ON RESUMPTION: 27TH JULY 2000 - DAY 23

CHAIRPERSON: Good morning everybody. I see before us we have Exhibit P, the relevant extracts from the work entitled "Forensic Analysis of the Skull", by Iskan and Helmut. Does everybody have a copy of this?

MR VISSER: The pages Chairperson, by way of explanation, are only the ones that we referred to.

CHAIRPERSON: You made reference to, yes.

MR VISSER: But of course anyone is welcome to look at the whole thing.

CHAIRPERSON: Thank you. Mr Wills, you indicated yesterday that you'll be calling a witness.

MR WILLS: Yes thank you, Mr Chairperson. Two things have intervened. I believe Ms Thabethe has been requested to recall Ms Stephanie Miller, so we've arranged that if that's acceptable, that she'll go first.

I would like to just place on record at this stage, or make an application at this stage, Chairperson, that I apply to recall Dr Naidoo. There was one bit of evidence which I didn't put to him, which I think is material. He has been contacted and he would be available to come at midday today.

CHAIRPERSON: Yes, I can't see any objection to that. Is there any objection to that? Yes certainly, Mr Wills. Ms Thabethe, you say you wish to call Ms Miller.

Ms Miller, do you swear that the further evidence that you give at this hearing will be the truth, the whole truth and nothing but the truth, would you please raise your right hand and say I do.

STEPHANIE MILLER: (sworn states)

CHAIRPERSON: Ms Thabethe? Sorry, is ...(intervention)

MR VAN DER MERWE: Mr Chairman, may I assist. I am under instructions from Mr Nel just to put a certain statement to the witness, which is as a result of the Exhibits Q1, 2 and 3, the Section 29, or so-called Section 29 hearings of Andy Taylor. There's just one or two matters which he just wanted to make clear regarding the evidence that was led by Ms Miller during ...

CHAIRPERSON: Yes thank you. Mr Nel did approach me yesterday, not in connection with this evidence, but informed me and asked for leave to come late this morning because he had to go to the Magistrate's Court or something like that.

MR VAN DER MERWE: That is correct, Mr Chairman.

CHAIRPERSON: Mr van der Merwe?

MR VAN DER MERWE: Thank you.

CHAIRPERSON: Does everybody have a copy of Exhibit Q1, 2 and 3?

CROSS-EXAMINATION BY MR VAN DER MERWE ON BEHALF OF MR NEL: Thank you, Mr Chair.

Mrs Miller, you during your evidence stated that you obtained certain information from Andy Taylor regarding this incident during the Section 29 investigation and questioning, can you recall that?

MS MILLER: I can.

MR VAN DER MERWE: Have you since had an opportunity to look at Exhibits Q1, 2 and 3?

MS MILLER: I haven't had a look at Exhibits Q1, 2 and 3, although I'm aware of them.

MR VAN DER MERWE: Right. Well firstly, there's a couple of points which I was asked to put on record. If we look at Exhibit Q1, which is the transcript of the proceedings in terms of Section 29, you will notice on the second-last page of that, which is typed page 11, that the witness was never at any stage sworn in. I was asked to just stress that point. He was never under oath during this, this was an informal discussion up to that stage.

MS MILLER: That's correct.

CHAIRPERSON: Sorry, just before you proceed, Mr van der Merwe.

Were you actually present at these proceedings which are recorded here, Mrs Miller? 27th of November 1996.

MS MILLER: Mr Chairman, I was present when Mr Taylor prior - in the anti-room, prior to the hearings and I went in and out of the hearings, I did not stay for the ...

CHAIRPERSON: No I can recall you saying that earlier.

MS MILLER: And I recall being reprimanded for going in and out by the person having the hearings, that I should either be in or out.

MR VAN DER MERWE: Which is evident from the record, we can see that you were reprimanded there.

Secondly, when we look at Exhibit Q1, nowhere in this whole record is there any mention of the Ntombi Kubheka incident. Would you agree with that?

MS MILLER: I haven't read it, but it might well be.

MR VAN DER MERWE: You can take my word for it.

Then further, when we look at Exhibit Q3 which is the affidavit by Andrew Russel Carol Taylor, in response to the letter which was written by the TRC, Exhibit Q2, he says there in paragraph 27, where he intends applying for amnesty - it's on page 13 of that:

"I will state that to be the case and will then deal fully therewith in my amnesty applications, in order to avoid unnecessary duplication and that will not be done here."

So in this application he would have dealt with matters only that he didn't apply for amnesty for.

MS MILLER: My understanding is that questions - I must tell you I have not read this, but in discussions with my colleagues since we requested that this be supplied, or found ... (intervention)

MR VAN DER MERWE: Well let me help you out as far as that's concerned ...

MS MILLER: ... what I was advised was that a letter was written, which I do recall, was written to Mr Taylor putting a list of questions to him requesting ...(intervention)

CHAIRPERSON: That's Exhibit Q2.

MR VAN DER MERWE: That's right.

MS MILLER: ... asking for increased information and that's exactly what happened, he omitted certain items, or didn't answer all the questions.

MR VAN DER MERWE: That's right. Let me help you. Exhibit Q2, on the 6th page, paragraph 15, the question was posed to Mr Taylor regarding the abduction, torture and killing of Ntombi Kubheka and Sibo Phewa(?), in 1986. When we go to the affidavit of Mr Taylor, where he deals with all these matters and the questions that were put to him, and that is in his affidavit, page 19, after paragraph 38 you will notice that he does not deal with the question in paragraph 15 of Q2. He does not answer any questions in this affidavit. So my instructions are to put to you that when you gave evidence to say you got this information during the Section 29 hearings, it cannot be true.

MS MILLER: That is not correct. I thought I made it quite clear that I could not recall whether the information was acquired from Mr Taylor informally, in our discussions prior to the hearing or actually at the hearing. I did not recall at that time.

MR VAN DER MERWE: Well it's quite evident now that it was not at the hearing.

MS MILLER: It appears so.

MR VAN DER MERWE: Thank you, Mr Chair.

NO FURTHER QUESTIONS BY MR VAN DER MERWE

CHAIRPERSON: Thank you, Mr van der Merwe. Mr Visser, any questions?

MR VISSER: No thank you.

NO QUESTIONS BY MR VISSER

CHAIRPERSON: Mr Hugo?

MR HUGO: No thank you, Mr Chairman.

NO QUESTIONS BY MR HUGO

CHAIRPERSON: Mr Wills?

MR WILLS: No questions, Chairperson.

NO QUESTIONS BY MR WILLS

CHAIRPERSON: Mr Samuel?

MR SAMUEL: No questions.

NO QUESTIONS BY MR SAMUEL

CHAIRPERSON: Ms Thabethe?

MS THABETHE: No questions.

NO QUESTIONS BY MS THABETHE

CHAIRPERSON: Yes. Thank you, Mrs Miller, that concludes your evidence. Thank you.

WITNESS EXCUSED

CHAIRPERSON: Mr Wills?

MR WILLS: Thank you, Mr Chairperson. On behalf of the victim's families, I call the younger sister of the deceased in this matter, Ms Lyn Motoko Masetla nee Kubheka. Mr Chairperson, Ms Masetla has elected to testify in English.

CHAIRPERSON: Thank you.

LYN MOTOKO MASETLA: (sworn states)

CHAIRPERSON: Thank you. Mr Wills?

EXAMINATION BY MR WILLS: Thank you, Mr Chairperson.

Ms Masetla, you are the youngest child of the Kubheka family and the younger sister of the deceased in this matter, is that correct?

MS MASETLA: Yes, it is.

MR WILLS: Now as I understand it, you went into exile in December 1982 and it was around that time that you last saw your deceased sister. At that stage she was living in eSikhawini, is that right?

MS MASETLA: That's correct, but with a slight misinformation. I last saw her in December 1982, but I left for exile in 1983, February.

MR WILLS: Sorry, yes. Now during the ...(intervention)

MR LAX: Sorry, can I just clarify, was she living in eSikhawini when he last saw her in December '82?

MS MASETLA: My sister was living at eSikhawini when I last saw her, but I was in KwaMashu, but we frequented her - I had gone to visit her.

MR LAX: Okay, so you actually saw her in KwaMashu.

MS MASETLA: I had gone to visit her at eSikhawini.

MR LAX: Okay, fair enough.

CHAIRPERSON: Sorry, just before you proceed, MS Masetla, if you could just - how many brothers and sisters did you have?

MS MASETLA: We were four sisters in the family and one brother, but of course two have since left us. So we are now two sisters and one brother.

CHAIRPERSON: Thank you very much. Mr Wills.

MR WILLS: Now just for the record, your brother is Themba Muzwake Kubheka, your surviving brother, and your surviving sister is Sibongile Gugu Kubheka, is that correct?

MS MASETLA: That's true.

MR WILLS: And they too are both older than yourself?

MS MASETLA: Yes, they are.

MR WILLS: Well they tell me that you are the person in the family that most resembles the deceased in this matter, would you agree with that?

MS MASETLA: Yes, I would, it looks like ...(indistinct)

CHAIRPERSON: Sorry we couldn't hear properly, there was some banging on the microphone. Ms Masetla, do you mind just repeating that answer please. The question was put to you by Mr Wills - well the statement was put to you by Mr Wills, that he's heard that of all the siblings you were the one that most resembled Ntombi in appearance.

MS MASETLA: Yes, I agree.

MR WILLS: Now you had regular contact with your sister prior to you going into exile, can you briefly describe to the Committee the type of person that she was.

MS MASETLA: If my memory serves me well, eSikhawini was opened around 1979 and then I went to stay with her.

MR WILLS: Carry on.

MS MASETLA: That was because the husband then wasn't staying at eSikhawini, so she was on her own and the husband would go to eSikhawini over weekends because he was a taxi man. But also additionally is the fact that I come from a very humble family. My mother was a domestic servant and my father was a labourer and my sister being the eldest in the family, was more of a mother to us, to all of us, and as a result of that she left the school at an early age, she didn't finish - she didn't even go to her high school education because she had to help my parents with us because they couldn't afford to look after all five of us. But especially with myself she was more of a mother because as Mr Wills has said, correctly so, that I was the baby of the family and she really looked after me.

CHAIRPERSON: How many years younger than her were you?

MS MASETLA: I was born in 1958.

MR WILLS: I think approximately 19 years, is that correct? She was born in '37.

MS MASETLA: '46.

MR WILLS: Sorry, 12 years, yes. Now what about her generosity? You've indicated a story about her in KwaMashu when she was living with your mother at KwaMashu, I think it would be quite important for you to relate that to the Committee briefly. The story about the children.

MS MASETLA: My sister, as I've said because of the fact that she was the eldest and she felt like more of a mother, she behaved like more a mother to all of us. She assumed that position and that was also clear with the children's neighbours or any other child that was younger than her that needed to be looked after. And as a result our house ended up not just being a family house only, any other child that she would come across on the street, the child that is hungry, she would look after that child or start cooking, do all those things.

But also it sums it up, the very fact that she looked after me as a mother, being the baby of the family and the very fact that when she took me to eSikhawini, she was my mother there. She looked after me and anything that I needed I got from her. The very fact that she even helped in schooling my brother, who then went to - proceeded with his education to high school level. He went to boarding school. All those responsibilities she assumed them to relieve my mother from them.

MR WILLS: Thank you. Now what are the recollections of the physical appearance of your sister when you last saw her, which was late in 1982? Can you comment on her height in relation to you?

MS MASETLA: My sister was slightly taller than me, it might one or two centimetres as I'm 1.48. She was slightly taller than me.

MR VISSER: I'm sorry, could I ask Ms Masetla to speak up, Chairperson, I've got my volume full blast on and she seems to swallow words that I don't quite hear.

CHAIRPERSON: Could you just please repeat that, Ms Masetla, you said she was slightly taller than you, and then you mentioned one or two centimetres, is that what you said?

MS MASETLA: Yes I have, Mr Chair.

CHAIRPERSON: And then did you mention your height?

MS MASETLA: Mine is about 1.48.

CHAIRPERSON: 1,48?

MS MASETLA: Yes. Thank you.

CHAIRPERSON: Thank you.

MR WILLS: Now as regards to her general stature, her girth, I think you referred me to the photograph which appears in the bundle, Exhibit R, the colour photograph ...(intervention)

CHAIRPERSON: Which one in the bundle?

MR WILLS: It's the second-last photograph. We haven't labelled these, Mr Chairperson ...(intervention)

CHAIRPERSON: ...(indistinct - no microphone) seems to be sitting on a fence post.

MR WILLS: Ja. If we could just do that for convenience, Mr Chairperson. If we go to Figure 25 ...

CHAIRPERSON: Yes I think so, Mr Wills, let's do that. We've got Figure 25, which is the bullets and then we've got a mother and child photo, that will be Figure 26. Then we have the photograph of Ntombi sitting on a bed, that will be Figure 27. Then we have this one that you're talking about now, sitting outside a house, that will be Figure 28. Then we have the one of standing next to a motor vehicle, that would be Figure 29.

MR LAX: 28 is what you're referred to as the "fence post"?

MR WILLS: Yes. I'm showing the witness Figure 28 and just to get this in context, do you know when and who took this photograph? When this photograph was taken and who took it.

MS MASETLA: The photograph was taken by myself when I was living with her at eSikhawini. That was around the period of 1982.

MR WILLS: So we can therefore assume that this is what she looked like when you last remembered her.

MS MASETLA: This is how she looked like.

MR WILLS: Now turning to the other photograph - I'm referring the witness, Mr Chairperson, to Figure 26, the mother and child photograph. Now we know that - can you identify the baby in the photograph?

MS MASETLA: The baby is her daughter, Tulisile.

MR WILLS: And the daughter was born on the 30th of March 1983, is that correct?

MS MASETLA: Yes, it is.

MR WILLS: And you would estimate as - Mr Chairperson, I'm leading the witness to save time, if there're any objections obviously I will take them.

CHAIRPERSON: Yes.

MR WILLS: But your estimation is that the baby is approximately six months old in this photograph, is that correct?

MS MASETLA: Yes, if my memory serves me right I had left already and this photograph might have been taken the second half of 1983.

MR WILLS: Yes. But that's an assumption based on the age of the child?

MS MASETLA: Yes.

CHAIRPERSON: Sorry, you say the photograph might have been taken in the second half of 1983?

MS MASETLA: Yes, it's true Mr Chairman.

CHAIRPERSON: Sorry I must have got it wrong then. So when was the child born, the 30th of March '83?

MS MASETLA: Yes, it was Mr Chairman.

CHAIRPERSON: I've got '86 here, I don't know why. So the photo must have been taken plus-minus, or during the course of the second half of 1983.

MR WILLS: Yes, but other than that - and obviously that is your sister in the photograph.

MS MASETLA: That's my sister.

MR WILLS: Now this Figure 27, can you throw any light on this photograph as to when it was possibly taken? This is the photograph, Mr Chairman, of the deceased sitting on a bed.

MS MASETLA: This photograph was also taken when I had left the country and it's after the birth of her child, when she was breastfeeding.

MR WILLS: Now what makes you say that?

MS MASETLA: I'm saying this because my elder sister, the one who is still alive at this point, Gugu, was still in the country then, she hadn't left and when we were speaking with her because I didn't recognise it to have been taken whilst I was still in the country, she was certain that it was after that.

MR WILLS: Now just going back to Figure 28 ...(intervention)

MR LAX: Just before you do that.

When did Gugu leave the country?

MS MASETLA: She left around 1986, if I'm not mistaken.

MR LAX: Thanks.

MS MASETLA: But then maybe it's also - what I need to add is the fact that she is certain because she also did live with her at some point before she left the country.

MR WILLS: You're saying Gugu live with your ...(intervention)

MS MASETLA: Lived with my sister before she left the country.

MR WILLS: ... with deceased for a while before she left.

MS MASETLA: Yes, at eSikhawini, at her place, yes.

MR WILLS: Now just returning to Figure 28, can you tell us where that photograph was taken?

MS MASETLA: This photograph was taken at eSikhawini, H105.

MR WILLS: This is the house in the background?

MS MASETLA: Yes, that's her house at the background.

MR WILLS: Now turning to Figure 29, can you comment on approximately when this photograph was taken?

MS MASETLA: The photograph also on Figure 29 was taken when I had left the country.

MR WILLS: Now why do you say that?

MS MASETLA: I'm saying this because the house at the background is also the house at eSikhawini, H105, and when I lived with her then we didn't have any cars and the husband then was driving the taxi, the kombi that he was using, and he would be there only over the weekends. And I know for the fact that after I had left the country they had a workshop which I think they still had until recently and my sister was also helping in working at the workshop. So my assumption is that this car might be the client's car.

CHAIRPERSON: Sorry, when you say a workshop, you mean a shop in which cars were serviced and repaired?

MS MASETLA: Yes, Mr Chairman.

MR WILLS: Now Mr Chairperson, I don't know if these other photographs which we were given today, I don't think they've been given exhibit numbers.

CHAIRPERSON: I don't think - we haven't been given them yet.

MR LAX: We haven't got them yet, no.

CHAIRPERSON: Is that the photograph referred to yesterday, the one that we saw on the video, the frontal photograph?

MR WILLS: Yes. Maybe I've jumped the gun, I saw a pile of them when I was consulting downstairs, so possibly they are going to be handed in. But be that as it may, I will refer to this and possibly - I don't know where the rest are ...(intervention)

CHAIRPERSON: I think if that photograph's going to be handed in, we can at this stage call it R30.

MR WILLS: Thank you, Mr Chairperson.

Now looking at R30, are you able to say when this photograph might have been taken?

MS MASETLA: I'm not very certain, but this photograph is a passport or an ID size photograph that I found with mine. It might have been around the '80s, when she was looking for the ID. I cannot vouch for that.

CHAIRPERSON: So when you found it, it was one of these small passport size photographs and it's been blown up now, obviously?

MS MASETLA: I had it in my possession, so it was just blown up. It is myself who provided it when we were looking for - the doctors were looking for photographs.

MR LAX: Can I just clarify something. Was that obviously taken before you went into exile?

MS MASETLA: It looks like it was taken before I left for exile.

MR LAX: Thank you.

MR WILLS: And assuming it was ID photograph and used for an ID book, is it not so that we've been through documentation and we were able to establish that the ID number was issued before June 1980, is that correct?

MS MASETLA: Yes, it is.

MR WILLS: So the chances are, on those facts, that this photograph might have been taken before that period.

CHAIRPERSON: Sorry, you say the ID was issued before June...?

MR WILLS: June 1980.

CHAIRPERSON: Now why do you pick on June?

MR WILLS: Mr Chairperson, all I can say is that we've tried to get the file at Home Affairs, it has disappeared. The ...(intervention)

CHAIRPERSON: Do you get the June from the number, ID number or ...?

MR WILLS: No, what has happened Mr Chairperson, and I don't think it's a contentious issue, we've gone through certain documentation and there was an application for a house, something to do with a house in eSikhawini and the ID number was placed on that application and that application was dated in June 1980. So we're assuming that this photograph was used for purposes of that identification document.

CHAIRPERSON: I understand, thank you.

MR WILLS: Thank you. We'll move off the photographs.

Now just turning to the dresses that have been labelled, Exhibits 5 and 6, tell me how did you come across those dresses?

MS MASETLA: The day that Mr Visser was asking for the other dresses we went home that afternoon and we went to look. That's KwaMashu ...(indistinct) ...23. We went to my mother's bedroom to look for my sister's dresses because we knew that there were bags that were containing their clothing. That is the bag, the suitcase that contains my sister's belongings and the suitcases that contained my mother's belongings and the suitcases that contained my late sister's belongings. So we opened those suitcases and whenever we'd be opening any one of them we would ask the children whose clothes are these and - that's my sister's children, particularly the elder one, the boy, because then he was big then and he knew where - he was staying with my mother in KwaMashu, he knew what was happening. Then he was able to say - to identify my sister's suitcase.

And then we would take out the clothes from there and just open them, stretch them and show them to him and we'll verify whether any of the items of those clothings were my sister's, and he confirmed that with us. When I talk about "we", I'm talking about my sister, Sibongile and myself, because I went home with her. So that's how we identified those dresses.

MR WILLS: So as I understand it, you went home to the family home in KwaMashu. There were certain suitcases. One was identified as being the one that contained your sister's, your deceased sister's belongings. You opened the suitcase, took out two dresses and they were verified to be your sister's by Clifford Thamsung Kubheka, is that right?

MS MASETLA: That's true.

MR WILLS: And then you brought them in to the Committee.

MS MASETLA: That's correct.

MR WILLS: Now you mentioned that Clifford - well, let me ask you, do you know how old Clifford was at the time of your mother's disappearance?

MS MASETLA: Clifford was born in ...(intervention)

MR LAX: Sorry, sister's disappearance.

MR WILLS: Sorry, sister's disappearance. I'm terribly sorry.

MS MASETLA: Clifford was born in 1969, at the end of January. He might have been about 18 around that period.

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

NO FURTHER QUESTIONS BY MR WILLS

CHAIRPERSON: Thank you, Mr Wills. Mr Visser, do you have any questions?

CROSS-EXAMINATION BY MR VISSER: Yes, thank you Chairperson.

Can you tell us Mrs Masetla, what month of 1983 you left into exile?

MS MASETLA: I left in February 1983. It might have been around the 14th of February.

MR VISSER: And were you aware of your sister, Ntombi Kubheka's political activities in the country?

MS MASETLA: No, I wasn't aware.

MR VISSER: You weren't. Are you aware that your sister, Sibongile, made a statement to the TRC? Gugu Sibongile. It's in bundle 2, page 4.

MS MASETLA: Yes, I'm aware.

MR VISSER: And she appears to have been aware of certain political activities by - or rather, of your sister Ntombi, and I want to refer you to page 15, where the question is asked:

"Why did it happen?"

referring to whatever happened to the victim, and she said:

"We assume that she was killed because of her involvement, direct, with the MK unit that contacted her when they were infiltrated. Also four members of her family were in exile and ANC members and her other ..."

CHAIRPERSON: Her mother.

MR VISSER: I'm sorry.

"... her mother (late) was actively involved in ANC activities."

Would you agree with that?

MS MASETLA: Yes, I would agree with that.

MR VISSER: Alright. If I may be personal now, because that was your evidence, it was about your own personal length and so on. Mrs Masetla, would you mind terribly if during the tea adjournment we just took a measurement of your length?

MS MASETLA: I don't mind.

MR VISSER: You don't mind.

MS MASETLA: But I would have - I would like to remind ourselves that we did provide that, my measurements which were taken and the doctor was there. We went to the District Surgeon.

MR VISSER: Yes. You see that's really the problem, because there were two measurements provided for you. One of 1,58 and the other is 1.48.

MS MASETLA: If you ...(intervention)

MR WILLS: Sorry, with respect Mr Chairperson, the measurement, the only measurement that I can recall having been provided was a measurement taken by Dr Naidoo and placed on record as 1,48.

MR VISSER: Do you know whether your sister - was your sister ever present during the hearings of this case? Your sister, Sibongile.

MS MASETLA: Can you repeat yourself.

MR VISSER: Was Sibongile present during the hearings, with you here?

MS MASETLA: Yes, she was.

MR VISSER: She was.

MS MASETLA: And she still is.

MR VISSER: She still is. Do you know whether her measurements were taken at any time?

MS MASETLA: Her measurements were taken also and were provided together with all the ...(indistinct)

MR VISSER: And before that? Do you know?

MS MASETLA: Before when?

MR VISSER: Before now, before this session. Look, at this session measurements were taken of you and of your brother and of your sister, remember?

MS MASETLA: Yes, they were taken.

MR VISSER: And was it done previously as well or not? As far as you know.

MS MASETLA: I would assume that my sister's measurements have been taken before but not necessarily for this session. The ones that were provided in this session were taken when we were all together.

MR VISSER: Yes, I just want to make absolutely sure what we're talking about, because I will refer you to what is at page 1899 of the record. At the foot of that page it says:

"FURTHER CROSS-EXAMINATION BY MR WILLS:"

I'm going to read it, just to prevent any uncertainty. Mr Wills says:

"Sorry, you describe the size of the deceased as being large ..."

and this is Mr du Preez that gave evidence.

"As regards her height, what would you estimate her height to be? Was she short?"

MR DU PREEZ: I think she was of average height.

MR WILLS: Well, can I just ask Mrs Masetla to stand up please."

That was in September last year. Now were you the person that was asked to stand up?

MS MASETLA: Yes, I was the person.

MR VISSER: Okay, so we're talking about you, okay? And Mr Wills continues:

"Now can you estimate her height in relation to Mrs Masetla?"

that is now Ntombi's height. He says:

"Is she a similar size?"

then he says:

"Our evidence is to the effect that she was a similar height, specifically height to Mrs Masetla."

Now that's not entirely correct, because you told us that Ntombi Kubheka was slightly taller than you, one to two centimetres, is that correct?

MS MASETLA: I've said that.

MR VISSER: Then says Mr du Preez:

"It's possible, Chairperson. The impression that I had was that she was a very large woman and she was very heavy. Her height, I would say approximately the same height, or maybe taller."

referring to you. And then we come to the reason why I'm asking you whether you will allow us to measure your height.

"MR WILLS: Thank you, Mrs Masetla.

The evidence of the family will be that she was a particularly short woman of similar height to Mrs Masetla, although she was quite large. Thank you."

then:

"NO FURTHER QUESTIONS BY MR WILLS"

I say something and that is:

"Can we now know how tall Mrs Masetla is, otherwise the whole exercise is meaningless."

and the Chairperson makes a remark and Mr Wills says:

"1,58 seems to come from the gallery."

So he was told from the gallery 1,58 in relation to your length. That's 10 centimetres taller than what the Doctor now measured you at. So if you don't mind, we just take a quick measurement, make a mark on the wall and we'll know exactly what the story is. If you don't mind.

And Chairperson, while I'm about that, we haven't had any feedback on Mrs Dludla. I notice that she's here. She signified that she would have no problem with that and perhaps we can do that in the teatime as well.

CHAIRPERSON: Yes.

MR VISSER: Thank you. Would you describe yourself as being a thinner person than Ntombi Kubheka, or do you say you are fatter or stouter than Ntombi Kubheka? Or the same?

MS MASETLA: Not the same, but I'm not thinner to her. I may be a little smaller, not thin.

MR VISSER: Would you generally say that Ntombi had small breasts or medium breasts or large breasts, how would you describe that?

MS MASETLA: Depending on the period like when she was breastfeeding, then of course the breasts would enlarge.

MR VISSER: Yes, of course.

MS MASETLA: But I would - I'm trying to remember her before I left. She had - the top was almost my size.

MR VISSER: Would 110 centimetres be approximately right?

MS MASETLA: I can't tell you, I'm not sure.

CHAIRPERSON: Just for record purposes, seeing Mrs Masetla sitting here she certainly to me, does not appear to be a large woman.

MR VISSER: Yes. Thank you, Chairperson.

I want to just refer you to photographs in Exhibit R, and seeing that you've now referred to Exhibit R29 I'm going to through you, place something on record. It seems that on Exhibit R29, the person on the photograph is standing next to a motor car. I, Chairperson, can't make out what type of car it is, unfortunately.

CHAIRPERSON: I tried to do so myself, but I couldn't.

MR VISSER: It would seem to be slightly larger than a middle sized car.

CHAIRPERSON: It does seem to be quite a large car with a vinyl roof, I think.

MR VISSER: Yes, correct.

And would you agree ...(intervention)

CHAIRPERSON: I would venture to suggest if it looks like anything, it might be like a Valiant.

MR VISSER: In fact. That's the closest I would guess, yes.

Would you agree on that photograph, Mrs Masetla, that the person standing next to the car is approximately a head taller than the top of the roof of the car? If not more. Given the fact that the car is obviously sloping downwards with its nose.

MS MASETLA: Looking at it roughly, I would agree.

MR VISSER: Yes. Now do you know motorcars at all? Do you know a Nissan Sentra?

MS MASETLA: I have an idea.

MR VISSER: Yes it's a medium sized, it's a smallish medium sized motorcar. I want to put to you, and I do that for the reason that anyone can then check it if they disagree, that the top of the roof of a Nissan motorcar is 1,35 metres, given a millimetre or two either side - I'm not going to argue about that, but roughly 1,35 millimetres(sic). Would you - well I wouldn't ask you to agree with it or not, I'm just placing it on record. And I'm putting to you that if you took the measurement of a person's head, it would come to approximately 20/30 centimetres, which would bring us to around 1,6 metres. Was that how tall Ntombi Kubheka was?

MS MASETLA: I cannot estimate that, but all I can say certainly for sure was that she was slightly taller than me, as I said.

MR VISSER: Yes. Would you really ...(intervention)

MR LAX: Just to be fair, Mr Visser, you did run the thing right along your head from around, rather than in a straight.

MR VISSER: Chairperson, this is not a scientific evidence, but 25/30 does - around 1,6.

CHAIRPERSON: Yes, 30 centimetres in the old terminology is a foot.

MR VISSER: Yes.

CHAIRPERSON: My hand is 8 inches.

MR VISSER: Yes, 37 would be a ...

CHAIRPERSON: So it's less than 30.

MR VISSER: Ja, make it 25, plus 1,35 brings you to around 1,6.

Would you Mrs Masetla, ever have described your sister, Ntombi Kubheka, as a considerably short person? Would you have described yourself as a considerably short person? As a female person.

MS MASETLA: I am short myself, but it's easier for me and also as we were growing up, you know we are - my family is not tall, but it's easier for me if I make it in relation to us, because I'm taller than my sister.

MR VISSER: Which sister?

MS MASETLA: My sister, Sibongile.

MR VISSER: Sibongile.

MS MASETLA: So this is why it's easier for me to say my sister was slightly taller because the two that are late, were slightly taller than us. So it's not tall in general, but it's compared to the other members of the family.

MR VISSER: Yes, I accept that.

MS MASETLA: This is why it's easier for me.

MR VISSER: Fair enough. And Ntombi Kubheka's daughter, she's very tall, isn't she?

MS MASETLA: Yes, she is. I don't have to justify that also, but it's important to note that the father's side is very tall and in all respects she resembles the father. In the same fashion you look at the son also, he is tall.

MR VISSER: Yes 1,7 or something.

MS MASETLA: We do not - when we reflect on the height of the family, like I'm saying I'm comparing my sister with her siblings, we do not reflect on them because the children are taller.

MR VISSER: Yes. Mrs Masetla, you said that on photograph, Exhibit R27, if I understand your evidence correctly this photograph was taken after you had left in - you said February ...(intervention)

MR WILLS: Are you referring to R27?

CHAIRPERSON: The photograph of Ntombi sitting on the bed with what seems to be some money and a note book.

MR VISSER: Yes, yes.

Now you say, or you said in your evidence:

"This was taken when I left the country"

now do you mean to say this was taken after you had left the country?

MS MASETLA: "After I had left the country", qualifying that is the fact that my sister knew the house more than I did then because she had lived with my sister, but also for me she's counting money. She had no business then when I was still in the country and the only business they had was one of the taxis which of course the husband when he was staying here in Durban, in Inanda, he only went to eSikhawini, joined her or joined us at eSikhawini over weekends. So she had no reason to count the money.

Now this is why I'm saying "after I had left", because they had a business of the car workshop and she worked in that business, she ran it, that business. So for me she's counting the money. And my sister confirmed that she recognised the bedspread. She recognised the fact that my sister was breastfeeding then. So those are all the factors that made me realise that, or roughly say I had left the country already.

MR VISSER: Yes, you know I was really only going to ask you whether anybody thought that at the time when this photograph was taken, Mrs Kubheka was pregnant. But that's not your inference, is it, that she was pregnant at the time?

MS MASETLA: Myself I did - maybe you picked up the passage talk, I did say on the corridors when we were talking, we were trying to speak to recognise ...(indistinct) I did say "Sibo, wasn't she pregnant at that time?" That's what I thought, and Sibo said - that's my sister, she said "No, she was breastfeeding." ...(indistinct)

MR VISSER: So it's really her evidence, not yours, that's what you're saying? You're drawing all sorts of inferences from she told you?

MS MASETLA: I think I've qualified that with my reasoning also, that there is money being counted, she's got a book there and when I was staying with her before I left the country, that facts was not there.

MR VISSER: When did ...(intervention)

MS MASETLA: So I qualified hers with mine.

MR VISSER: When did the husband, as you referred to him, start with his taxi business? Wasn't it at the time between 1979 and '83, when you lived with Ntombi Kubheka?

MS MASETLA: He was - Kehla, Kehla Ngcobo, he was a taxi man even before they met with my sister. He was coming from Inanda area. He was running taxis in this area, Inanda and Durban.

MR VISSER: And I take it as a good husband, sometimes he would give Ntombi Kubheka money, surely?

MS MASETLA: Yes of course, he would give her money, but I did say she had no reason to count the money and also I know very well, it's a fact that I stayed with her. I went to stay with her when eSikhawini was opened, because it was a new area. I went to stay there with her. I know for the fact.

MR VISSER: Yes. When you say Exhibit R26 refers to the daughter, are you talking about the person who is referred to as Tuli?

MS MASETLA: That's Tulisile Pheki.

MR VISSER: Yes. And that is the daughter sitting here?

MS MASETLA: That's the only daughter she has, the one sitting here.

MR VISSER: Did you ever know this child as a baby, or had you left already?

MS MASETLA: Come again?

MR VISSER: Did you know this child as a baby?

MS MASETLA: I didn't know her as a baby, I had left. She was born shortly after I had left.

MR VISSER: Yes. So how would you know that this - because you were asked and you said:

"This is her when she was six months old."

MS MASETLA: Did I say she was six months old?

MR VISSER: Yes, indeed, you were led to say that.

CHAIRPERSON: You said approximately six months old and it was estimated that this photograph was taken in the latter part of 1983, and the child was born as far as I can recall you saying, in March 1983. I think that was what was said.

MS MASETLA: When I said roughly the second half of 1983, I knew because I was sent the photos of her as a baby and amongst the collection of my photos I've got her there.

MR VISSER: Now I want to talk to you about that collection of photographs. Do you have more photographs of Ms Ntombi Kubheka?

MS MASETLA: Apart from the ones that I provided, I do not.

MR VISSER: You do not?

MS MASETLA: No.

MR VISSER: In September last year - let me ask you this first, do you live in Pretoria?

MS MASETLA: I live in Johannesburg, I stayed in Pretoria then.

MR VISSER: Alright. In September last year we were told that one of the sisters, and I think it was you, had photographs in Pretoria of Mrs Ntombi Kubheka and that they would be provided later ...(intervention)

MR WILLS: Sorry, where was that told, Mr Chairperson? If we can just refer to the record in that regard.

MR VISSER: Chairperson, if Mr Wills wants to dispute that, that was said by Mr Wills to both Mr Wagener and myself in the hall during an adjournment after we had for about the fourth time, asked for photographs. But if Mr Wills wants to dispute it, Chairperson, let me read to you what is at page 1905. Mr Wills in the second part of - one third from the bottom:

"CHAIRPERSON: Have you had an opportunity to discuss the possibility of going off on an inspection?"

says the Chairman.

"MR WILLS: Yes, thank you, Mr Chairperson. Firstly, on the photographs I just want to place on record that the family have no problem in handing over photographs. The problem being, is that the family's homes are no longer in the KwaZulu Natal area and the family is employed in Pretoria and obviously Mr Kubheka is in Denmark, but we will endeavour to get those photographs as soon as possible and hand them over. We have no objection to do that. I have discussed with Wagener they types of photographs he wants and we'll try to oblige him in that regard."

That's what I'm referring to. That's the discussion I'm referring to.

MR WILLS: Mr Chairperson, if I could just emphasise this because much play is being made in this regard. We have tried to oblige in that regard. We have done searches, the family have done searches for photographs. At no stage did I say we have definitely got photographs. I, as can be seen from the context of this transcript, I certainly have never seen the photographs. We assumed that there may be photographs in Pretoria, searches have been done and no additional photographs have been found.

CHAIRPERSON: Yes but when - at that stage did we have these photographs?

MR WILLS: No.

CHAIRPERSON: Yes, where did these photographs come from? I mean we've got photographs and they're here in these Figures, 26 etcetera, 26 to 30.

MR WILLS: Now these photographs, Mr Chairperson, were handed to the - as I understand it, were handed to the Truth Commission much before my involvement in this matter and they were retained by the persons giving medical evidence, and after the searches for photographs it was established that there were no other photographs and that these were the only remaining photographs. And all I can say, and I don't think Mr Visser's being fair, with respect he's trying to say that we are - the inference of his evidence is that we are trying hide evidence from this Commission, and with respect, that isn't the case. Searches have been done for photographs and no other photographs can be found. It's as simple as that.

MS THABETHE: Mr Chair, can I also put it on record that the TRC did not have any photographs in their possession.

CHAIRPERSON: Thank you, Ms Thabethe. Mr Visser?

MR VISSER: Chairperson, may I ...(intervention)

CHAIRPERSON: You see there can't be - I'm just thinking aloud, I can't see any reason why some photos would be made available and not others. I mean you don't have a photograph of - you know if you're going to hand five or six, if there's five or six available, there's no real reason why others should be withheld.

MR VISSER: Except one thing Chairperson, and that is I'm going to make certain, and I may say strong submissions in this regard to the Panel at the end of the day, because Chairperson, you will recall that we didn't just ask for photographs, we knew that what was in issue here were the length and the girth of Mrs Kubheka and possibly the teeth. We asked specifically for two types of photographs. One, showing her teeth and another type of photograph being a group photograph, preferably by people standing in a group with her, identifiable people. Those are the photographs we've asked. There was never any talk about any other photographs, those were the ones we were interested in. That's what we discussed with Mr Wills and we asked this Committee all the time.

MR WILLS: Yes. If I can just add to that. I concede that and I will place on record that I requested my clients to search for photographs like that. When they - after the last hearing, when they went back to Pretoria they conducted searches to that effect and my instructions were to the effect that there are no other photographs and I had communications I think in writing with Ms Thabethe prior to the setting up of this hearing, where that fact was known, that the only photographs that were available were those given to the medical practitioners and the family has not objection in those being handed over to Mr Visser.

CHAIRPERSON: Yes thank you, Mr Wills. Mr Visser.

MR VISSER: Thank you, Chairperson. If I may continue.

You referred to a photo album, is that what you referred to just now?

MR LAX: Collection.

MR VISSER: Collection, sorry. Thank you.

What do you mean by a photo collection? Is it in an album or what?

MS MASETLA: My photo collections as it is.

MR VISSER: Is it in an album, a photo album?

MS MASETLA: I suppose it entails both because I've got the photos that are not in an album, I've got photos in an album. But maybe before I come to that question, can I before we seal up the previous question of the photographs? One, if we had known and you have clearly stated that you wanted the photos that were showing the teeth, as the family we were going to say or respond back to say even the Doctors had asked when they were asking for photos. They had asked for the photos specifically amongst others, the photos that would be showing the teeth where she is smiling or laughing so to speak, so that it will be easier for them, but we were not able to provide that.

But also what comes up is the fact that my sister stays, Sibongile Gugu, she stays in Pretoria, so you cannot specifically say I stay in Pretoria and you asked for it. We both stay in Pretoria, so it wasn't necessarily put clear which one was going to find the photos, but being members of the family, both, we were going to look in our collections for the photos.

The photos that are available and I'm talking about, I've stressed that's the photos that I have provided. And for the fact the photos that are here are my copies.

CHAIRPERSON: Is this your entire set depicting the deceased, Ntombi?

MS MASETLA: These are the copies I had of my sister that were left. The other copies that I had been sent whilst I was outside - I wasn't in one country, in one occasion I was in Swaziland where my suitcase was taken and was never brought back, when the house I was staying in was searched by the Swazis, so I lost those copies there. I'm just only left with these copies that are here. So I provided all these photos. Thank you, Mr Chair.

CHAIRPERSON: Mr Visser.

MR VISSER: Thank you, Chairperson.

Are you a person who likes collecting photographs of your family?

MS MASETLA: Yes, I do.

MR VISSER: And your sister, Sibongile?

MS MASETLA: She does keep family photographs of course.

MR VISSER: You know what I find amazing is that in total we have five photographs of a person who grew to the age of 41 years and who had three sisters and a brother and a mother and a father, it's just amazing ...(intervention)

MR LAX: Hang on, why is it so amazing, Mr Visser? With the greatest of respect, the sort of tone of your question is not fair and I'm a bit unhappy about it. To say that it's amazing - you've been told of their financial circumstances, I mean you're making all sorts of assumptions in saying it's amazing that there are no other photographs, about their financial ability, their economic status, access to cameras. With the greatest of respect, I think it's a bit of an insensitive question.

MR VISSER: I will argue it, you don't have to answer it.

MS MASETLA: I'm not going to be answering it, but I think it's important to be stated here that more than anything we feel that we have been tried as family, especially by you, Mr Visser. You do not seem to show any remorse at all. By rights the Special Branch had been behind our family for years, all of us. They kept photographs which wherever you go or any person from the area or from Durban itself, goes wherever, whether you pass through the border or whether you are taken for questioning, you'll be shown that album. People came and told us "You are in that album, your whole family is there." And as our representative, our lawyer, Mr Wills has said, we were not and still are not under intentions at all to hide any evidence. But so far as we are concerned up until now, you have hiding everything. You should have provided us with the photos that you have kept of us, or your clients so to speak. So it's very sad and I think you are trying me more than anything. You are pushing us to the limit. Thank you, Mr Chair.

CHAIRPERSON: Thank you, Mrs Masetla. Mrs Masetla, are you alright?

MS MASETLA: Yes, I'm fine, thank you Mr Chair.

CHAIRPERSON: Mr Visser?

MR VISSER: Thank you, Chairperson.

Now the son Clifford, was he living permanently with Ntombi Kubheka, or what was the position?

MS MASETLA: Clifford he never lived with the mother, he was living in my mother's house, but of course he will frequent the mother from time to time.

MR VISSER: He lived with his grandmother and visited his mother, is that what you're saying?

MS MASETLA: He would visit his mother, yes of course.

MR VISSER: From time to time?

MS MASETLA: Yes.

MR VISSER: Where did he attend school?

MS MASETLA: He studied in Botha's Hill, he studied in KwaMashu, he studied in Lesotho.

MR VISSER: In Lesotho. His high school career, where was that, in Lesotho or here in Natal?

MS MASETLA: It was both in Natal and in Lesotho.

MR VISSER: Yes. And what I understand from your evidence today is the two dresses, Exhibits 5 and 6 that were here, that were brought here, were really identified by him as belonging to Ntombi Kubheka.

MS MASETLA: Yes, I did say that, that we took them out, we confirmed with him if the dresses were the mother's.

MR VISSER: Yes. Why not with Tuli, for example?

MS MASETLA: Tuli was young, she was a baby.

MR VISSER: I see. Why do you suppose have these dresses been kept for thirteen years and haven't been given to the daughters?

MS MASETLA: Traditionally that wouldn't be done. I've told you that we have my mother's things and we've got my sister's clothes, who has passed away, we've got Sisi Ntombi's clothes. Up till now, maybe it's still not up till now, until the truth be told we are going to be keeping those things until all the rituals have been done and they are cleansed and then we can then divide them amongst ourselves or they can be given to whoever it available at that point.

MR VISSER: I'm sorry, I didn't quite follow you. You say it will be divided up at some point, after what?

MS MASETLA: When we have finished with the rituals, when the clothes have been cleansed, when we have buried my sister and closed the case up.

MR VISSER: Alright.

CHAIRPERSON: How are these clothes being stored at the moment, Mrs Masetla? You've talked about the clothes of your mother and of Ntombi and your other sister.

MS MASETLA: They are in suitcases in my mother's bedroom in KwaMashu.

CHAIRPERSON: Are they all together, or what is the situation?

MS MASETLA: My mother's are in her bags in the suitcases on their own, they're not mixed so to speak Mr Chair. My other late sister's, Tuli, they are in their suitcases and my elder sister, Ntombi, they are in her own suitcase. So each one of the belongings are kept differently.

CHAIRPERSON: Yes, thank you.

MR VISSER: Were there any other clothes belong to Ntombi Kubheka in that suitcase?

MS MASETLA: Yes, there were.

MR VISSER: Can you give us any idea of what it was?

MS MASETLA: What do you mean what it was?

MR VISSER: What kind of clothes were they? In the suitcase.

CHAIRPERSON: You're talking ...

MR VISSER: Dresses, shirts ...(intervention)

CHAIRPERSON: Dresses, shirts, slax, shoes, jewellery, whatever?

MR VISSER: Yes.

MS MASETLA: There are dresses, there are shirts, they are skirts, there are belts.

MR VISSER: Yes. Would there be any objection if we could look at them?

MS MASETLA: If you could?

MR VISSER: Look at the suitcase and the contents of the suitcase.

MS MASETLA: Do you want us to bring the suitcase and the contents?

MR VISSER: That's what I'm asking. Would there be an objection to that?

MS MASETLA: There wouldn't be any objection, but I think after what I have raised with the way you have treated us, personally I would ask why do you want to see them and if you give me a valid reason for me to bring them, I would do that, but I don't see why I should be bringing them.

MR VISSER: Now Mrs Masetla, that's the second time you've blamed me for acting untowards to you. Now I want to put it to you that I'm here to do my work as a lawyer for my clients. I've not been disparaging to you or anyone of your family. I've gone up to those that I know are members of Kubheka's family, to your brother for example, I've introduced myself to him, to the daughter as well. I greet them every day. And I reject your imputation that I acted incorrectly towards you. Okay?

MS MASETLA: Thanks very much, I appreciate it.

MR VISSER: I have no further questions.

NO FURTHER QUESTIONS BY MR VISSER

CHAIRPERSON: Thank you. Mr Hugo, do you have any questions you'd like to put to Mrs Masetla?

MR HUGO: No questions, thank you Mr Chairman.

NO QUESTIONS BY MR HUGO

CHAIRPERSON: Mr van der Merwe?

MR VAN DER MERWE: I have no questions and no questions on behalf of Mr Nel as well, thank you Mr Chairman.

NO QUESTIONS BY MR VAN DER MERWE AND NO QUESTIONS ON BEHALF OF MR NEL

CHAIRPERSON: I've got a note here from Mr Samuel, excusing him and in which it is also stated that he has no questions for you. Ms Thabethe, do you have any questions you'd like to put?

MS THABETHE: Yes, Mr Chair, I do. But maybe before I do Mr Chair, I just want to put it on record that as the TRC, to the family we are very sorry that we had to put you through this, we realise how tough and how strenuous it has been on you as a family. We are very sorry. Especially with the clothes, I know traditionally clothes of a person who is deceased, you're not supposed to hang them anyhow, you know display them and everything. Traditionally it shows disrespect, so we are very sorry that we had to put you through that. On behalf of the TRC.

MS MASETLA: Thank you.

CROSS-EXAMINATION BY MS THABETHE: Now you have mentioned that Ms Kubheka, Ntombi the deceased was a bit taller than you in 1982, is that correct?

MS MASETLA: Yes, it's correct.

MS THABETHE: Now what I want to find out is, how old were you in 1982 would you say?

MS MASETLA: I was born in 1958.

CHAIRPERSON: You would be 24, plus-minus.

MS MASETLA: In the early '20s, yes.

CHAIRPERSON: Plus-minus 24.

MS THABETHE: Okay. And would you say in - you've been this height since 1982, or have you grown since then?

MS MASETLA: No, I haven't been this height since 1982.

MS THABETHE: So how tall do you think you were in 1982? Or maybe let me not put it that way. Do you think you were shorter than what you are now, in 1982?

MS MASETLA: I'm not sure, I don't know.

MS THABETHE: I'll tell you why I'm asking this question. I'm trying to ascertain, you are saying Ms Ntombi Kubheka was taller than you in 1982, and I'm not sure whether ...(intervention)

CHAIRPERSON: Do you know what your height was in 1982, Mrs Masetla?

MS MASETLA: No, I don't recall Mr Chair.

CHAIRPERSON: It would be unusual for people to still be growing when they're 24.

MS THABETHE: Is it, Mr Chair?

CHAIRPERSON: Well as far as I know, normally by the time you're 18 you've stopped growing. The older you get you start shrinking after a while, but when you're 24, I'd say that you may have - unless there's something unusual, but I think it's general knowledge that most people when they're 24 have reached their height.

MS THABETHE: Okay Mr Chair, I have no further questions. Thank you.

NO FURTHER QUESTIONS BY MS THABETHE

CHAIRPERSON: Mr Wills, do you have any re-examination?

MR WILLS: No re-examination, Mr Chairperson.

NO RE-EXAMINATION BY MR WILLS

CHAIRPERSON: Mr Lax, do you have any questions you'd like to put?

MS THABETHE: Sorry Mr Chair, before Mr Lax, can I impose please. I just wanted to put something else on record.

CHAIRPERSON: Yes.

MS THABETHE: About the pregnancy issue on the photograph ...(intervention)

CHAIRPERSON: The photograph of ...

MS THABETHE: Ja. I actually stated that on record that I thought I heard someone saying she might have been pregnant, but I was going to follow it up.

CHAIRPERSON: Yes thank you.

MS THABETHE: So I just want to put it on record that I didn't say it for certain that she was pregnant, I said I heard.

CHAIRPERSON: Yes, thank you.

MR LAX: Thanks, Chair. There was only aspect and that was on the question of the photographs.

You had more photographs of the deceased but you've lost some of them over time. That's what I understood your evidence to be, do I understand it correctly?

MS MASETLA: Yes, you do.

MR LAX: And the photographs that you have in your collection as you call it, those were either taken before you left or had been posted to you while you were in exile.

MS MASETLA: Both. Some of them before I left but some of them when I was outside I was sent some copies.

MR LAX: Yes.

MS MASETLA: But also when my mother came for the wedding she brought other photographs. But as usual, we were not able to come back with all the things that we have, coming back from exile.

MR LAX: Yes. My only question was, by some other chance, are there any other possible photographs that you might have received while you were in exile, that you might have? I'm saying you may have other boxes lurking somewhere that you may have put away that you might have forgotten about.

MS MASETLA: That might be possible. Not in my boxes so to speak, maybe in my in-law's place in Soweto, because I've got the things that are there, so that might be possible, I can't guarantee it.

MR LAX: Yes. All I'm asking is, you know when one generally looks in your possessions, you don't always think about you might have something somewhere else, like that. So that's why I was asking. And in fact, you may find there are other of your possessions elsewhere that you hadn't thought about, like now you're mentioning your in-laws.

MS MASETLA: Yes.

MR LAX: Could you possibly - I know that we're probably going to conclude these proceedings for the moment, but would you kindly go and look amongst those things and if there are other possible photographs maybe, it would just help us if you could make them available please.

MS MASETLA: I will try that. It might not be immediate, but I can be available to do that.

MR LAX: Within the next week or two, possibly.

MS MASETLA: That may be close. If I do come across something I'll provide it, but if there's nothing I will also let Mr Wills know.

MR LAX: Thank you, we would just appreciate that.

MS MASETLA: Thank you.

CHAIRPERSON: Advocate Bosman?

ADV BOSMAN: ...(inaudible) comment. Mrs Masetla, lawyers are a special breed, don't judge them too harshly. We are also victims of our occupations sometimes, so don't take it too personally.

MS MASETLA: Thank you, Advocate Bosman. I wasn't necessarily looking it as the approach of the lawyer so to speak, but I notice - I don't want to pursue it further, but I noticed it personally and as I say, I wasn't saying all of them or whatever, some of them have been very kind. To say hello, I am so and so, it doesn't necessarily reflect that you are being kind to a person or whatever. But as I say, I wouldn't like it to be a fight or an attitude towards Mr Visser or whatever. I was just commenting that this is how the family has felt, because of the reasons that I have stated.

ADV BOSMAN: No, we understand that.

MS MASETLA: We know for the fact that they had records.

ADV BOSMAN: No, we understand your vulnerability in the circumstances.

MS MASETLA: Thanks very much.

CHAIRPERSON: Well thank you, Mrs Masetla for testifying, we realise it certainly wasn't easy for you to come and testify and that you and your family during these last two weeks, indeed since these hearings commenced last year, have been going through difficult and traumatic times. And I can assure you that we at the TRC, certainly in no ways ever mean to cause any disrespect or harm to the family. We thank you for testifying. That concludes the testimony.

MS MASETLA: Thank you, Mr Chair.

WITNESS EXCUSED

CHAIRPERSON: Thank you. Mr Wills?

MR WILLS: Chairperson, the issue remains with Dr Naidoo ...(intervention)

CHAIRPERSON: Yes I see that we've run quite late, we normally stop for tea at 11 o'clock, but we'll take the tea adjournment, I see it's half past eleven now. I'm told that Dr Naidoo would be ...(intervention)

MR WILLS: He'll be available at twelve. I can get the Evidence Leader to phone him and then see when he will be available and I will advise the Committee.

CHAIRPERSON: Yes thank you. And then in the meantime as well during the tea adjournment, if we could get copies of that last photograph, the blown up ID or passport photograph which we called 30 I think. Thank you, we'll take the tea adjournment.

MR VISSER: Chairperson, may I just request ...

CHAIRPERSON: Certainly, Mr Visser.

MR VISSER: Just one clarification. Is it only Dr Naidoo, is that going to be the last witness to follow today, because we've got to try and make arrangements?

CHAIRPERSON: As far as I am advised that is so, I'm unaware of ...(intervention)

MS THABETHE: Mr Chair, I just have a statement that I requested from Mr Attie Moolan(?). Attie Moolan worked at - he works in Stanga hospital, but if you remember Stanga hospital was also responsible for the ...(intervention)

CHAIRPERSON: Are you talking about the mortuary or the hospital?

MS THABETHE: No, he works in Stanga hospital now, but he was working at the mortuary then.

CHAIRPERSON: Oh yes.

MS THABETHE: I've requested him to write a very short statement stating what happened from the time the body was exhumed, taken to Stanga, from Stanga what happened up until Dr Naidoo. I don't know whether people are going insist that we call him. I don't see the ...(intervention)

CHAIRPERSON: Well I think if you can speak to each other during the tea adjournment, I don't think it's for us to make any finding on that now. Thank you.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Mr Wills?

MR WILLS: Thank you, Mr Chairperson. Mr Chairperson, we have Dr Naidoo, can he be sworn in?

CHAIRPERSON: Dr Naidoo, do you swear that the further evidence that you give in this hearing will be the truth, the whole truth and nothing but the truth, please raise your right hand and say I do.

S R NAIDOO: (sworn states)

CHAIRPERSON: Thank you.

FURTHER CROSS-EXAMINATION BY MR WILLS: Thank you, Mr Chairperson, and also to record my appreciation of Dr Naidoo for coming so promptly.

Dr Naidoo, on the 24th of July, were you present at the District Surgeon's rooms in Durban when ...(intervention)

CHAIRPERSON: Sorry, is that this year?

MR WILLS: Yes, 24/7/2000.

... when another Dr S Naidoo, I think being one of the District Surgeons in Durban, took certain measurements and heights in relation to Sibongile Gugu Kubheka, Lyn Motoko Masetla, Themba Muzwaki Kubheka, Clifford Tamsanqa Kubheka and Peggy Tulisili Kubheka?

DR NAIDOO: Yes, I was.

MR WILLS: And is it not so that he took the weights and heights of each of these individuals?

DR NAIDOO: That is correct.

MR WILLS: And you were present when I recorded the weights and heights, is that correct?

DR NAIDOO: That's correct, yes.

MR WILLS: And that the weights and heights were as follows:

Sibongile Gugu Kubheka ..."

...(intervention)

MR VISSER: Well Chairperson, what's the point of giving him the evidence? Why is he recalled to ... I thought he was coming to testify as to what he knows.

CHAIRPERSON: Mr Wills.

MR WILLS: Well possibly - Dr Naidoo was present when I was the scribe at that stage, possibly I can give him my notes and he can confirm that that note was taken at the time.

MR VISSER: Chairperson that's pointless, with great respect, I mean we may as well read it out.

CHAIRPERSON: What is your stance ... No, I hear what you're saying Mr Visser, but are you going to dispute the correctness of those heights and measurements or ...?

MR VISSER: Chairperson, we have a problem with this. We've asked you, the Committee, whether we can take height measurements ourselves. The witnesses have agreed to that. Mr Wills doesn't want to allow us to do that. We've got two different heights of Mrs Masetla on record now. There's clearly a disparity of 10 centimetres. But if that's the evidence which Mr Wills wishes to present, Chairperson, I'm not going to stop him.

CHAIRPERSON: Yes alright Mr Wills, continue.

MS THABETHE: Mr Chair, shouldn't we do it now?

MR WILLS: Mr Chairperson, I just want to record that I'm offended by Mr Visser's suggestion that as an officer of the court I would be given notes by the District Surgeon and I record that incorrectly. It's an affront to my stature as an officer of the court in this matter, and I'm in no way intending to try and mislead the Commission.

CHAIRPERSON: Yes no, I'm satisfied of that, Mr Wills.

MR WILLS: Thank you, Mr Chairperson.

MR VISSER: I wasn't imputing that, Chairperson. The point is just that the witness is being called to give evidence as to the correctness of the contents of what Mr Wills heard and noted down and that's what it's about. He may have heard it incorrectly, he may have written it down incorrectly. I don't know, Chairperson, I wasn't there.

CHAIRPERSON: Well perhaps we can just find out on that point.

Dr Naidoo, when these measurements were taken by the District Surgeon, you were present and Mr Wills was present?

DR NAIDOO: That's quite - I observed it and read out the heights and weights to Mr Wills, who recorded it.

CHAIRPERSON: And did you at any stage see what Mr Wills recorded?

DR NAIDOO: Well out of the corner ...(intervention)

CHAIRPERSON: And I'm not imputing anything, Mr Wills, by asking that question, I assure you.

DR NAIDOO: ... out of the corner adjacent to me, Mr Wills was recording. I didn't look specifically to make sure that he'd recorded the correct figures, but you know I know he was recording ...(intervention)

CHAIRPERSON: From information spoken by yourself?

DR NAIDOO: Yes, verbally.

CHAIRPERSON: Yes, I think you can continue, Mr Wills.

MR WILLS: Thank you.

Possibly - we don't have a scale here but I believe that Mr Visser has a tape measure, possibly we could measure one of the, or the persons here in order to establish the heights.

CHAIRPERSON: I think if you can proceed with your evidence.

MR WILLS: Yes.

MR LAX: Sorry, I was going to say, if you want to do that I don't have any objection to it personally, but before we break to do that little exercise, because we'll obviously have to do it here against the wall or whatever, I just had one or two other questions that have arisen since we heard other evidence today, that I thought that I might want to ask the Doctor, but I'll do that when you've finished.

MR WILLS: Yes. That isn't particularly the reason that I recall Dr Naidoo, it only became contested later. I thought the height became contested after Dr Naidoo's evidence and hence I led this, but there is another issue which I will go onto.

Dr Naidoo, I turn now to the issue that I recalled you for, and that is in relation to the height of Lyn Motoko Masetla. She gave the height - she was measured at the District Surgeon at 1.48 metres. She gave evidence today that Ntombi Kubheka, her deceased sister was one or two centimetres taller than her. Now I want to refer you to your formula, Lundi's formula, and ask you outright whether or not if somebody was either 1.49 metres or 1.5 metres, would this be an exclusionary factor in regard to your findings as to the identity of the deceased?

DR NAIDOO: Yes, my answer would be, not really. No, there wouldn't be an exclusion. For that matter it would be not impossible, but inappropriate to exclude any specific height. What happens is that as you go out of the range that I calculated, then the probability shrinks. Whilst the possibility may be there at all stages, but the probability shrinks and shrinks till it becomes negligible.

CHAIRPERSON: So it's not progressive?

DR NAIDOO: That's right, yes. I in fact - as the Commission would read that I actually made a note that:

"Please note, the above formula provides not the precise estimation and the actual height calculated may be considered to be inaccurate. However, the figures do point to a considerably short individual."

You know I think with due respect, you know very much like facial reconstruction and these parameters, what we're doing is giving some guidance and leaning towards a particular area of a person. It would be certainly incorrect to state that we could calculate a very precise age, or even a reasonably precise age and a weight, a height.

I would think that - you mentioned 1,49 or 1,5, that would be 8 centimetres. Yes. That would naturally be a closer, amount to a closer more probable you know, give you more probability than 1.6. So I can't say very much more than that, apart from saying that it wouldn't amount to an exclusion.

MR WILLS: And obviously it would be less probable than 1.42?

DR NAIDOO: Yes, that's right.

MR WILLS: Just on the genetic makeup of siblings as opposed to children, is it likely that, is it more likely that Ntombi Kubheka would reflect the makeup of her siblings in a more dominant way than that of her children? Are you able to comment on that?

DR NAIDOO: Yes. Now if you look at it, that would be correct simply because there's a constant and repetitive phenotype that we call the phenotype, the outward expression of a genetic makeup in the family. What would - biologically or mathematically speaking, both would represent, a child and a sibling could represent, possibly, similar deviations or shall we say, a similar amount of phenotypic outward expression of genetic makeup, simply because the child for example, would be a product of the mother and an external(?) father, whilst a sibling could, there's a possibility, could receive the gene that was not present in Ntombi Kubheka, but present in a sister. However, simply because there seems to be some constancy in that most of the siblings, or for that matter all of them are shorter than normal. So what it shows as a probability is that both the mother and father in the Kubheka family, of all the siblings, had shortness as their genetic genotype. DNA makeup.

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

NO FURTHER QUESTIONS BY MR WILLS

CHAIRPERSON: Is it subject to this question of the heights?

MR WILLS: Yes.

CHAIRPERSON: What's going to happen there?

MR WILLS: I think what we should do, Mr Chairperson is possible Dr Naidoo can use Mr Visser's tape and Mr Visser can be present when the height is taken and so there's no dispute about it. And I suggest that the heights of the three, or I think all five people ...(intervention)

CHAIRPERSON: Well we'll leave that to you, we don't really - we've seen Mr Kubheka every day, we've seen the Sisi. We can measure perhaps Mrs Masetla, because she's testified as to her height. I don't want to put any restrictions, but we know that ...

MR WILLS: Yes, and then possibly at the same time we can satisfy the query about Mrs Dludla.

CHAIRPERSON: Yes. Do you want to do that now before I ask people if they want to cross-examine Dr Naidoo on this further evidence, then we can have that as part of his evidence, or will it be measured and then handed in by consent? I don't know what you want to do.

MR WILLS: As you please, Mr Chairperson, perhaps that will be convenient.

CHAIRPERSON: Perhaps do it now and you can let us know as soon as you are ready and then we can reconvene. We apologise to the family Kubheka, for the inconvenience of having to be measured so often. We'll take an adjournment now, thank you.

COMMITTEE ADJOURNS

ON RESUMPTION

DR NAIDOO: (s.u.o.)

CHAIRPERSON: Mr Wills?

FURTHER CROSS-EXAMINATION BY MR WILLS: Thank you, Mr Chairperson.

Dr Naidoo, during the adjournment you again - well you measured Ms Masetla and what was the conclusions of your measurement, in height?

DR NAIDOO: Mrs Lyn Masetla, the height that I measured, I measured it twice, the conclusive height that we got was 1,5 metres, 1,50 metres. Almost exactly.

MR WILLS: And did you take any measurements of Mrs Dludla?

DR NAIDOO: Yes, I did.

MR WILLS: And what were those?

DR NAIDOO: It was also 1,5 metres.

MR WILLS: Thank you, Mr Chairperson.

NO FURTHER QUESTIONS BY MR WILLS

CHAIRPERSON: Thank you, Mr Wills. Any questions, Mr Visser?

FURTHER CROSS-EXAMINATION BY MR VISSER: Thank you, Chairperson.

Is it also true that I asked you to measure the width as best you could, an approximate width but as accurately as possible of Mrs Dludla's hips?

DR NAIDOO: Yes.

MR VISSER: And you ascertained that at?

DR NAIDOO: 42.

MR VISSER: 42 centimetres?

DR NAIDOO: Centimetres, yes.

MR VISSER: I just heard you say that you measured Mrs Masetla twice and you say the height was 1,50, but when I was there there was a difference.

DR NAIDOO: Yes, what we did was use a ruler this time and try and get a real level, a level ... You realise ...(intervention)

MR VISSER: A ruler over the head?

DR NAIDOO: Yes, over the head. A very slight inclination of a ruler or a book can give you at the end of the ...(indistinct) as significant ...

MR VISSER: But just for the record, the first measurement was 1,55 - 1,505?

DR NAIDOO: Yes, 1,505.

MR VISSER: In other words, 150?

DR NAIDOO: Yes.

MR VISSER: Alright. Now Doctor, when you gave evidence yesterday I asked you some questions about the Lundi's formula. You will recall that.

DR NAIDOO: Yes.

MR VISSER: And you told this Committee, and please stop me if I'm wrong, that there is a 5% error factor that, as I understood your evidence, that one must either add or subtract as far as the Lundi's formula is concerned in establishing height of a skeleton.

DR NAIDOO: Yes. I'm no mathematician nor statistician, I'm just making an assumption to be very honest, out of ignorance, that this is - the range that is given is a confidence interval.

MR VISSER: Yes.

DR NAIDOO: Such as a 95% confidence interval. I don't know whether this is a 90% confidence interval for that matter.

MR VISSER: Well, I'm just sticking to what you said yesterday, Dr Naidoo, ...(intervention)

DR NAIDOO: You understand ...

MR VISSER: ... you said there's a 5% error margin. I specifically asked you that.

DR NAIDOO: If that were a 95% confidence interval.

MR VISSER: And wasn't it?

DR NAIDOO: I have no idea.

MR VISSER: What does that mean? What does that evidence mean?

DR NAIDOO: What does a confidence interval mean?

MR VISSER: No. What do you mean by saying that you don't know whether there's a confidence interval ...(indistinct - coughing) these measurements?

DR NAIDOO: I have no - I'm not too sure of what the statistics would actually call that range. Whether it's a range of values and with it comes a confidence interval, such as to say that 95% of cases in the general population with that height of femur, measurement of femur, will fall within that range, I have not really looked into that.

MR VISSER: What did you intend this Committee to understand when you gave the evidence of the 95% confidence range? What did you want us to understand you to mean?

DR NAIDOO: That the - broadly speaking, most people with that height, most South African black females with that measurement of femur, should be within that range of height. That was all.

MR VISSER: Of 1,35 to 1,42?

DR NAIDOO: Yes.

MR VISSER: And didn't you intend to express the opinion that that would be 95% accurate?

DR NAIDOO: Yes, if that was the confidence interval that we're looking at, if that expression of that range is a 95% confidence interval, then that's what it would be intended to mean.

MR VISSER: Frankly I just don't understand your answer, but let's go on. Would you also perhaps recall that ...(intervention)

MS THABETHE: Sorry Mr Chair, if my learned friend doesn't understand the answer, would he like maybe to give an opportunity for the Doctor to explain such that he understands?

CHAIRPERSON: It's up to him if he wants to ask.

MS THABETHE: It's up to him, not - okay.

MR VISSER: Doctor Naidoo, when I cross-examined you yesterday I asked you whether the bottom range of 1,35 and the top range of 1,42 were the two extremes, do you remember that?

DR NAIDOO: I'm not too sure of the actual wording, but I ...(intervention)

MR VISSER: Those were the words.

DR NAIDOO: ... you discussing that, yes.

MR VISSER: Those were the words from my notes. And I specifically asked you whether it is your evidence that if the actual height of the person sought to be identified from the skeleton, fell outside those limits, whether you would consider that to be a rule-out. Do you remember that?

DR NAIDOO: Yes.

MR VISSER: Yes, and you said yes.

DR NAIDOO: I can't recall the actual question.

MR VISSER: Oh well Doctor Naidoo, what you said here today is directly in conflict with your evidence of yesterday, and the record will show it.

DR NAIDOO: Do we have a record of it? No, not at this stage.

MR VISSER: Pardon?

CHAIRPERSON: I'll look at my notes now, not that my notes are verbatim. Sorry Mr Visser, you say that he testified that - you're putting it to him that he testified that if it fell without the parameters, it's a rule-out.

MR VISSER: It's a rule-out.

CHAIRPERSON: But before I look at my notes, my understanding was that he did say that there was this 95% confidence level, so ...

MR VISSER: Yes, I'm just coming to that Chairperson.

CHAIRPERSON: I didn't understand that it would be a rule-out because what happens to the other 5%?

MR VISSER: I'm just going to put that to him now.

If one assumes, if one assumes a 5% error margin and if one assumes that your evidence did not intend to mean that it would fall within that limit but outside the limits, I suggest to you that we still don't come by the length that we now know Mrs Kubheka was, namely approximately 151/152 centimetres, according to Mrs Masetla.

DR NAIDOO: Well what I recall yesterday was - I think I recall we spoke about a 1,6 metres in height and I indicated 20 centimetres is the difference between the upper limit on this side and that carries with it a lower probability.

MR VISSER: Well we spoke about rule-outs, Doctor, let's not speak about probabilities here. What would you regard ...(intervention)

DR NAIDOO: But you see you can't rule out anything.

MR VISSER: I see.

DR NAIDOO: I think we, it's a play on words, there's nothing that you can rule out.

MR VISSER: We're not playing with words, Doctor Naidoo ...(intervention)

CHAIRPERSON: If I could just ask a question just for my own clarity, and correct me if I'm wrong. I'll tell you what I understood, was that you take the femur, you do the measurements of the femur and the other long bones and you apply Lundi's formula and you come up with an answer and in your case you came up with this parameter of 1,35 to 1,42 and you said that there is a 95% confidence level. My understanding was that that 95%, or alternatively the remaining 5%, didn't relate to figures. In other words, it wasn't that 1,35 to 1,42 was 95%, it might be 5% either way or either way. My understanding is that 95% of the population of that particular group would fall in that range.

DR NAIDOO: That's right.

CHAIRPERSON: You might however get somebody with a very short femur and a long torso who might be 12 centimetres or 20 centimetres, a sort of freakish type growth, who would fall in the 5%.

DR NAIDOO: That's correct.

CHAIRPERSON: And that person falling out of that 95%, didn't have to be within 5% of 1,42 or 1,35.

DR NAIDOO: That's so, that's correct.

CHAIRPERSON: That was my understanding. It didn't relate to figures, that 95% and 5%, to the measurements.

DR NAIDOO: That's right. It's an expression of the population ...(intervention)

CHAIRPERSON: ...(indistinct) to probabilities of ...

DR NAIDOO: ... that will into that, yes.

CHAIRPERSON: Yes, that's what my understanding was, but anyway ...

MR LAX: I thought I'd specifically canvassed that with you, because that's how I understand these sorts of statistical tests where a sample of people, a hundred individuals of a particular group are taken, they represent and mean of the population and what I understood when you said 95% confidence, from my little knowledge of statistics, that means that that's a 95% sample of the population for which those figures are then valid with, given the fluctuation that's how statistics work.

DR NAIDOO: Yes.

MR LAX: And that there's in fact, this confidence represents the 5% of the population who fall outside of that sample.

DR NAIDOO: Yes.

MR LAX: In other words, the sample didn't - you never sample for 100% of the population, you'd have to do every single individual.

DR NAIDOO: That's right.

MR LAX: So statistically that's how it's done.

DR NAIDOO: Yes.

CHAIRPERSON: I'm sorry, Mr Visser, I can't seem to find anything in my notes. I'm not saying that it wasn't, I just haven't recorded anything to the effect there.

MR VISSER: Chairperson, may I explain myself?

CHAIRPERSON: Yes.

MR VISSER: I'm giving the Doctor the benefit of the 5%. I hear everything that Mr Lax says and what you said and that's certainly as I understood it. I have now asked him whether - I've now assumed that it's also applicable to the range, to give a further leeway, Chairperson. It's only on that basis.

CHAIRPERSON: Yes.

MR LAX: You see Mr Visser, the problem is this, is that 5% is not adding on 5% of the fluctuation in height, you can't take those - let's take 1,42 as the extreme, add on 5% and then get the external mean so to speak, or the maximum.

MR VISSER: Yes, I'm perfectly happy with that, Doctor. So on that basis I will put to you that if we know that Ms Kubheka might have been 152 centimetres, your maximum of 1,42 is approximately 10 centimetres, well precisely 10 centimetres out.

DR NAIDOO: You're right.

MR VISSER: And on the lower level, your minimum of 1,35 would be approximately 17 centimetres out.

DR NAIDOO: Right. But you'd ignore the lower level ...(intervention)

MR VISSER: Alright, well let's ignore the lower level, let's talk about the 10 centimetres. ...(intervention)

MR LAX: Sorry, can I just ask this? Why do we ignore the lower level? Just so we understand it.

DR NAIDOO: Well because when you're looking at the deviation from normal, you look at simply the difference from the - if you - it's simply this, if you're standing outside a room you say you're standing, if you're standing one metre away from the room, you're standing one metres away from the nearest wall, not the other wall on the other side. You understand what I'm saying?

CHAIRPERSON: Yes.

DR NAIDOO: Very briefly. You know, I'll just reiterate that this doesn't - it's very, very difficult to say that it amounts to an exclusion, it's simply a matter of confidence in what we accept.

MR VISSER: Yes, alright ...(intervention)

DR NAIDOO: I would say also that 20 centimetres difference was a lot.

MR VISSER: Yes.

DR NAIDOO: 10 centimetres difference is half of 20, it's not that much.

MR VISSER: Well it's half of it.

DR NAIDOO: It's - you know, it's all one can say.

MR VISSER: Well Doctor, ...(intervention)

DR NAIDOO: If I may deviate slightly, the figure you're giving me, you're giving me a figure of 1,52 for me to answer with, even the 1,52 is an assumed figure, is it not?

MR VISSER: You don't have to worry about the evidence.

DR NAIDOO: Okay, right so ...(intervention)

CHAIRPERSON: Just one more question, a general question. Would the age of the bones have any significance at all? In other words, if you've got a skeleton that was three months old and one that was thirty years old, or whatever, would the age of the bones make a difference in the application of Lundi's formula in the measurements, etcetera?

DR NAIDOO: Not much. There's said to be shrinkage due to heating of bones. If they were baked they may shrink somewhat, but if it's not heat, changes of heat, it shouldn't really make a difference.

CHAIRPERSON: It wouldn't have a significant affect at all?

DR NAIDOO: That's right.

CHAIRPERSON: Thank you.

MR VISSER: Thank you, Chairperson.

I'm not going to ask you too many questions because I'd like to speak to somebody about your evidence, Doctor Naidoo, but can I just put it to you that even on the 1,52, the probabilities of Mrs Kubheka being the person to whom that skeleton that you examined belonged, must be very low. On your formula, because otherwise, what does your formula mean? What does it help?

DR NAIDOO: It's a guide.

MR VISSER: Yes, well ...

DR NAIDOO: A guide. What's it's pointing is pointing to a considerably short individual. And for that reason I simply - the conclusion from that stature calculation was that it points to a considerably short individual. That is all really that one can actually say.

MR VISSER: Yes.

DR NAIDOO: If you try and say ...(indistinct) it's based upon that interval that I get and you're looking at now probabilities of exclusion based upon the distance away from that range, I think you are taking this to ... I think this inquiry is taking this to an extreme that would be scientifically inappropriate. What I'm saying is - I'm coming back to this, I'm watering this down - not watering this down, I'm reading this back to what does stature estimation actually mean?

MR VISSER: Yes, I was just going to ask you that.

DR NAIDOO: It's a guide, it's a guide.

MR LAX: Sorry, what does what mean?

DR NAIDOO: Stature.

MR VISSER: And within what parameters is it a guide and when is it no guide no longer? I mean how far do you have to go for this Lundi's formula to have any meaning for a Court of Law or for a Commission of Inquiry?

DR NAIDOO: I'm not too sure if I understand the question.

MR VISSER: Well you say it's just a guide.

DR NAIDOO: Yes, yes, and that's all, that's all it is.

MR VISSER: Within what parameters is it a guide?

DR NAIDOO: Within - well what I'm saying is, the interval that I give gives you an idea as to the general height of that person. That's all the guide tells you.

MR VISSER: Chairperson, I see my attorney has another question for me. Chairperson, I don't think I can take it further at the moment, thank you.

NO FURTHER QUESTIONS BY MR VISSER

CHAIRPERSON: Thank you, Mr Visser. Mr Hugo, do you have any questions you'd like to ask?

MR HUGO: No questions, thank you.

NO QUESTIONS BY MR HUGO

CHAIRPERSON: Mr van der Merwe?

MR VAN DER MERWE: No thank you, Mr Chairman.

NO QUESTIONS BY MR VAN DER MERWE

CHAIRPERSON: Mr Samuel? I'll give you an opportunity for re-examination. Mr Samuel?

MR SAMUEL: No questions.

NO QUESTIONS BY MR SAMUEL

CHAIRPERSON: Ms Thabethe?

FURTHER EXAMINATION BY MS THABETHE: Yes thank you, Mr Chair.

If on your formula you say a person between the range of 1,35 to 1,42 is a considerably short person, what would you say to a person with a height of 1,5? Would that change your conclusion as to the shortness and the tallness of the person?

DR NAIDOO: Sorry, it's not an easy question to ask. We've got ask then what is the average height of a black female? And the average would be - I'm not too sure, maybe an anatomist will help us, and anything that's above the average or significantly above would be tall and anything significantly below that will be short. All I can say is that the height that I calculated almost certainly falls into the shorter range than normal. If for example, 1,55 is considered to be an average, then 1,50 will be slightly shorter than average.

MR LAX: Sorry, to interrupt you. Did you actually check the mean for those ...(intervention)

DR NAIDOO: ...(indistinct) South African black female?

MR LAX: The mean height for a South African ...

DR NAIDOO: No, no, if I'd known that I perhaps would be able to answer this question.

MR LAX: Well are you able to look it up from your books or whatever else you've got and let us have that?

DR NAIDOO: Yes, I'm almost certain that I could access at least to the Anatomy Department, at least some of the growth statistics.

MR LAX: Ja. I mean, would that be acceptable to the parties if we just got that sent to us? Just as an objective fact.

MR VISSER: I don't mind.

MR LAX: Okay. Would you do that please?

DR NAIDOO: I will.

CHAIRPERSON: It will be if possible, the average height of a person who fell within Ntombi Kubheka's group. That is an adult...

DR NAIDOO: Black female, plus or minus 40 years old?

CHAIRPERSON: Yes, in that group. The same group that you used Lundi's formula.

DR NAIDOO: Yes.

CHAIRPERSON: Yes, the equivalent group.

MR LAX: And if there - just in case there may be, for want of a better word, ethnic differences say between Zulus or Swazis or Xhosas or whatever, if there is that would you indicate that?

DR NAIDOO: Yes. This is Zulu of course, Ms Kubheka.

MR LAX: Zulu or Swazi I think the family is.

DR NAIDOO: Okay. I'm not too sure whether we can come up with the details, but I will look.

MR LAX: ...(indistinct - no microphone)

DR NAIDOO: Yes.

MR LAX: ... to the statistics.

DR NAIDOO: Yes.

MR LAX: Then we obviously need to ...(indistinct).

DR NAIDOO: Yes, yes.

CHAIRPERSON: Yes obviously if you can't find it, you can't find it. We're not ordering you to supply the figures, it's only if you can do so. If you could find them, we'd appreciate that. Thank you. Mr Thabethe?

MS THABETHE: Thank you.

Why I was asking you Doctor Naidoo, it's because in your conclusion after applying the Lundi's formula you say the figures do point to a considerably short individual, so I assumed the 1,35 to 1,42 metres in height.

DR NAIDOO: Yes.

MS THABETHE: Now what I'm asking is, if a person was 1,5, would you still say the same thing or would it be different in terms of shortness?

DR NAIDOO: I wouldn't - I don't think I would actually have made a statement 1,5 - I understand maybe perhaps your question now, 1,5, I would have made a finding of a considerably short individual. If you look at my range, the medium point there is 1,38 and that is short by average standards of even laymen. So - but 1,5 I certainly wouldn't, I don't think, sorry, I would have called that extremely short. I would have left it without a comment.

CHAIRPERSON: Ms Thabethe.

MS THABETHE: Thank you, Mr Chair.

NO FURTHER QUESTIONS BY MS THABETHE

CHAIRPERSON: Mr Wills, do you have any re-examination?

MR WILLS: No re-examination, thank you Mr Chairperson.

NO RE-EXAMINATION BY MR WILLS

CHAIRPERSON: Mr Lax?

MR LAX: Thanks, Chairperson.

Doctor, based on what we now know, there's a probable height of somewhere in the region of 150, 152, thereabouts.

DR NAIDOO: Yes.

MR LAX: And you have your mean of 1,38 within that parameters and then we have - and this is assuming that Dr Chetty did actually measure it at 1,6, now bearing in mind the scope of that difference, is it still a rule-out to you? Is it possible that there would have been such a huge fluctuation? Could we be dealing with the same body, or is it absolutely improbable?

DR NAIDOO: Can I give two answers not conflicting? First of all, scientifically speaking you can't rule it out. That's the scientific ...(intervention)

MR LAX: Scientifically speaking?

DR NAIDOO: Yes. Then non-scientifically speaking, we have so many speculations, no suppositions here ...(intervention)

MR LAX: Assumptions.

DR NAIDOO: Assumptions, sorry. ... that the figure you give me may be subject to the same kind of variables that we're looking at. For example, if I say that - we make mistakes as well, now this is non-scientifically speaking, when we look at people standing next to ...(indistinct), I think I'm a little taller than you, I think I'm a little shorter than you, these are variables and it's all - this is observer error and there are many things that come into it. Allowing for that as well, I think generally speaking you shouldn't be able to rule out.

MR LAX: You see my - I'm putting this to you as an expert now, as a scientist, as someone experienced in this field of identification of deceased remains and in that context, bearing in mind all these fluctuations and variations and possibilities, are you still satisfied in your own mind that it is highly probable that the remains you saw and that you worked on, are those of Ntombi Kubheka?

DR NAIDOO: Not based on stature alone ...(intervention)

MR LAX: No, I'm saying based on the whole conspectus of factors that you've applied, but bearing in mind what we've now heard about the height.

DR NAIDOO: Yes, I understand your question. What I'd like to say is that the coincident correspondence of all those features that I'd found and then reinforced by the video superimposition photograph on the skull, tells me that we have a high likelihood of having got a positive match and that this is Ntombi Kubheka. I have to still find a tangible deviation on issue that tells me I might, we might have made a mistake in this identification.

MR LAX: Sorry, say that again, I didn't understand you. You said you would still have to say that there is a tangible deviation...

DR NAIDOO: Yes, an identifiable deviation as well that tells you there's something wrong and that we probably need to investigate further to look for a match.

MR LAX: Yes.

DR NAIDOO: So there is nothing that's a deviant, or that's out of - there's no feature that is out of that constellation of supporting features.

MR LAX: So there's no feature that's a rule-out?

DR NAIDOO: Yes, yes.

MR LAX: But within the conspectives of factors, what you call a constellation of indicators, there is something missing that would make you want to look further?

DR NAIDOO: No, nothing missing. There is no finding ...(intervention)

MR LAX: Are you saying - put it another way, we spoke yesterday about positive, you can't make a positive finding on what you have here.

DR NAIDOO: Yes, yes.

MR LAX: But what is within the realms of what lawyers call probability as opposed to possibility, which is lesser than probability, what are we talking about?

DR NAIDOO: What I'm simply saying is that you've got a lot of features, age, sex, race, stature, etcetera, ...(indistinct) dental age and cranifacial identification, that they support the speculative identification for the alleged person. There is no feature that does not support it, there's no non-corresponding feature. For want of a better word ...(intervention)

MR LAX: What do you mean "speculative identification"?

DR NAIDOO: Okay. The putative identification of this woman is that of Ntombi Kubheka.

MR LAX: So all you mean is that it's a work in progress towards identification?

DR NAIDOO: That's right.

MR LAX: Have I understood that right? Is that the sense that you mean speculative?

DR NAIDOO: Well the alleged person, the alleged person Ntombi Kubheka, that's what's given to us, and now my role was to determine if there's a match and all the features that I found do match that of the alleged deceased, Ntombi Kubheka. And besides the medical aspects, age, race, sex, stature, there are the issue of clothing, which I don't want to go into, but then of course cranifacial identification. All these aspects do match those of the deceased, alleged deceased.

MR LAX: Right.

DR NAIDOO: Nothing, there's nothing that I've found or nothing that was found by others whom I sent things to test for, that amounted to a non-match or a clear non-correspondence that would amount to a different person completely.

MR LAX: Right. I'm asking you about one other factor which you can tell me whether it's scientifically valid or not, but as a lay person looking at the other family members, would that amount, in your experience as a scientist, to an additional factor that might further corroborate the identity here?

DR NAIDOO: Yes, yes, simply on the matter of height. My findings, an independent finding was that this is a short individual. And for that matter, it does - simply on the height alone there is a genetic tendency in this family to be short, at least this particular generation of siblings to be short and that does a match, that's match.

MR LAX: Thank you, Chair.

CHAIRPERSON: Advocate Bosman, do you have any questions?

ADV BOSMAN: I don't have any.

CHAIRPERSON: Are there any questions arising out of questions that have been put by the Panel?

FURTHER CROSS-EXAMINATION BY MR VISSER: Unfortunately, Chairperson.

Can you just tell us, Lundi's Formula, does that apply without discrimination to all race groups in the world?

DR NAIDOO: No, Lundi's got two formulas, one's for South African black males and the other one is for South African black females. Similarly I think you mentioned Trott ...(indistinct) formula.

MR VISSER: Yes.

DR NAIDOO: These formulas are based on similar formulas applied to the American males, American females, American white males, American white females and American black males and American black females. So I understand that Lundi devised in similar fashion, the mathematical formula for the South African blacks.

MR VISSER: Yes. Lastly, I read to Prof Vanezis a paragraph from "An Introduction to Forensic Sciences", the paper and Iskan and Loth and in regard to the last question put by Mr Lax, I just want to read to you this at page 346 of Exhibit O. The last paragraph says:

"All skeletal assessments begin with what Kroggman referred to as the "Big Four", age, sex, race and stature."

Have you got it?

DR NAIDOO: Sorry, which page was that?

CHAIRPERSON: Page 346 of Exhibit O. Whereabout on the page? Can you indicate the portion, top or bottom? Towards the bottom.

MR VISSER: It's on the page opposite where you will see a drawing of a skeleton. Have you got it?

DR NAIDOO: Yes, yes I have.

MR VISSER: I continue.

"Each characteristic narrows the pool of possible matches considerably, sex alone cuts it by half. If a skeleton is complete and undamaged, these attributes can be assessed with great accuracy. Using the latest techniques, sex can be determined with certainty. Age estimated, to within about five years and stature approximated with a standard deviation of about 1,5 inches, 3,5 centimetres."

Would you agree with that?

DR NAIDOO: Are you asking me to agree with those figures?

MR VISSER: I'm asking whether you can agree with that, or do agree with that.

DR NAIDOO: I haven't looked at - what I would have to do is look at his references.

MR VISSER: Yes.

DR NAIDOO: You see, because if he found - if we find that this book deals with references or refers to work that was done very much more recent, more recent work that gives you more data, then that would be fine, then that would be an advance. This is a scientific advance.

MR VISSER: Can I then ask you the question I asked you before, and this is going to be my last question. Can you point at any factor, characteristic, ideosyncracy, call it what you like, in a body which, or the skeleton which you examined, that is such an individualistic factor that you could say this was the body of Ntombi Kubheka?

DR NAIDOO: Are you referring to my experience?

CHAIRPERSON: This particular post-mortem that you did on number 1155.

DR NAIDOO: No, there is no particular and unique criterion that I have identified, that would tell us that it's definitely her. There was no positive.

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

NO FURTHER QUESTIONS BY MR VISSER

CHAIRPERSON: Any further questions arising out of questions that have been put by the Panel?

CROSS-EXAMINATION BY MR SAMUEL: Doctor, you have seen the post-mortem report by Dr Chetty, that's PM580.

DR NAIDOO: Yes.

MR SAMUEL: Alright. And you received some remains where you were asked to do a post-mortem.

DR NAIDOO: Yes.

 

MR SAMUEL: Alright. Was there any doubt in your mind that you did not receive the correct remains, that the remains that you had after you did the post-mortem, was that it did not belong to PM580?

DR NAIDOO: No, it gave me no reason to doubt that whatsoever.

MR SAMUEL: I see. For all intents and purposes then, in your mind, the post-mortem that was conducted by Dr Chetty, related to the remains that you conducted ...

DR NAIDOO: Yes, it was.

MR SAMUEL: Despite the height differences?

DR NAIDOO: At the time of my post-mortem examination I don't think I had sight, I don't believe I had sight of Dr Chetty's original report.

MR SAMUEL: But now that you've seen the report and you notice the height difference, is there any doubt in your mind?

DR NAIDOO: No, there still doesn't appear to be good reason to believe that it might have been a different body.

MR SAMUEL: Thank you. Thank you, Chairperson.

NO FURTHER QUESTIONS BY MR SAMUEL

MR LAX: Just one thing arising, Chair.

It's been put to you that Dr Chetty performed a post-mortem, do you think he performed a post-mortem, as you would have performed a post-mortem?

DR NAIDOO: Yes you know, with due respect to a colleague, and I must express this because I have been asked, I don't believe that was post-mortem examination. If that amounts to a post-mortem examination, then it's a post-mortem inspection, not a post-mortem examination. If it can be at all an inspection.

CHAIRPERSON: Thank you. No further questions? Doctor Naidoo, thank you, that concludes your testimony, subject to what we said yesterday. And I'd also like to thank you for coming without any prior notice, so promptly. Thank you.

DR NAIDOO: Thank you.

WITNESS EXCUSED

CHAIRPERSON: Is there anymore evidence to be led at this stage? Oh yes, sorry, we have here I see placed before us, a statement by Insp Andrew Attie Moolan, what is the status of this? Is this ... Does everybody have a copy of this?

MS THABETHE: Yes, I did not wish to call him as a witness, but I wanted to place this on record.

MR LAX: Before we read it, is everyone in agreement that we should read it, that's going to be properly before us?

MR VISSER: Chairperson, I'll go further than that, we have no objection to you accepting this as evidence.

CHAIRPERSON: Thank you. Could you just give an indication please, Ms Thabethe, as to when the statement was made? I see it's for your attention, so I presume it's a recent statement, not one that was pulled out of a 1997 file.

MS THABETHE: I actually phoned him today and I asked him to go to the file and give us a report. Ja, it's just a brief statement.

CHAIRPERSON: Thank you. Because it's undated, so it would be dated about yesterday or today?

MS THABETHE: Today.

CHAIRPERSON: Can I write that on there. Would that be Exhibit T? We'll call it Exhibit T, just so that it's got a place on the record. This is the statement of Insp Attie Moolan. Is there any other evidence today then? No further evidence.

Mr Wills, we listened to what you said yesterday concerning what Mr Visser said about wanting an opportunity to consult his own experts, and we believe that we shouldn't deny that. But Mr Visser, you realise ...

MR LAX: Ms Thabethe, this document refers to an exhumation by Dr Naidoo of Durban, not by Dr Aiyer.

MS THABETHE: I can follow it up, because telephonically I spoke about Dr Aiyer, so ...

MR LAX: This doesn't talk about Dr Aiyer, that's why.

MS THABETHE: I can follow it up.

CHAIRPERSON: Thank you. Mr Visser, you realise that we're now getting towards the end of the process and we'd have to have some sort of terms put down. You know if you could let us know by, what, 15th of August, two weeks, would that be sufficient?

MR VISSER: Chairperson, there's only one matter which is outstanding before we can talk to Dr Loth, and that is to obtain a copy of the video transmission. Once we ...(intervention)

CHAIRPERSON: You mean the video transmission ...

MR VISSER: Of Tuesday.

CHAIRPERSON: Yes. I don't know how long that will take ...

MR VISSER: We've asked for one. We haven't received a confirmation as to when we'll get it, but the moment we have that, within a day or two we would be able to ...

CHAIRPERSON: Yes, well I will keep on this aspect about getting a copy of that transmission. I was informed, I might say informally, by the Sound Engineer, that a portion was lost, 34 seconds I think, was lost because somebody stood on a cable or something, but apparently, I don't know exactly which portion, but it doesn't have the effect of nullifying anything or ...

MR VISSER: It really dealt with the - as I understand from him, the skull reconstruction evidence, which Prof Venezis said wasn't what he used for the purposes of ...(intervention)

CHAIRPERSON: Okay, about building up the plasticine and that clay ...

MR VISSER: Yes, that's as I understand it, but we'll obviously have to ...

CHAIRPERSON: But that is missing and I suppose if anything vital is missing, we could have a reconstruction from notes.

MR VISSER: Yes. Chairperson, there's just one last matter, we still have not obtained the last photograph, Chairperson.

CHAIRPERSON: Oh that full front photograph that was blown up, Ms Thabethe, from the passport. Mr Wills mentioned a pile of them.

MR WILLS: Yes, I saw them downstairs where the photocopier is, Mr Chairperson, so they must ...

CHAIRPERSON: They must be around somewhere.

MS THABETHE: I haven't seen it, Mr Chair.

CHAIRPERSON: Yes, if we can have a copy of that before we leave, please. And if we could have a copy. That was Figure 30, was it, I think Mr Wills?

MR WILLS; R30.

CHAIRPERSON: R30. Yes, so Mr Visser, then I'll do what I can to get that video transcript across to you and then if we could try to work to a deadline, depending on that, of the 15th of August, and then if you could let us know what you wish to do, whether you wish to recall anybody or lead any evidence in this regard or not, and then we'll have to make arrangements from there.

MR VISSER: We are hoping that we need not come back and ask for you to hear evidence, but what we'll probably have to do at the least, would be to draw a report to present to the other interested parties, for them to react to it before that decision can finally be made.

CHAIRPERSON: Yes, if there's no further evidence. And there would be the question of argument, and I think perhaps in the circumstances, and from what I've heard from legal representatives, that written Heads will be prepared and then if any of the legal representatives, and if it's at all possible, wishes to have a short hearing to stress certain points that they desire, then hopefully that would be arranged, but that hearing wouldn't last more than a day. It might be in a place like Pretoria or something like that.

MR VISSER: We would certainly not think that it is necessary to have another hearing, because frankly, to do justice to an argument in this case is not going to finish in a day.

CHAIRPERSON: Yes. No, but I mean after receiving written Heads.

MR VISSER: Yes, Chairperson.

CHAIRPERSON: Why I say it - if it's possible, I don't know if it's possible, but we can try for that if people want it, that they've done Heads and they might want to drive a couple of points home.

MR WILLS: Mr Chairperson, my instructions from the family are that for the purposes of concluding this hearing, it would preferable to have a day or argument, so we will be requesting that. We will supply Heads and then we will request to address them verbally.

CHAIRPERSON: And we can have that at a convenient time. We will try to arrange that. But I think the first step then, it's a little bit unusual, the first step would be to wait to see whether there's going to be further evidence or not. Mr Visser says there may well not be, but there might be some sort of written report for comments, which would obviously have to be taken into consideration for the Heads, and then we'd have to, because we're coming to the end of the process, have some sort of turn as when Heads should be in. It's difficult to say that now, because we don't know when the next stage is going to be completed. But I would urge the legal representatives to start preparing their Heads, I mean there's a lot that can be done without whatever scientific evidence may come. I'm sure that the bulk of the Heads could be done and can be added on after that further information.

Mr Lax, you were pointing out to this latest exhibit.

MR LAX: Yes, Chair, I was just going to say that when I read the SAP180, it's clear from that that the remains were handed to Dr Aiyer and not Dr Naidoo, so ...

CHAIRPERSON: So it's clearly just an error in the first, when reference is made to Dr Naidoo. Yes, well that then brings us to the conclusion of this hearing and I would like to thank everybody who made these hearings here possible, from the Interpreters who worked long and hard, to the Security personnel, despite the fact that we had a laptop computer stolen from our room, but it's not their fault. The caterers, the Sound Engineers particularly, for having to break down and set up for the video transmission, which was a new experience, and to everybody concerned, Secretaries, Logistic Officers, thank you very much. We'll now adjourn, thank you.

HEARING ADJOURNS