death of your brother?

MR MAFU: No one was killed after Stelaku was killed because after the murder of Stelaku we revenged again until they fleed the place. There were other people who were killed but I wouldn't say that they were killed by the sons of the Mkhize's but they were killed because of political violence and they will flee to Ndwalale and other areas, nearby areas but not that they were killed by the sons of the deceased.

MR MAPOMA: I suggest that the feud was between your family and the family of the deceased and not the community that you are professing to make to this Committee. What do you say to that?

MR MAFU: That is not true, I've never quarrelled with the deceased. We worked together and we never quarrelled. We only became enemies when we became a member of an organisation but when I was growing up we were in good terms and good relations between me and the deceased. It was not families, I dispute that. Even today the deceased's family and my family they see each other and they greet each other, they don't have a problem. I will dispute that completely if they say the families were in conflict.

MR MAPOMA: Let us leave that one. When you met with the deceased on the road and confronted him about his witchcrafting, did you assault him at all?

MR MAFU: No I didn't but one could see that it was going to be easy for him to get hurt because people were armed. Some were armed with stones, some with sticks but at that very moment when I was questioning him no one put a hand on him.

MR MAPOMA: When exactly did the assault start on the deceased?

MR MAFU: The assault started after we told him to get inside the house to fetch the muti but then he didn't bring the muti, instead he brought weapons, that's when the assault started. It started there and that's where it ended.

MR MAPOMA: So is it your evidence that he was only assaulted when he went out of the house with weapons and it's only then that he got assaulted, is that what you're saying?

MR MAFU: Yes, nothing else, it was there.

MR MAPOMA: How did he happen to get injuries on his legs, on one of his legs?

MR MAFU: He got injured there when stones were being thrown at him, he was never assaulted anywhere else except when he came out of the house. In fact I personally thought that he had fractures all over his body because stones were all over his body.

MR MAPOMA: You know, I'm asking this question because Kenneth, if called, will say that when you arrived with his father he had already sustained some injuries because of the assaults on him, what do you say to that?

MR MAFU: That will be a terrible mistake. His father came there when he didn't have anything except that he was scared, he had perspired and he was wet, not that he had been beaten or assaulted.

MR MAPOMA: I will leave it there. Thank you Mr Mafu, thank you Chairperson, no further questions.

NO FURTHER QUESTIONS BY MR MAPOMA

FURTHER CROSS-EXAMINATION BY MR PANDAY: Mr Chairperson, before you allow Mr Dehal the chance to cross-examine if I may just put a few questions to the applicant? Thank you.

Mr Mafu, is that correct that Mr Mkhize was attacked because he was killing or oppressing the ANC?

MR MAFU: Yes it is true.

MR PANDAY: Now paragraph 10(a) the Exhibit E reads the following, you were asked to state your political objective that was sought to be achieved and you say the following:

"We were oppressed by the Amakosi of the area. Our objective was to be liberated"

and you go on to say in paragraph 10(b):

"We were attacked and arrested by the police. We were made to pay some money to the Amakosi in the area."

Now why didn't you attack the Amakosi? He was oppressing the ANC?

MR MAFU: Police and Amakosi of that area were together with Mr Mkhize and if I remember very well the comrades had just killed Induna and he had and the chief had fleed the place and also another Induna, Kunumene had been killed therefore the chief was not around, he had fled. Mr Mkhize as well, he was together with the Amakosi and the Indunas.

MR PANDAY: And who was the Amakosi?

MR MAFU: Samiel Mavundla.

MR PANDAY: Is that Cyril Shezi's father?

MR MAFU: No, Chete Mavundla is another one, it's another Induna.

MR PANDAY: Is he the Induna of the same area

MR MAFU: Yes at that time.

MR PANDAY: And then which Induna was killed in the area?

MR MAFU: The Induna from Emkulu. I am from Samwene. The Induna which was killed was Induna was Emkulu.

MR PANDAY: Now why did you kill that Induna?

MR MAFU: He was one of the people who was fighting comrades, he was like Mr Mkhize, he was fighting the comrades and the comrades decided to kill him. These were Indunas who were promoting the IFP and who were fighting the comrades of the area therefore comrades decided to kill them.

MR PANDAY: And Cyril Shezi?

JUDGE DE JAGER: Did you assist in that killing?

MR MAFU: No, I wasn't present because it was an area nearby my area and I wasn't present but if I was present I would have accompanied them. I do have this information because we as comrades we used to report such matters.

MR PANDAY: Thank you Mr Chairperson, nothing further.

NO FURTHER QUESTIONS BY MR PANDAY

CHAIRPERSON: Any re-examination?

MR DEHAL: None at all, thank you.

NO RE-EXAMINATION BY MR DEHAL

JUDGE DE JAGER: You didn't know whether Kenneth would be at home on that day when the killing took place?

MR MAFU: I basically thought that it was going to happen no matter who was there whether Kenneth was there or not there but then it basically didn't matter to me whether he was going to be present, I didn't even think about it whether he was going to be there but even though it was during school days and during school hours but he was present.

JUDGE DE JAGER: Yes and if he was - and who would have poured - where did the petrol come from?

MR MAFU: We brought the petrol. In the meeting we gathered everything we will need in order to kill Mr Mkhize and we were given all these things, when we left the meeting we had everything with us.

JUDGE DE JAGER: Did you carry the petrol?

MR MAFU: No at that time it wasn't me. I took the petrol from Bonga Novela.

JUDGE DE JAGER: Now why didn't you pour the petrol?

MR MAFU: It was decided in the meeting that if ever we were to find another family member at the Mkhize's household then we were going to instruct that member because his sons were ANC therefore we were going to instruct one of his sons ...(intervention)

JUDGE DE JAGER: So you would force one of his sons, any one of his sons to pour the petrol on him? Was that what you decided to do?

MR MAFU: Yes, that's how it happened because we had decided so that one of the family members should put petrol.

JUDGE DE JAGER: Right and if a family member, if he wouldn't do it, what would you do to that member? If he wouldn't obey you, what would you do to him?

MR MAFU: We were going to pour the petrol ourselves, we were not going to kill that individual because it was not decided so but we thought that it was going to be difficult for anyone to refuse because at that time comrades were dangerous and whenever comrades ordered you to do something it wasn't going to be easy for any person to refuse.

MR SIBANYONI: The request that one family member should pour petrol, apart from taking the blame away from you and putting it to his family member, did it have any other significance?

MR MAFU: No.

MR SIBANYONI: You said during those times comrades were dangerous. When you decided upon asking one of the family members to pour petrol did you expect them to agree or you foresaw that you may refuse?

MR MAFU: Yes.

MR SIBANYONI: I didn't understand your answer?

CHAIRPERSON: What do you mean by yes? Did you expect him to do it or did you expect him to refuse?

MR MAFU: Anything. I expected that he was going to say yes or no but I believed that since we were many it was going to be difficult for that person to say no. He was going to do that and we were going to get away with it because if we implicate a family member then we aren't the one that did that.

MR SIBANYONI: Thank you Mr Chairperson.

CHAIRPERSON: Right, thank you.

WITNESS EXCUSED

MR DEHAL: I have no further witnesses on behalf of this applicant. I do however notice it is twenty five past one and I was cautioned about the 1 o'clock time.

JUDGE DE JAGER: You should have been cautioned about the 3 o'clock time because members and staff members are booked on the 3 o'clock flight?

MR DEHAL: This matter is not in my hands, Mr Chairperson.

JUDGE DE JAGER: We'll have to continue through the lunch hour.

MR DEHAL: I have no difficulty with that, yes.

CHAIRPERSON: Right you have concluded your ...(intervention)

MR DEHAL: Indeed. Any evidence being led by the victims?

MR PANDAY: Yes Mr Chairperson, we call the son of the deceased, Kenneth Mkhize.

MR DEHAL: Mr Chairperson, could I whilst he's being called and sworn in seek the indulgence just to quickly answer nature's call?

CHAIRPERSON: Oh yes.

MR DEHAL: There's no need for an adjournment, thank you.

CHAIRPERSON: Well you may not be the only one in that position, I think one tends to forget the people who have to work to make the thing go, we will take a very short adjournment.

MR DEHAL: I'm indebted to you.

COMMITTEE ADJOURNS

ON RESUMPTION

KENNETH MKHIZE: (sworn states)

EXAMINATION BY MR PANDAY: Mr Mkhize, is it correct that you're the son of the deceased?

MR MKHIZE: That is correct.

MR PANDAY: And that on the 16th January 1990 you were residing with the deceased?

MR MKHIZE: That is correct.

MR PANDAY: Right, is it also further correct that you were a witness in the trial that ensued after the death of your father?

MR MKHIZE: That is correct, I was a witness.

MR PANDAY: Now during the period of 1990 did you belong to any political party?

MR MKHIZE: Yes I was in the ANC.

MR PANDAY: And did you remain with the ANC?

MR MKHIZE: I did support the ANC and although I was still young it did appeal to me as an organisation.

MR PANDAY: And did you continue to support the ANC and attend all the meetings?

MR MKHIZE: I would attend some meetings.

MR PANDAY: And did you eventually stop?

MR MKHIZE: Yes, there came a time when I stopped attending meetings because my father disapproved of that as well as the fact that I was still at school so I had to concentrate on my studies.

MR PANDAY: Now was your father a member of the ANC or any political organisation?

MR MKHIZE: My father was not an ANC member. In fact he was apolitical, he was just a church-goer.

MR PANDAY: Did your father belong to the IFP at any stage?

MR MKHIZE: I cannot say for certain that he was a member of the ANC because at that time there were no political organisations in the area but the area was dominated by the IFP.

MR PANDAY: Can you just report your answer, I don't think it was correctly interpreted? You said you are not certain whether he was a member of which organisation?

MR MKHIZE: I do not think he belonged to any political party because there were no political organisations at the time. There were Amakosi because that was a tribal area but I cannot say whether he was an IFP member or not but he was a religious person.

MR PANDAY: Thank you. Now Mr Mkhize, do you recall the day that your father was killed?

MR MKHIZE: Yes it was on a Tuesday.

MR PANDAY: Can you explain to us the events that took place on the day in question and which led to the death of your father?

MR MKHIZE: I was at home on that day with my younger brother. My father was not home. We just saw him coming home in the company of comrades. They were in possession of his clothes, his umbrella and a hat as well as a coat. When they arrived I asked them what seems to be the matter, why are you driving my father in this fashion and they said my father practised witchcraft so I said to them they must select four people who will go with me so that we search all the huts and see if we will find any herbs. We did so and we and did not come across any bags. We only found a bag that contained spanners and as we came out of the huts I discovered that my father was being assaulted, he was lying on the ground and his legs were broken and he had wounds on his head as well.

MR PANDAY: On being questioned they said they believed the father was practising witchcraft. Did they mention any incident in particular in which witchcraft was used?

MR MKHIZE: They did not mention any incidents.

MR PANDAY: Now after they had come out of and seen them bearing your father what went on thereafter?

MR MKHIZE: I discovered that they had already assaulted my father. Some of them said he should be left alone because they did not find muti. Mr Mafu then responded, said that no, they should continue killing him. They then gave me petrol to douse my father with. My father then said I should do as they order because if I do not we'll both be killed. I then did so. Thereafter Mr Mafu gave me a match to set the body alight. I threw this down and fled. Afterwards I saw them fleeing and I returned home. On my arrival I found my father on fire. I went inside the hut and took two containers containing water and tried to put the fire out. Shortly thereafter my brother and my mother arrived and he was rushed to hospital and he died there.

MR PANDAY: Now you mentioned that the others said that they must stop hitting your father, is that correct?

MR MKHIZE: That is correct.

MR PANDAY: And that Mr Mafu insisted to continue?

CHAIRPERSON: Mafu insisted they should kill him.

MR MKHIZE: Yes.

MR PANDAY: Do you have any idea why Mafu insisted to kill your father?

MR MKHIZE: I do not really have that knowledge because I do not know what the source of the conflict between because they had never quarrelled before.

MR PANDAY: Now Mr Mafu alleges that your father was involved with politics and was using witchcraft against the ANC. Can you comment on that?

MR MKHIZE: That is not correct because I remember that the ANC was launched in 1989 and there was no conflict that erupted in the area. The war only started after my father's death, he was not in the IFP.

MR SIBANYONI: Was it launched as the ANC or was it launched as the UDF in 1989?

MR MKHIZE: It was the ANC.

MR SIBANYONI: But it was still banned during those years, organisations were only unbanned on the 2nd February 1990, how was it possible to launch an ANC when it was banned?

MR MKHIZE: At that time they called themselves ANC. Mr Mafu alleges that my father was an informer in collusion with the police. The police did not come to that area because there was no war going on there and my father was never an informer.

MR PANDAY: Mr Mkhize, did you attend the court case where Mr Mafu was being tried for the death of your father?

CHAIRPERSON: He's told us he was a witness, hasn't he?

MR PANDAY: Oh, sorry Mr Chairperson.

Now - no, no, I'll rephrase the question. You mentioned in your statement to the TRC that you learnt at the court that your father caused the death of Mr Mafu's brother by using muti?

MR MKHIZE: That is correct, that is what I heard in court in Scottsburg.

MR PANDAY: You also mentioned that Mafanalo's mother denied this by saying that her son had died in a car accident. Do you recall that?

MR MKHIZE: Yes that is what she said.

MR PANDAY: Do you know if the mother blamed the death of her son in any way through the use of muti?

MR MKHIZE: From what she said in court she did not think that her son's death was as a result of being poisoned with muti. She explained that her son had been knocked down by a car. She had been with her son and he had walked straight into a car. She did not mention muti.

MR PANDAY: Thank you Mr Chairperson. Thank you Mr Mkhize.

NO FURTHER QUESTIONS BY MR PANDAY

CHAIRPERSON: Cross-examination?

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

When the ANC was launched in 1989 even at the level of it being understood as being the ANC, it must have been very secretive and operated underground, isn't that correct?

MR MKHIZE: When the ANC was launched underground I was not involved but when they toyi-toyied I did take part.

MR DEHAL: And did the toyi-toyiing start in 1989?

MR MKHIZE: Yes it did.

MR DEHAL: And did you join in 1989 because you said you started when the toyi-toyiing started?

MR MKHIZE: I was saying yes I did join in 1989 because I would be present.

MR DEHAL: And Mr Mafu, was he - sorry, did you also understand him as being a member of the ANC as well?

MR MKHIZE: We were in the same organisation because I remember one instance where we had a meeting and somebody came with a piece of paper and claimed that he had been upon that at Nyandezulu to become the chair therefore he was one person who was prominent.

MR DEHAL: Sorry, who was prominent? Mafu or the person who came in with the paper?

MR MKHIZE: Yes.

MR DEHAL: Sorry, I think the interpretation was short, the answer was long?

CHAIRPERSON: Mafu?

MR DEHAL: That's how I understand it yes.

MR SIBANYONI: Did Mafu arrive with the paper?

MR MKHIZE: Yes he did have a piece of paper that he said was given to him at Nyandizulu, that he was going to be the chair of our area.

MR DEHAL: You do not deny of course therefore that he was the chair of the ANC Youth League of your area?

MR MKHIZE: I would not deny it.

MR DEHAL: And do you know whether Mr Mafu had any training as a cadre, as a trained soldier under MK, under Operation Vula somewhere in Transkei or in Umtata?

JUDGE DE JAGER: He wouldn't have the knowledge out of his own knowledge unless he trained with him. He might have heard it from somebody?

MR DEHAL: That's the question, yes.

MR MKHIZE: I do not have knowledge or I do not remember him going for training.

MR DEHAL: But if it is told to you that Mr Mafu had training you wouldn't be able to dispute that, wouldn't you?

MR MKHIZE: I would not dispute it because I heard that for the first time here, I didn't know about it.

MR DEHAL: Do you know Mr Cyril Shezi?

MR MKHIZE: Yes I do.

MR DEHAL: Does he feature prominently in the rank and file of the ANC in your area? Sorry, did he at the time?

MR MKHIZE: I do not remember him in armies at the time.

MR DEHAL: You see, both you and Mr Mafu were in youth league, Mr Cyril Shezi I understand was not in the youth league he was in the senior structures of the ANC in your area. Are you able to comment on that?

MR MKHIZE: Yes I don't think that Mr Mafu and myself were in the youth league but I did not know anything about Mr Shezi at the time because as I have explained before I did not attend meetings regularly because I was still young. Perhaps he did attend some of the meetings but I'd never seen him.

MR DEHAL: And Mr Bheki Cele, do you know him?

MR MKHIZE: No I do not, I've only seen him on TV.

MR DEHAL: Would it be correct to say that both your family and that of the applicant's family were in fact close, you spoke to each other, the applicant visited your home regularly, on occasions assisted your family until the applicant joined the ANC when relations soured?

MR MKHIZE: That is true. We were neighbours and we were close. Sometimes he would help us in ploughing the land. We were very close with Mr Mafu.

MR DEHAL: You would agree with him that he says members of your family and him, the applicant, grew up together?

JUDGE DE JAGER: Because they were neighbours and he helped with the ploughing so it's obvious they grew up together.

MR DEHAL: I accept that, thank you.

Do you know whether the Amakosi had a large membership in your area?

MR MKHIZE: Yes I do have that knowledge because if the Inkosi called a meeting people would go attend such meetings so I'll say yes, the Amakosi had followers.

MR DEHAL: Did you ever understand your father as being a member of the Amakosi?

MR MKHIZE: My father was not an Inkosi but if the Inkosi calls a meeting you would attend whether you are a follower or not because he would call a meeting for a specific reason to discuss issues effecting the community so every man had to attend.

MR DEHAL: And your father did he attend these Amakosi meetings?

MR MKHIZE: Yes he would.

MR DEHAL: Was the ANC opposed to the Amakosi?

MR MKHIZE: I cannot say with certainty that they opposed Amakosi because the organisation was only launched towards the end of the year because they started with the toyi-toyi in October. As time went on in 1990 my father was killed by the ANC and they also burnt my home as well as confiscated our cattle. We were forced to leave the area and move to Bopoye. I do not know after that time if the ANC would attend meetings called by the Inkosi.

MR DEHAL: Was your father opposed to you being a member of the ANC and continuing to attend ANC meetings?

MR MKHIZE: As I explained before he was a very religious person.

MR DEHAL: Can you tell what about the ANC made him find it unacceptable to his religious practice or can you not?

MR MKHIZE: What I can say is that the ANC did not enjoy support from the older people, it was only in organisations that was supported by youngsters and when they held meetings all the people did not attend therefore I don't think he would have been in a position to go attend such meetings therefore I cannot say that he did not like the ANC or was against the ANC.

MR DEHAL: Mafu says that there was a meeting of the ANC the day before your father was killed, do you know of that meeting and did you attend that meeting?

MR MKHIZE: I do not remember such a meeting where older people were involved it was just the youth. Maybe that took place after my father's death.

JUDGE DE JAGER: Was there a meeting of the youth the day before your father was killed?

MR MKHIZE: Yes there was a meeting held. It was on a Thursday, I was present at that meeting. Mr Mafu then said to us we should go home because we were younger, that is how they managed to ensure that we're no longer part of the discussions when my father's issue was discussed. That meeting was held on a Thursday and they came to kill my father on Tuesday therefore it's obvious that I was being chased away so they could be free in discussing my father.

MR DEHAL: Do you know why your father was discussed at these meetings?

MR MKHIZE: No I did not have knowledge thereof.

MR DEHAL: Did you not suspect they were intent on executing your father?

MR MKHIZE: No I did not suspect that because my friend Babalu once approached me and asked me why I did not attend meetings and longer and he advised me that if I stay away from meetings my father will be in danger. I did not take much notice of that. Thereafter I attended a meeting that was held on a Thursday and I was told to leave so that they could discuss my father.

CHAIRPERSON: Did they tell you they were going to discuss your father?

MR MKHIZE: No they did not, they just told us we were young we should go home.

JUDGE DE JAGER: So, did you draw the conclusion that asked you to go home because they wanted to discuss your father after he'd been killed or when did you draw that conclusion?

MR MKHIZE: I concluded that after my father's death that they were chasing me away so that they could discuss my father because shortly thereafter they came to kill my father.

MR DEHAL: As a matter of interest when Babalu received this report from you about - sorry may I rephrase that? When Babalu had told you that your father would be in danger since you were not attending meetings is it not correct that you had told Babalu that your not attending these meetings was because your father had stopped you from doing so?

MR MKHIZE: I did explain to him that my father had forbidden me to attend meetings because we were having exams so if I attended meetings I would be in danger of failing and my father was ...(indistinct), he survived on a pension, therefore I could not afford to fail just because of politics.

That is why I did not attend those meetings, I concentrated on my studies.

MR DEHAL: I see the judge in his judgement, you know, the judge during the criminal trial had mentioned on pages 26 and 27 of this bundle, the last line at the bottom of 26, the first line on top of page 27, the following. If I may just read it and tell me whether you agree with this?

"Babalu Mkhize was a follower but not a member and he took no part in the making of decisions."

That's follower of the ANC and not member of the ANC and took no part in the making of decisions?

MR MKHIZE: Yes Babalo was a supporter and we were in the same boat because we both did not have membership cards.

MR DEHAL: In your statement contained in the bundle on page 18 you say that - referring now to the crowd that came by to execute your father, you called them comrades, you called them ANC comrades, you say this consisted of Mfanalo Mafu and more than 50 other ANC comrades. If it was suggested to you there were a total of about 200 in the group of ANC comrades who had come there to kill your father would you dispute that?

MR MKHIZE: I would not dispute it because there were many people there and you would not really have the time to check the number of the people there considering the nature of the problem that they had brought.

MR DEHAL: Generally from your knowledge of these meetings you attended from the way crowd behaved this ANC crowd behaved and the things these comrades and Mafu told you before they executed your father thereafter, would you say that - or would you agree that the act of killing your father was a political act in the execution in the pursuance of a decision taken by the ANC at their meetings?

MR MKHIZE: I would not say that my father's death had something to do with politics but I mentioned before my father was a religious person, he was not politically active.

MR DEHAL: How old were you at the time your father was killed?

MR MKHIZE: I was sixteen.

MR DEHAL: And where were you schooling?

MR MKHIZE: I attended Giandizoli School.

MR DEHAL: Is that in the area that you lived in?

MR MKHIZE: Yes.

MR DEHAL: Were you very close to your father?

MR MKHIZE: Yes we were and I was still with him.

MR DEHAL: Now it is obvious that in those days because the organisations were all banned the organisations were secretive about their activity and no doubt your father would have been secretive about his political activity as well and if I were to suggest to you that you did not know of your father's various political activities firstly because you were young, sixteen years old and secondly because in the nature of things he would have been secretive about it, you wouldn't be able to dispute that, would you?

JUDGE DE JAGER: There was no real evidence that he's been involved in a political organisation having meetings or whatever? The main emphasis was on his witchcraft?

MR DEHAL: Here I'm referring to the IFP membership and police informer aspects and all of that.

Would you care to comment?

MR MKHIZE: Would you please repeat?

MR DEHAL: Yes, you see in those days the organisations were all unbanned and as you heard Mr Sibanyoni say, these political organisations were only unbanned in February 1990 at the earliest.

JUDGE DE JAGER: Not the IFP? It wasn't banned.

CHAIRPERSON: It was a banned organisation was it?

MR DEHAL: Not the IFP, yes.

CHAIRPERSON: No.

MR DEHAL: Sorry. Apart from the IFP, I'm talking of ANC, MK, Operation Vula, etc. But despite that, even persons in the IFP and the ANC were very secretive about their political activity because of the war going on between those two organisations. Now since you were sixteen years at the time is it not possible that because you were young and because your father may well have been secretive about his political activity if any, you did not know about them?

MR MKHIZE: Yes I was still young and I was sixteen but it doesn't mean that I was a "duimpie", I could see things and like I'm saying here today that he was a religious person, he never told me he was a religious person, this is what I've seen. I've seen my father, he was never involved in politics.

MR DEHAL: In the area you lived in was there any activity in the IFP, were there IFP members that lived in that area?

MR MKHIZE: No I wouldn't have information about that, all I know is that there was IFP but I won't have knowledge whether they were active. It was quiet in that area and we were under Amakosi.

MR DEHAL: Sorry, just bear with me? Mavundla, did he feature in the IFP at any level?

MR MKHIZE: No, Mavundla a chief of that area.

MR DEHAL: Was he a member of the Amakosi?

MR MKHIZE: Like I said I was a chief, a chief is a member of Amakosi.

JUDGE DE JAGER: Isn't the Amakosi the members of the royal family, the Amakosi?

CHAIRPERSON: The chiefs.

JUDGE DE JAGER: The chiefs.

MR DEHAL: Ja, correct. And it's not true that the Amakosi was supportive mainly of the IFP?

MR MKHIZE: I would say it's true.

MR DEHAL: Sorry, I only mentioned Mavundla, was Samuel Mavundla and Chete Mavundla both members of the Amakosi?

MR MKHIZE: Samuel Mavundla was a chief, he was the chief of the area, the Amakosi were under him.

MR DEHAL: And Chete Mavundla?

MR MKHIZE: Chete Mavundla was an Induna.

MR DEHAL: And finally, I think you've agreed this, I just want to end up with that, you say your father attended Amakosi meetings, your late father?

MR MKHIZE: Yes I said so because if the chief calls for a meeting he calls for everyone in that area in other words the residents of the area. My father was one of the residents in the area so he will attend those meetings.

CHAIRPERSON: As I understood what you said and you've just confirmed it to me, your father did not attend meetings of the Amakosi, he attended meetings called by the Amakosi of the residents of the area?

MR MKHIZE: Maybe I need to repeat my father will attend to meetings whereby a chief called the residents of the area to come. If the chief says the residents should come to a meeting then my father would attend that meeting but he was a very religious person and also a resident of that area because if a chief calls for a meeting it doesn't discriminate. If he says the residents then my father is also a resident of the area.

MR DEHAL: Sorry, perhaps I should just ask following from that, would you agree that the ANC members in that area both elder and junior did not attend these meetings called by the chief, the Amakosi meetings?

MR MKHIZE: I will not agree with you there because if the chief calls for a meeting never once did he call for youth. He will call for elderly or the older people of the area. That is the time whereby the ANC was present but it was mainly the youth. Even myself I was one of the ANC youth, we were not fighting with anyone we were just toyi-toyiing at that time and no one threatened to fight with us, even though one could assume that the youth were ANC and adults were IFP but there was no violence.

MR DEHAL: Mafu tells me and correct me if I'm wrong on this, if he is wrong on this, that because the Amakosi were seen as being supporters of the IFP and the ANC were not friendly with the IFP, in fact they were fighting with each other, generally throughout the country, that the ANC youth consisting of Mafu and yourself did not attend Amakosi meetings as in fact you regularly attended the youth ANC meetings?

MR MKHIZE: As I've already explained that we as youth we never used to attend meetings which were called by the chief because whenever the chief called a meeting it was for adults but at that time there was no war or fights between the IFP and ANC. When the fights broke out in the area Mafu was already in prison. At that time when this incident occurred there was no fights.

MR DEHAL: I have no further questions, thank you Sir. Thank you Mr Mkhize.

NO FURTHER QUESTIONS BY MR DEHAL

CHAIRPERSON: Any re-examination?

MR PANDAY: No Mr Chairperson.

NO RE-EXAMINATION BY MR PANDAY

MR MAPOMA: I have no questions Chairperson, thank you.

CHAIRPERSON: Thank you.

WITNESS EXCUSED

MR PANDAY: Mr Chairperson, that is the only witness the victims intend calling.

CHAIRPERSON: And leader of evidence?

MR MAPOMA: I have no evidence to tender Chairperson, thank you.

CHAIRPERSON: Gentlemen, what do you think we should do now?

MR DEHAL: Sorry Mr Chairperson, if time permits I don't intend to be unduly long but if we could address at this stage and finalise the matter, I'd be agreeable to doing so.

CHAIRPERSON: What's the position?

JUDGE DE JAGER: Yes we've changed our flights until half past five this afternoon, so you could continue as long as you want to.

CHAIRPERSON: Shall we have address now?

MR DEHAL: May I proceed?

CHAIRPERSON: Very well.

MR DEHAL IN ARGUMENT: Thank you. Mr Chairperson, it is the evidence of both the applicant and that indeed of the deceased's son that we have to consider and apart from that a chasm of documentation that has unsurfaced itself. I submit that the applicant has been very thorough in his testimony, he has been one that has testified clearly with no ambiguity, with no doubt, whenever asked a question he answered forthright, he answered directly, he answered with no hesitation. Indeed he made some mistakes, he conceded the mistakes he made. It has a ring of truth about a person who testifies and concedes openly his own mistakes. There was lengthy cross-examination that ...(intervention)

JUDGE DE JAGER: Could it be a mistake to say "my father was murdered by the IFP" and then come and say "oh, this is a mistake I've made". Can it be a mistake?

MR DEHAL: In my respectful submission yes, especially considering that his brother was killed by the IFP in a reconciliatory attack in a response attack from this ...(intervention)

JUDGE DE JAGER: His father died of natural diseases, he himself said so?

MR DEHAL: Yes.

JUDGE DE JAGER: Now how could he make the mistake by saying the IFP killed him? That can't be a mistake? It was misleading?

MR DEHAL: It's misleading yes I agree. In fact it was ...(intervention)

CHAIRPERSON: Deliberately so because as my colleague has said I do not believe that anyone would make a mistake about how his elderly father died when he had told us he took a long time to die, he didn't think he knew what things were happening about him when he died, he was obviously suffering from a long disease, you don't make a mistake about that sort of death?

MR DEHAL: I certainly wouldn't yes, but then we with respect - are not to take an armchair approach with this applicant, he is not an educated man, he's not one who speaks English as well, he is not one who is familiar with all these proceedings. You know, he wrote that in Zulu I agree. I accept immediately it's misleading but one must also have regard to the fact that his brother was killed by the IFP as he says, that I'm not saying that he suggested this as an excuse, it's an excuse that goes through my mind as a possibility of a person languishing in prison, endeavouring to complete a form in his own handwriting, desirous of obtaining amnesty. But then, if that's what he said he could well have perpetuated that lie by saying it here, I mean there's nobody to gainsay how his father died? He could well have sat there whilst testifying and said "I didn't lie, I didn't make a mistake, my father was killed by the IFP". No witnesses were going to be called, the bundle shows no evidence against him on that.

On the other mistake, again he openly said yes, I made the mistake and that is 1980 as opposed to 1988. There has been much confusion during the time when the applicant testified, that emanated from the various documents that featured. I consulted with him at length during the periods of the intermission in these matters and I think I must record that this is an applicant who was heavily questioned by me about various documents before he even testified. So when he came to testify he came in after all of that badgering. Cross-examination was not as simple, pleasant and straightforward, it was heavy and he stood well. The Evidence Leader asked him some very pertinent questions, he stood well on those.

The same can be said indeed about the deceased's son but the fact that you have two good witnesses who are complimentary in many respects about the political aspects, in itself shows that the deceased's sons evidence is corroborative of the applicant's testimony insofar as the existence of the ANC is concerned, when it came to be launched, it's opposition to the IFP, the existence of the Amakosi, the fact that there were meetings at which the deceased was discussed and that ANC comrades in the main, in fact totally ANC comrades had arrived at the house to execute the father and that the execution was done by ANC comrades in the main, Mafu. Now all of that's common cause so the political content seems not to be an issue, I can't see full disclosure as being an issue, it seems to me that apart from the errors that the applicant has made which he has conceded however misleading they may be, a test for the grant of amnesty it seems has been abundantly complied with.

On the act itself, compliance with sub-section 20(i)(a)(b) and (c) of the Promotion of National Unity and Reconciliation Act 34/1995 seems on both sides to be abundantly complied with. There seems to me little reason why I should address any further on any difficulties that are evident so for the present that is my address, those are my submissions, I submit respectfully that amnesty should be granted and unless my colleagues take me by surprise perhaps I can deal with things thereafter. Thank you.

MR PANDAY IN ARGUMENT: Thank you Mr Chairperson. Mr Chairperson, before one goes into the merits of the application, just to deal with the documents that surfaced. I accept that you don't have confirmation as to the posting and the receiving and the receipting of documents but if one had to peruse those documents it is so strange that the fax appears to be almost identical as far as how the brother was killed, what political problems took place in the area but the moment the document seemed to have had a slight twist as to what - to some other event, that was disputed.

Now Mr Chairperson, we are dealing with a person that went to many prisons. It is strange only the documents that worked in his favour were accepted to be his documents. Now if one has to look at the probabilities, the prisoner has been to Ncome, Pretoria, Westville, Pietermaritzburg. Now for one to follow his trail and to now start implicating him unnecessarily or deducing evidence that may be unnecessary or to his detriment, that seems a bit farfetched for one to accept or just dispose of these documents and therefore I ask the Committee to consider the documents in great detail before one disregards such documents.

Now on the merits if one has to accept there's a political situation in the area that by far may be a problem to dispute then the second test that needs to be followed or fulfilled is that was there full disclosure? We've heard the evidence of the victim's son that his father was not a political activist. Now the victim's son indicates that he was sixteen years old. Now as a sixteen year old boy he is quite aware as to what is going to be the position in his household. He would be able to inform us as to whether there were any political activities or not. He himself went to the stage to say that "my father disapproved with my political affiliation because I was in school" and he quite adamantly pointed out that his father was apolitical. Now he obviously what was the position in his household.

Now the applicant on the other hand when faced with why he questioned the deceased on the death of his brother didn't give a decent enough explanation. He was sent there on a political objective. The political objective was to kill the deceased due to his political interferences and he didn't see fit to question him on any other interference, that of being an informer, that of using witchcraft against the ANC but merely questioned the deceased on the death of his brother. At no stage did he ever indicate in his evidence when being cross-examined that he was questioning the deceased on any acts against the ANC. Now as Mr Chairperson quite correctly pointed out, the applicant now says he seems to have made a mistake as to how his father was killed. Now that I find strange, he insisted that all the forms that were filled out were filled out in Zulu, he filled it out in great detail by himself and as such he would have been able to account for the sequence of events that he is applying for amnesty and what led to his amnesty application. Now he seems to say there was a mistake. Then there seems to be a mistake as to why he didn't inform the Committee that the deceased was an informer. Then when questioned again on his translation about the Amakosi being involved he seems to have committed that doubt as well in the statement.

Now the entire sequence of events that took place on that day purely related to the death of his brother. There seemed to be no indication as to why he was going there for the political objective. He didn't question the deceased on any political interference in the area.

JUDGE DE JAGER: And the brother's killing, no politics were - even if we accept that witchcraft might have been a factor there, there's no allegation that the witchcraft used on his brother if that would be so was in any way connected with politics.

MR PANDAY: Politics, the brother was eight years old, the brother was not even politically active at that stage.

Right now Mr Chairperson, it must be pointed out that only under cross-examination that the applicant seemed to include so-called important aspects, that he was attacked, his family was attacked and if I may point out that my learned friend indicated that his brother was later killed by the IFP, that would indicate that there was no evidence of that nature. There were two brothers, one was killed in an accident and the other one was killed as a revenge attack on the deceased. That was the evidence led. There was no evidence led that either of his brothers were killed as a result of the IFP attacking them.

JUDGE DE JAGER: Yes but he himself was a member of the ANC and his brother was a member of the ANC?

MR PANDAY: Yes but in regards to the second brother that was killed ...(intervention)

JUDGE DE JAGER: Yes but the second brother was killed by the children of the deceased?

MR PANDAY: As a revenge attack.

JUDGE DE JAGER: Yes.

MR PANDAY: So there was no evidence to the effect that ...(intervention)

JUDGE DE JAGER: The children of the deceased were members of the IFP.

MR PANDAY: Mr Chairperson, after weighing all the evidence and that of the applicant and the victim's son it is my respectful submission that the applicant is merely trying to shadow his attack on the deceased as being that of political. We also received an affidavit by the implicated person, I concede that he has not testified but one must give weight to that.

JUDGE DE JAGER: But if that was so why should 50 or 200 people accompany him to attack the deceased?

MR PANDAY: Well Mr Chairperson as you said it may very well have been a group that was created or led by the applicant himself.

JUDGE DE JAGER: Yes they were led by him but were they ...(intervention)

CHAIRPERSON: Would they have gone to attack a devout Christian?

MR PANDAY: Well unfortunately Mr Chairperson we haven't had evidence as to whether the group was informed by any other means except for the version that we have of the applicant. Now we have to assume that the group that went out there went out on a political objective. Unfortunately the only evidence led here is that of the applicant and the sad part of it all is that the applicant upon cross-examination even in his statements submitted Exhibit A, merely emphasised the death of his brother. Had the applicant at one stage emphasised the political motive for going to kill Mr Mkhize, one may have accepted it. It's our respectful submission that this applicant has not made full disclosure.

CHAIRPERSON: I have just thought of a possible problem which I should have put to the applicant perhaps, that the reason for saying as I understand it, that the deceased was involved in the killing of his brother was because the deceased was alleged to have said "yes, if he had been working for me it wouldn't have happened" or words to that effect and it was on that it was based that there was witchcraft involved and what have you. But may the answer not be because we've heard now they ploughed together, they worked together, that when the brother was working for him he stayed and looked after the cattle on Saturdays and Sundays and didn't go to the village where he was run over by a motor car and that it's simply a statement of fact by the deceased that if he'd still been working for me he wouldn't have been run over? No indication that it was as a result of any action by the deceased?

MR PANDAY: Now Mr Chairperson, as you pointed out the applicant now merely interpreted what was said by the deceased and automatically linked witchcraft with it. He didn't give any other suitable examples or situations where witchcraft was used against the ANC except for the death of his brother. It's my respectful submission that the actions of the applicant were purely out of revenge and he wanted to revenge the death of his brother and as such does not qualify for amnesty in this matter. Thank you.

MR MAPOMA IN ARGUMENT: Mr Chairperson, I just want to respond to what the Chairperson has just raised now, the other possibility of explanation to the effect that the child must have been killed because had he not been on the road that would not have happened.

Chairperson, it will be recalled that the applicant in his testimony made it clear that out of the utterances of the deceased they formulated a certain idea that he might have bewitched the young boy. In fact he even went on to say that they had a meeting as a family about the utterances of the deceased person and in his affidavit on paragraph 7 he says:

"I had heard rumours from that my family that my brother who was killed in an accident a few days earlier was bewitched by the deceased."

So in a way Chairperson, this gives a clear mindset on the part of the applicant that the deceased was to condemn for the death of the younger brother, that was what was happening in the mindset of the applicant.

And Chairperson, one other point I want to raise, it will be recalled that the applicant in that area was a person who says he was a commander or a leader of that area of the ANC, an ANC which was newly launched at that time. During 1990, Chairperson, there was such excitement about the ANC and there were incidences in our country which we were aware, a person who seems to prominent about the ANC to be able to instigate the mob who'd use that for personal gains, to woo the masses, to go and do what will suit that person as a person. This is a tried example of what probably what might have happened in this case hence a mob of people. It is clear from what has been given here that the applicant to a certain extent did have a command on a number of youth there, that he agitated the position to the youth into believing what he made them to believe does not take away the fact that he was beater about the deceased, condemning him for the murder of his brother. Thank you Chairperson.

JUDGE DE JAGER: But even so Mr Mapoma, would that relate to a political situation?

MR MAPOMA: It would not Chairperson, it would not, that's my point. It would not, it would only advance personal revenge, hiding behind witchcraft. That's my point Chairperson, thank you.

MR DEHAL IN REPLY: May I just make three points in response?

Firstly, in response to the Evidence Leader's last point there is nothing before us to suggest in the slightest that the applicant had usurped his position which is common cause, his position as leader of the youth in the ANC to achieve his own private personal objectives. In fact the witness on the contrary concedes that he was a member of this ANC youth league, that there were distinct meetings and discussions at the meeting. We don't have evidence that "oh no, Mr Mafu was the leader of the youth league and he as Idi Amin always decided what's to be done and told us what's to be done". No he agrees as an objector that there were democratic meetings, there were discussions. So I don't think one can ever have regard to that suggestion of the Evidence Leader's, there is nothing to gainsay that or to support his contention.

On the same lines, insofar as the documents are concerned, especially the documents that the applicant's taken issue with, C, D, F, G and H, my learned colleague Mr Panday for the victim has endeavoured to suggest that one must regard to those documents and has endeavoured to suggest that there are some probabilities that favour it. Those suggestions that he has adduced do not emanate from the papers, we must know that one, the papers have been taken issue with. On the contrary, having been taken issue with they have not been proven. It's for the Evidence Leader and my learned colleague Mr Panday to prove them, they have not been proven. But apart from that thanks to yourself, Mr Chairperson, we have some documents that come off from the Westville files which read in conjunction with those documents that we seek to take issue with, favour the conclusion, favour the submission that on the probabilities themselves, these documents cannot be said to be one associated with the applicant. In the circumstances they must be regarded as documents that have not been proven and which alternatively on the probabilities cannot be regarded of those of the applicant's.

Insofar against that and on the alternative, insofar as Mr Panday's submission as regards the content of the document going against the applicant is concerned, the very opposite. In fact if you have regard to the content of those documents they do substantially favour the applicant more than his own application. If I take you to page 12 of the bundle the English translation of what is otherwise the Zulu in (d) or (c) shows that his membership began in 1988. It also shows that his father - sorry it does not say that his father was killed. In 9(a)(i) the comparable provision of Exhibit E, he says here rather "I killed Mkhize, we were also killing members of the ANC", he doesn't say that "my father was killed." But there are ...(intervention)

JUDGE DE JAGER: But the problem is should we use that or shouldn't we use it?

MR DEHAL: No, all I'm saying is I'm not taking that argument further to say use it. All I'm saying is one cannot say that the contents go against the applicant therefore he chooses to reject them, in the contrary it does go in his favour, he's just being as astute and prudent and honest as he can in saying they are not. He's in fact - I endeavoured, perhaps I can place this on record, in my consultations with him to tell him that the letters themselves go in great lengths to talking about ANC/IFP activity and could it not be possible that somebody wrote it on your behalf and your instructions and because you don't read English you don't remember them? He categorically denies them, I endeavoured to have them concede that they were his but I could not and verily for the reason that the contents particularly of the letters favour him. Thank you.

MR PANDAY IN REPLY: Mr Chairperson, if I may just briefly respond? Just stemming from my learned friend's argument that document seems to go in favour of the applicant. The fact is just today it was vociferously opposed that the English translation on pages 12 onwards were actually his because the problem one encountered thereafter is on page 14 where he admits that if one has to except these documents but if in ...(indistinct) did not come to me and say he's the one who killed by brother, Siboniso, and my dad, he wasn't going to die. Now that's one of the contradictions and now obviously it said otherwise the documents go in their favour.

Now if one has to look at the letters that were drafted the letters aren't totally in favour of the applicant if one has to peruse them. If I may just point Mr Chairperson, briefly ...(intervention)

CHAIRPERSON: He was not cross-examined on the contents of these documents with a view to showing that he must have provided the information contained in them?

MR PANDAY: This is just a response to my learned friend's ...(intervention)

CHAIRPERSON: Nor was he asked to show that the passage you've just referred to that that hasn't been correctly translated because there's yet another bit that hasn't been added on that should have been added on?

MR PANDAY: I concede that Mr Chairperson, but to just to point that the documents do not go totally in his favour. If one has to read the letters there are paragraphs that show that he was paying for the death of his father so one must not be under the misconception that the documents go totally in his favour, thank you.

CHAIRPERSON: Right, thank you gentlemen.

MR MAPOMA IN FURTHER ARGUMENT: Sorry Mr Chairperson, just one point. On the argument on the possible abuse of power on the part of the applicant I understand Mr Dehal says that there's no evidence to suggest that. I appreciate that but whilst that being the case it must be remembered as well that the applicant in his own words, in his application, on paragraph 11 (b) he says:

"We were ordered by no one in the organisation to do what they did"

And later on during the hearing he comes out with a particular Shezi, a Shezi who in his own affidavit, Chairperson, which is Exhibit B says:

"I categorically deny that I ever approved or gave instructions to Mr Mafu or anyone else to kill the deceased."

So it's a situation where I don't know really who gave the order that the deceased be killed.

MR DEHAL IN REPLY: It would on the face of it to be a good point but I'd be failing to say that the very paragraph of my learned colleague refers to on the next page concludes by referring to Cyril Shezi giving his address and pursuant to which Cyril Shezi came to be contacted by the Evidence Leader without which he would have never been contacted. I thank you in particular, thank you.

HEARING ADJOURNS