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&#9;TRUTH AND RECONCILIATION COMMISSION
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 &#9;TRUTH AND RECONCILIATION COMMISSION

&#9;AMNESTY COMMITTEE

DATE:&#9;05-07-1999

NAME:&#9;NKOSINATHI EMMANUEL MAVUSO

APPLICATION NO: AM7921/97

MATTER:&#9;KILLING OF MICHAEL MKETCHWA

DAY:&#9;&#9;1

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NO AFRIKAANS INTERPRETERS AVAILABLE

CHAIRPERSON: We want to start the proceedings. For the record, today is Monday the 5th of July 1999, this is a sitting of the Amnesty Committee, held at Pretoria. The panel is Chaired by myself, Denzil Potgieter, I am assisted by Advocates De Jager and Gcabashe. We will be hearing the amnesty application of Nkosinathi Emmanuel Mavuso, amnesty reference number AM7921/97. We have quite a number of legal representatives at the hearing, but let's start with you Mr Prinsloo, I think you can put yourself on record first.

MNR PRINSLOO: Mnr die Voorsitter, ek verskyn namens die applicant in die saak.

VOORSITTER: Dankie mnr Prinsloo. Whilst we are on that side, sal u maar uself ook dan op rekord plaas?

ME VAN DER WALT: Ek verskyn namens mnr M.Q. Mkhwanazi wat ingevolge artikel 29(1)(c) van die Wet gedagvaar is om te verskyn.

VOORSITTER: Dankie Me Van der Walt. Yes, Mr Bizos?

MR BIZOS: Mr Chairman and members of the Committee, I appear for the widow of the deceased, Mrs Jabulele Harriet Mcetywa and her son, Zolile and his daughter Cindy. With me are Miriam Wheeldon, Kabelo Lengani, both Attorneys, but they may change in their presence here. Mr Alma Judvat who is a fellow at the Legal Resources Centre, representing the interested persons.

CHAIRPERSON: Thank you Mr Bizos. Yes, I think that was the sum total of legal representatives previously known to us. Then we have had quite an increase in the number in the meantime. I think we will just simply take the physical position and we will just go down the side and then we will take.

MR VAN DER HEYDE: Mr Chairperson I am Chris van der Heyde, I work for the firm J.H. van der Merwe Inc. Mr Koos van der Merwe is also the director of our firm, I will ask him to put himself on record, he will attend the proceedings later on, we represent the Inkatha Freedom Party at this hearing.

CHAIRPERSON: Yes, Mr Van der Heyde, we noted that. Is it only the Inkatha Freedom Party that you represent? What is the position with Mr Amos Mtungwa?

MR VAN DER HEYDE: Excuse me Mr Chairperson, I forgot to mention him.

CHAIRPERSON: It is him as well?

MR VAN DER HEYDE: Yes.

CHAIRPERSON: Yes, we have noted that Mr Van der Heyde. We will go down the line.

MR VAN DER WALT: Mr Chairman, my name is Van der Walt, I appear on behalf of the brothers Velaphi and Samuel Khumalo who were both notified in terms of Section 29(1)(c) of the Act to appear here today.

CHAIRPERSON: Yes, thank you Mr Van der Walt, we have noted that. Who is next?

MR BOTHA: Mr Chairman, my name is Martin Botha, I appear on behalf of Rasta Mncwango, Malebele Buthelezi and Jabulani Kunene.

ADV DE JAGER: Just a little bit slower, we've got to take it down.

CHAIRPERSON: Just give us that first one again.

MR BOTHA: Rasta Mncwango.

CHAIRPERSON: Rasta?

MR BOTHA: Rasta Mncwango.

CHAIRPERSON: Yes, Mr Botha, thank you for that.

MR BOTHA: Then Malebele Buthelezi and Jabulani Kunene. All three persons having been subpoenaed in terms of Section 29 as being implicated.

CHAIRPERSON: Yes, thank you Mr Botha. 

MNR NOTHNAGEL: Mnr die Voorsitter, my van is Nothnagel, ek verskyn namens Alpheus Dumisani Msibi, ook gedagvaar in terme van Artikel 29(1)(c) van die Wet as 'n geïmpliseerde.

VOORSITTER: Goed mnr Nothnagel, dankie. Let's go further down the line.

MR PADI: Mr Chair, I am Thabo Padi from Padi (indistinct) Attorneys. I appear on behalf of Mdu Msibi who has been summoned in terms of Section 29 as being implicated.

CHAIRPERSON: Yes, thank you Mr Padi. Is that the sum total? Yes, Mtanga, excuse us.

MS MTANGA: Thank you Chairperson, I am Lulama Mtanga, the Evidence Leader for the Truth Commission.

CHAIRPERSON: Yes, thank you Ms Mtanga. Yes, thank you. Yes, Mr Prinsloo?

ME VAN DER WALT: Mnr die Voorsitter, voordat mnr Prinsloo begin wil ek net aan u 'n aansoek voorhou en dit is met betrekking tot my kliënt, mnr Mkhwanazi wat ingevolge Artikel 29(1)(c) van die wet gedagvaar is om voor u te verskyn. Ek wil in die eerste plek aan u voorhou dat die Artikel, Artikel 29 nie meer in werking is nie en dat hy nie regsgeldig gedagvaar is om voor u te verskyn nie. Soos u wel bewus is daarvan, is hoofstuk 6 van die Wet waaronder Artikel 29 val, is die opskrif "Ondersoek en Verhore van die Kommissie". Dan Artikel 28 handel oor die Kommissie mag Ondersoekeenheid instel en dan word die samestelling van die Ondersoekeenheid dan daar uiteengesit. Artikel 29, ingevolge waarvan my kliënt gedagvaar is, is die Bevoegdheid van die Kommissie met Betrekking tot Ondersoeke en Verhore, is die opskrif, en dan begin Artikel 29(1) "die Kommissie kan vir doeleindes van of in verband met die doen van 'n ondersoek of die hou van 'n verhoor na gelang van die geval" en dan subartikel (c) waaronder my kliënt dan gedagvaar is "by skriftelike kennisgewing enige persoon oproep om voor die Kommissie te verskyn en te getuig of om vrae te beantwoord wat betrekking het op die onderwerp van 'n verhoor." Ek wil met respek aan u betoog dat die Kommissie soos wat die beskrywing is in woordomskrywing, subartikel (1) is die Kommissie, dit is nou (ix) die Kommissie, die Kommissie vir Waarheid en Versoening by Artikel 2 ingestel. Met respek, daardie Kommissie se werk is reeds afgehandel en u, Agbare Voorsitter is die Amnestie Komitee, 'n ander been van die Kommissie.

VOORSITTER: Ek is jammer om u in die rede te val. Is die definisie van Kommissie in hoofstuk 6, sluit dit nie ook die Komitee in nie?

ME VAN DER WALT: Ek wil aan u voorhou, nee, want dan sou dit so beliggaam gewees het en die hele werking van Artikel 29 wat 'n baie drastiese wetgewing is, want soos u wel bewus is daarvan, is Artikel 31(1) van daardie selfde Hoofstuk, waar 'n persoon opgeroep word deur die Kommissie, is hy verplig om vrae te antwoord al is dit inkriminerend.

VOORSITTER: Ja, ek is jammer, ek wil net weer terugkom na die punt toe, Artikel 1(2) van die definisies, is dit nie tot die effek dat vir die doeleindes van Hoofstuk 6, sluit die Kommissie in Komitees en sub-Komitees, met ander woorde van Hoofstuk 6, het die Amnestie Komitee dieselfde bevoegdhede soos die Waarheids- en Versoeningskommissie ten opsigte van subpoena ens, ens?

ME VAN DER WALT: Ek wil aan u voorhou dat dit nie die geval is nie, dat Hoofstuk 6, behalwe waar Artikels soos Artikels 19 wat die Amnestie Komitee die bevoegdheid gee om persone te dagvaar wat geïmpliseer word, en in sekere gevalle word daar verwys in Artikel 19 na byvoorbeeld Artikel 30 van hierdie Hoofstuk, dan word dit in ag geneem by die Komitee, maar in hierdie geval waar daar net staan Kommissie in hierdie Hoofstuk, is dit volgens my argument, die Kommissie soos omskryf wat die Kommissie van Waarheid en Versoening is. Ek wil u dan verwys ook na die uitspraak van die Appèlhof met betrekking tot mnr P.W. Botha, die Kaapse Hooggeregshof, ekskuus tog, mnr P.W. Botha wat nie getuig het voor die Komitee nie.

VOORSITTER: Die Kommissie nie.

ME VAN DER WALT: Die Kommissie nie, en daar was hy - ekskuus tog, daar was hy ook gesubpoena ingevolge Artikel 29, maar die verhoordatum waarvolgens hy moes verskyn, het plaasgevind na die beëindiging van die Kommissie.

VOORSITTER: Dit is korrek, die Kommissie het nie, volgens daardie bevinding het die Kommissie nie die bevoegdheid gehad om hom te subpoena nie, maar dit is soos ek sê vir u, dit volgens ek die situasie verstaan, het te doen met die Kommissie. Soos ek Artikel 1(2) lees, die definisie vir die doeleindes van Hoofstuk 6, waar daar verwys word na 'n Kommissie, word dit gelees as ook 'n verwysing na 'n Komitee of 'n sub-Komitee en dit is die enigste manier hoe die Amnestie Komitee byvoorbeeld sy werksaamhede kan verrig, is dat hy moet daardie algemene magte ook hê om te kan funksioneer en dit is waarom daardie definisie spesifiek daarin geskryf is.

ME VAN DER WALT: Ek wil, daar is sekere gevalle waar daar spesifiek verwys is van hoe 'n Komitee en die Kommissie, dit word ook onder Artikel 29, Hoofstuk 6 behandel, die werksaamhede, dan verwys hulle na die Amnestie Komitee, maar ek wil aan u voorhou dat omdat dit so 'n drastiese wetgewing is hierdie Artikel 29, dat dit beperk was tot die Ondersoekeenheid van die Kommissie, en ek wil dit verder voer wat my kliënt betref en, want ek weet nie in wie se opdrag hierdie dagvaarding uitgestuur is nie, want verder moet so 'n dagvaarding deur 'n Kommissaris onderteken word. Ek dink die wetgewer was baie versigtig oor hierdie Artikel 29 omdat dit so drasties was. Daar is geen Kommissaris, het hierdie dagvaarding geteken nie. Die Amnestie Komitee, lid dit lyk vir my soos M. Coetzee, het hom geteken as (onduidelik)

VOORSITTER: Ja, dit is ingevolge 'n gedelegeerde bevoegdheid.

ME VAN DER WALT: Ja maar goed, daardie is nou nie vir my, ek noem dit maar net vir u, maar my kliënt is alreeds deur die Kommissie, die Ondersoekeenheid van die Kommissie ingevolge Artikel 29, is hy alreeds op die 8ste Mei 1997 is hy gedagvaar om in Durban te verskyn. Daar was toe 'n ander persoon, 'n mnr Schoon wat ook gedagvaar was en daardie dag het hulle nie klaargekry nie, en is die saak verdaag na 30 Augustus 1997 en toe het die Agbare Voorsitter, en dink dit was mnr Lax, het dit nie in sy dagboek geskryf nie en toe was dit ook onverrigte sake vir my kliënt en toe het hy weer voor die Kommissie verskyn op die 9de Maart 1998. Nou wil ek vir u net ook aantoon dat die Ondersoekeenheid het alreeds op daardie stadium geweldige ondersoek gedoen met betrekking tot aspekte wat volgens sekere dokumentasie wat nog nie, ek glo nie voor u is nie, wat glad nie betrekking het op die applikant nie, was daar ondersoek gedoen. As u my sal toelaat sal ek vir u dit lees. Aanvanklik, die eerste deel is "The role and Activities of the Security Branch in Northern Natal, the Role of Special Constables in Northern Natal and then the Murder of Political Activists including Star, ANC leader in Piet Retief, Mike Mcetywa in Pongola", dit is nou die moord wat hier betrekking het, "Siprean Maseko in Pongola" en dan gaan dit, en dan is daar 'n gedeelte by wat hulle sê dat hulle wil, en hulle noem dit nog "I wish to bring to your attention that two members of our Investigation Unit met with Mr Mkhwanazi last year and we raised several of the issues outlined in the subpoena with him. He is thus aware of the nature of the allegations against him." En dan kom hulle, dan sê hulle hulle wil hom ondervra, weer oor die "Security Branch", en dan gaan dit verder en dan kom dit weer hier by die "murder of Star" en Mike Mcetywa en "murder of Siprean Maseko" en dan die "murder of the Keswa family, the attack of the night vigil of Mike" en die "attack on the house of Jabu Mkethwa", ek dink dit is die moeder van die oorledene in hierdie saak. En hy is toe deeglik ondervra deur die Komitee. Met respek, op watter gronde kan hy nou weer as, en ek gee dit nie toe nie, kan die Amnestie Komitee vir hom nou weer ondervra as hy reeds ondervra is, as die ondersoekwerk reeds gedoen is?

VOORSITTER: Ja, dit lyk vir my mevrou dat daardie verrigtinge waarna u daar verwys, het te doen met die algemene ondersoekwerk wat die Waarheids- en Versoeningskommissie gedoen het.

ME VAN DER WALT: Artikel 29?

VOORSITTER: Ja, dit sluit 'n hele klomp ander onderwerpe in en so aan. Dit blyk asof die, u het vir ons gesê dit is die subpoena ingevolge hierdie verrigtinge is ingevolge Artikel 29(1)(c), dit is waar 'n getuie gedagvaar word vir 'n verhoor, nie vir 'n ondersoek nie. So met ander woorde, wat gebeur het is dat u kliënt is gedagvaar vir die doeleindes van hierdie amnestie aansoek voor ons, nie in verband met enigeen van die ander goeters nie. Dit is 'n gewone getuie dagvaarding eintlik maar vir 'n verhoor.

ME VAN DER WALT: Ek wil met respek van u verskil, want Artikel 29 en veral wat die Artikel 31, wat daarmee saamgelees moet word, en in Artikel 29 is dit baie duidelik, die bevoegdheid van die Kommissie met betrekking tot ondersoeke en verhore, en hier gaan dit, die skriftelike kennisgewing om die persoon op te roep voor 'n Kommissie te verskyn en te getuig en te beantwoord op vrae, waar 'n gewone Artikel 19 subpoena wat uitgestuur word vir 'n geïmpliseerde persoon, daardie persoon het die reg om te kom as hy wil, hy kan wegbly, hy kan net sy regsverteenwoordiger stuur, maar nou hier, in hierdie geval is hy verplig om te kom getuig.

VOORSITTER: Ja, dit is soos 'n getuie dagvaarding.

ME VAN DER WALT: Ja, en dan moet hy inkriminerende vrae antwoord.

VOORSITTER: Nee, nie noodwendig nie.

ME VAN DER WALT: Artikel 31 sê so, Mnr die Voorsitter.

VOORSITTER: Ja, maar dit is iets wat moontlik kan gebeur, maar ek meen die punt is dat in gevolge die bevoegdheid wat aan die Komitee, die Amnestie Komitee verleen word in Artikel 29(1)(c) is u kliënt natuurlik gedagvaar as 'n getuie hierso en dit is die basis waarop hy vandag teenwoordig is.

ME VAN DER WALT: Ek wil dit weereens aan u voorhou en dit is dan my instruksies ook, dat die Kommissie waarna verwys word in Artikel 29, nie die Amnestie Komitee insluit nie en dat hierdie dagvaarding nie regsgeldig is nie.

VOORSITTER: Ja, ons het daardie punt het ons.

ME VAN DER WALT: En ek wil dit dan, die tweede aspek ook met respek weereens aan u voorhou dat die aspekte waaroor hy in hierdie saak moet kom getuig, is alreeds mee gehandel in Durban. 'n Verdere aspek as ek die dokumente wat mnr Bizos tot ons beskikking gestel het, is dit baie duidelik dat die getuienis wat mnr Mkhwanazi moet kom lewer, handel oor 'n amnestie aansoek wat reeds in Nelspruit plaasgevind het, en dit is mnr Msibi en mnr Keswa. In daardie geval het die Komitee nagelaat om mnr Mkhwanazi in kennis te stel dat hy 'n geïmpliseerde persoon is. Sy Edele Regter Ngoepe het voorgesit, die oggend voor die verhoor het mnr Black, die persoon wat die getuienis gelei het van die Komitee, my geskakel en gesê dat my kliënt geïmpliseer gaan word, toe sê ek vir hom - wel, ek is toe op pad Upington toe en waar moet ek nou my kliënt kry, die oggend voor die verhoor? Aan die einde van die amnestie aansoek was daar opdrag gegee deur sy Edele Regter Ngoepe dat die verklarings wat ook deel vorm van stukke van mnr Bizos, die twee verklarings van mnr Msibi en Keswa, moet aan my kliënt gestuur word. Daar is toe 'n skrywe deur my aan die Amnestie Komitee geskryf en gesê dat my kliënt was die reg ontsê om teenwoordig te wees toe die persone getuig het en in my besit het ek toe verklarings gehad van mnr Msibi en mnr Keswa wat elkeen in wese van mekaar verskil. Hy het geen kommentaar daarop gelewer nie, hy het ook nie die reg gehad om enigiemand te kruisverhoor nie. Wat ek verder wil betoog dat sy getuienis wat hier gelewer moet word, indien hierdie Artikel soos u dit interpreteer, korrek is, dan het dit geensins betrekking op die aansoek van mnr Mavuso nie.

VOORSITTER: Dit is miskien iets wat ons sal moet kyk as daar pogings is om sy getuienis voor ons te plaas, om te sien of dit relevant is, maar ek dink vir die punt in limine, handel dit oor die bevoegdheid, as ek u korrek verstaan handel dit oor die bevoegdheid om daardie dagvaarding in die eerste plek uit te gereik het.

ME VAN DER WALT: Dit is korrek, ja.

VOORSITTER: En u punt is dit is onreëlmatig?

ME VAN DER WALT: Ja.

VOORSITTER: En daarom is u kliënt nie verplig om op daardie subpoena te reageer nie?

ME VAN DER WALT: Dit is korrek.

VOORSITTER: Goed, het u enige ander submissies?

ME VAN DER WALT: Nee, dit is al.

VOORSITTER: Goed, dankie. Ms Mtanga, I am going to go straight to you, I will ask the other parties if they really want to add anything further. I assume from what Ms Van der Walt had indicated to us, that the subpoena was in terms of Section 29(1)(c), it is a witness subpoena?

MS MTANGA: Yes Chairperson. Chairperson, if I can also place on record, other people were subpoenaed for the hearing, it is Jabulani Kunene, Rasta Mncwango.

CHAIRPERSON: You must just give us a minute.

MS MTANGA: Malebele Buthelezi, Amos Mtungwa, Philemon Mtungwa, Sam Khumalo, Velaphi Khumalo, Ali Msibi, Sergeant M.Q. Mkhwanazi and Mdu John Msibi. All these mentioned persons were notified in terms of Section 19 as implicated people and were further served with the subpoenas in terms of Section 29 for the purpose that they give evidence if the need arises during the proceedings of the hearings. Thank you Chairperson.

CHAIRPERSON: Thank you Ms Mtanga. Is there any one of the other parties that want to raise any issue in regard to the point that was raised by Ms Van der Walt, before we rule on that? Mnr Van der Heyde?

MNR VAN DER HEYDE: Mnr die Voorsitter, dit het vanoggend tot ons kennis gekom dat daar so 'n aansoek gebring gaan word. Ons het intussen 'n Advokaat genader om vir ons sy opinie te gee rakende hierdie aangeleentheid en hy het gesê dat hy ten laatste middagete vir ons dit sal kan gee. Ek wil die Kommissie versoek, die Komitee versoek om ons asseblief die geleentheid te gee om dalk miskien net na middag-ete te kan antwoord op die aansoek, as dit moontlik is.

VOORSITTER: Vra u dat die aansoek moet vir die oomblik afstaan totdat u in 'n posisie is om moontlik 'n submissie te maak as dit sou nodig blyk?

MNR VAN DER HEYDE: Ek sal dit waardeer, ja. Dit is reg.

VOORSITTER: Goed. Yes, I assume there is nobody else who wants to make a submission. Mr Bizos?

MR BIZOS: I merely want to place on record that we were not favoured with any notice in relation to the point. I would also ask the Committee to enquire from the persons purporting to act for Mr Mkhwanazi whether she has received any specific instructions from him to appear on his behalf because I am informed that at the pre-trial conference counsel purporting to appear on his behalf, said that she could not get hold of him and that she had heard that he was involved in an accident and was in a hospital not known to her. I merely wish her to place on record as to whether she has instructions to appear for him and whether or not he is here today or not.

ME VAN DER WALT: Mnr die Voorsitter, seersekerlik het ek beter dinge om te doen as om hier te kom sit sonder dat ek instruksies het. Die tweede plek is, dit is so mnr Mkhwanazi was in 'n motor botsing betrokke toe ek hom die eerste keer probeer kontak het, het sy familie dit vir my oorgedra. Met die voor-konferensie het ek hom nog nie gekontak nie. Ek het hom gekontak, ek het instruksies en mnr Bizos hoef nie verder daaroor bekommerd te wees nie.

MR BIZOS: The question as to whether he is present here today or not, has not been answered.

ME VAN DER WALT: Hy sal beskikbaar wees afhangende van die besluit van die Komitee.

MR BIZOS: Thank you.

CHAIRPERSON: Yes. Me Van der Walt, ek aanvaar u het nie enige beswaar teen die versoek van mnr Van der Heyde dat die aansoek vir die wyle afstaan totdat hulle in 'n posisie is om dalk submissies te maak as hulle wil? Ek veronderstel u kliënt word nie regtig benadeel as ons met die verrigtinge aangaan en later terugkom na die ...

ME VAN DER WALT: Ek het geen beswaar nie.

VOORSITTER: Goed. Yes, well, under those circumstances, we are going to let the application stand down to allow Mr Van der Heyde an opportunity to consider the position of his clients and possibly make submissions in regard to the application if he is so advised. Is there any other preliminary point that we need to deal with or can I go back to Mr Prinsloo? Yes, Mr Prinsloo?

MNR PRINSLOO: Mnr die Voorsitter, daar is geen aspekte wat ek wil opper op die stadium nie.

VOORSITTER: Goed. Dit lyk of daar nie enige verdere punte in limine is nie, so miskien kan ons by u aansoek dan uitkom.

MNR PRINSLOO: Dit is korrek, ja.

VOORSITTER: Ja, is u applikant teenwoordig, en aanvaar so, né?

MNR PRINSLOO: Die applikant sit langs my Mnr die Voorsitter.

VOORSITTER: Goed, wil u hê ons moet vir hom die eed oplê?

MNR PRINSLOO: Soos dit u behaag. Mr Mavuso, can you hear the translation over your headset?

MR MAVUSO: I have just started hearing now, all along I wasn't following the proceedings.

CHAIRPERSON: Very well, you know perhaps just to explain to you, nothing has happened that really affects your position up to now. This was just an application that was brought by one of the other lawyers, but it doesn't really directly concern you. Do you understand?

MR MAVUSO: Would you please repeat that, I couldn't understand.

CHAIRPERSON: Yes, I have just noted that you have said that you have only heard the proceedings now that you have the headphones on and you didn't hear previously. I was just explaining to you that what happened previously, didn't really affect you directly, it was an application that was addressed to us by one of the other lawyers.

MR MAVUSO: I do understand.

CHAIRPERSON: I am going to administer the oath to you now, I am going to ask you please to state your full names for the record.

MR MAVUSO: Nkosinathi Emmanuel Mavuso.

NKOSINATHI EMMANUEL MAVUSO: (sworn states)

CHAIRPERSON: Thank you, you may be seated. Mr Prinsloo?

INTERPRETER: Mr Chairperson, we don't have Afrikaans Interpreters.

CHAIRPERSON: Yes, just give us a minute Mr Prinsloo. We seem to have a difficulty with an Afrikaans Interpreter. Ms Mtanga, haven't we got one present at this stage?

MS MTANGA: No Chairperson, we are trying to get one person to arrive here, but they have not succeeded yet, the person was busy. The Logistic Officer hasn't been successful yet.

CHAIRPERSON: So are our present Interpreters not able to interpret from Afrikaans to I assume Zulu?

MS MTANGA: No, they are not able to do so Chairperson, and further, there are some of us who need translation, interpretation from Afrikaans to English and that is not being provided.

CHAIRPERSON: What is the position with the Afrikaans Interpreter?

MS MTANGA: Can I just get a second to consult with the Logistic Officer?

CHAIRPERSON: Yes.

MS MTANGA: One person is being located, but we have not succeeded yet in finding that person. Other Interpreters who are around the Pretoria area, are in a conference, so we are not sure as to whether we will get this person and when he will arrive.

CHAIRPERSON: Yes. Yes, I mean we obviously wouldn't be able to proceed, I assume that Mr Prinsloo would be presenting his case in Afrikaans?

MNR PRINSLOO: Mnr die Voorsitter, ek kan in Engels voortgaan in sy getuienis, maar daar is van die verklarings wat in Afrikaans is, wat dan vertaal sal moet word na Engels toe en dan na hom toe, wat hy dan moet bevestig of ontken dat hy dit gemaak het of wat die posisie is.

VOORSITTER: Sal u dit so kan hanteer?

MNR PRINSLOO: Ek sal dit so hanteer, Mnr die Voorsitter, maar as daar 'n probleem is, dan sal ons, ek my op die Komitee beroep.

VOORSITTER: Ja, nee, ek is jammer vir die ongerief. We must apologise for the inconvenience, we do not have an Afrikaans Interpreter immediately available. Mr Prinsloo intended to present the case to us in Afrikaans, as he would of course normally be entitled to do, but he has agreed to assist us by leading his client's evidence in English, which will of course enable us to proceed at this stage, without interrupting the proceedings. In the interim, I assume that we would endeavour to locate and to get an Afrikaans Interpreter to the venue as quickly as possible.

MS MTANGA: Yes, Chairperson, we are attending to that. I also need to place it on record that in the translations or interpretation, the lawyers are not normally accommodated, because we look at the language spoken by the applicant, the victims and the people who would be giving evidence, so that is the reason why we didn't get an Afrikaans Interpreter for this case.

CHAIRPERSON: Yes, it is a pity but we seem to have at least temporarily resolve the situation. We are indebted to you Mr Prinsloo, for being of assistance. You know, as I have indicated, if there is any help that we could give to you, please - how do they say, every little bit helps. Yes, well, thank you.

EXAMINATION BY MR PRINSLOO: Mr Mavuso, you are the applicant in this matter, is that correct?

MR MAVUSO: That is correct.

MR PRINSLOO: Is it correct that you were charged and convicted in the Circuit Court in Piet Retief on a charge of murder and attempted murder, is that correct?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: And Mr Mavuso, is it correct that you commenced to serve your term of imprisonment in Barberton prison?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: And is it correct that you made an application for amnesty with regard to the murder of Mr Mike Mcetywa? It is Mcetywa, the Interpreter translates Mthetwa, that is incorrect?

MR MAVUSO: That is correct.

MR PRINSLOO: You also made an application for the attempted murder of a lady that was in the vicinity, that was also shot?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: And is it also correct that you were in possession of an unlicensed firearm and ammunition?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: And those are the matters relating to this application for which you make an application for amnesty?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: And any delict that has been committed in the actions committed by you during that time? Mr Mavuso, the application which appears before the Committee as in the index which commences at page 1, and in this application which is recorded in Zulu, I will shot it to you, is it correct that this application was completed by an inmate, a co-prisoner in the Barberton prison?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: And is it that particular person's handwriting in this document?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: Is it also correct that you had no legal advice or any legal assistance in the compiling of this particular document which is before the Committee which comprises pages 1 to 10 in the index to this document?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: Is it also so that in this document, in the index, there is a purported translation from Zulu to English which is not in your writing and which is not signed by you from page 11 to 17? Is that correct?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: And is it correct Mr Mavuso that on a particular day of which the date is not recorded in the statement, I am referring to pages 18 to 20 of the same document Mr Chairman, and this statement was obtained by a member of the Amnesty Commission at the time, Mr Eddie Kaluso?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: And in that document you also set out certain facts pertaining to this particular application? Is it also correct Mr Mavuso, whilst you served your time of imprisonment in the Barberton prison, you were visited by members of the South African Police Service on the 3rd of February 1998 and on that particular day, a statement was obtained from you upon the instructions of the Attorney General, so you were informed by at the time Senior Superintendent Combrink? Is it correct Mr Mavuso?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: I will now refer to this particular statement which I have just mentioned and you will please tell the Committee as to whether you agree with that or disagree with it. This statement is in Afrikaans as you will notice Mr Chairman and - Mr Chairman, as we discussed in Chambers, there are certain documents which are not relevant and not here for public scrutiny and it forms part of a document produced by the family of the deceased which was served upon us, and it is referred to as Bundle 2 and with the assistance and guidance of the Committee, Mr Chairman, I don't know whether I should remove this document, the statement from this Bundle 2 or whether it should be retained in this Bundle. The rest might not be relevant. Shall I remove it and present it to the Committee, Mr Chairperson?

CHAIRPERSON: Do you at this stage just want to refer to the particular statement, perhaps you can give us the page, paginated number as well.

MR PRINSLOO: Mr Chairman, the typed section which is unsigned appears from page 1 to 5 in this Bundle 2 and the written document appears paginated from page 6 up to page 13, Mr Chairman. 

CHAIRPERSON: Yes, is that the document that you wish to deal with now?

MR PRINSLOO: That is the statement that I am going to refer to.

CHAIRPERSON: Yes. No, you don't need to physically remove it from your papers, we are noting it here that you want to deal with this particular document. It is before us as well, we will eventually make an arrangement to ensure that only those documents or portions of documents that have in fact been dealt with, will form part of this record before us.

MR PRINSLOO: I accept that.

CHAIRPERSON: We will note down as you deal with them.

MR PRINSLOO: Thank you Mr Chairman. Mr Chairman, as you will notice, this particular statement is in Afrikaans and I will then proceed to translate it to the witness.

CHAIRPERSON: Are you dealing with the typed version?

MR PRINSLOO: Mr Chairman, where it is illegible, I will have to revert to the typed side of it. But I think it will be easier for me to refer to the typed version.

CHAIRPERSON: Yes, perhaps you can just indicate where you are.

MR PRINSLOO: As you please, Mr Chairman. Mr Mavuso, the statement I have just referred you to which was obtained from you by Superintendent Combrink, you stated to him you are at present serving a term of imprisonment on a charge of murder and a reference number Pongola CR120/11/93 and you are serving a sentence of 25 years' imprisonment. Maybe the Interpreter could just indicate if I am going too fast, Mr Chairman, I can't see her from here. Maybe she can just say it on the microphones, then I will hear her, I am listening to the Zulu. Thank you. You are residing at Dumbe Solo Gogana under Chief Dlamini, is that correct Mr Mavuso?

MR MAVUSO: Yes, that is correct, Solo Gogana area.

MR PRINSLOO: Thank you, the witness has stated now the name, Mr Chairman, Solo Gogana. You cannot recall the date, but it was during 1993 and that you were near, I am not sure whether this is correctly recorded here, the name of this hospital, maybe the witness can assist us Itshelejuba hospital and you were at that stage accompanied by one Philemon Mtungwa? What did you say Mr Mavuso, I didn't quite hear that?

MR MAVUSO: Itshelejuba hospital.

MR PRINSLOO: Thank you. And that you proceeded to the house of one Amos Mtungwa?

MR MAVUSO: Amos.

MR PRINSLOO: Is that correct?

MR MAVUSO: Yes.

MR PRINSLOO: The last mentioned, this Amos Mtungwa, was present at his home?

MR MAVUSO: Yes, he was.

MR PRINSLOO: And we drove in Amos' vehicle to Pongola?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: And Amos told you that the deceased Mike, a member of the ANC, will give them lots of problems in Pongola? Is that correct?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: At Pongola, we met Sandanezwe Nlangamandla and Sam Khumalo in town and we picked them up and proceeded to the Wimpy in Pongola?

MR MAVUSO: Yes, it is true but there are other people I didn't mention on my statement.

MR PRINSLOO: I don't know, is it being translated because I am hearing the Zulu at this stage Mr Chairman, I am not listening to the English?

CHAIRPERSON: Yes.

MR PRINSLOO: And who is the other person whom you didn't mention?

MR MAVUSO: In that statement the person who is missing there is Philemon Mtungwa, Amos Mtungwa, Sam Khumalo, Velaphi Khumalo, Malebele Buthelezi, Rasta Mncwango, Nlangamandla and myself.

CHAIRPERSON: Mr Prinsloo, won't you take him through that again, but at a pace that will allow us to just take it down please.

MR PRINSLOO: I beg your pardon Mr Chairman.

CHAIRPERSON: Will you just take him through these.

MR PRINSLOO: Do you just want him to repeat the names?

CHAIRPERSON: The list of names, but just at a more moderate pace please.

MR PRINSLOO: Mr Mavuso, will you please repeat the names slowly so that the Honourable Chairman and Committee members and other people present, can record them. Just give us the names again, repeat them as far as you can remember them and give them slowly please.

MR MAVUSO: Amos Mtungwa, Philemon Mtungwa, Sam Khumalo, Velaphi Khumalo, Sandanezwe Nlangamandla, Malebele Buthelezi.

ADV DE JAGER: Just a little bit slower. Could you start again with Sam?

MR MAVUSO: Malebele.

MR PRINSLOO: Malebele Buthelezi, Jabulani Kunene, Sandanezwe Nlangamandla, Sam Khumalo, Velaphi Khumalo, Rasta Mncwango, Jabulani Kunene, I don't know if I am repeating the same names, because I have repeated the names, I may be repeating others, but I think we were eight in all.

MR PRINSLOO: Mr Mavuso ...

ADV GCABASHE : Sorry Mr Prinsloo, just to get clarity on this, these are all the people who met at Pongola, just clarify exactly where was this grouping?

MR PRINSLOO: I will do that Mr Chairman. 

MR MAVUSO: Yes, we met at Pongola.

MR PRINSLOO: The answer is yes, Mr Chairman. According to the statement, paragraph 3, it is stated here that Velaphi Khumalo known as Verch Buthelezi, whose name you don't know, is that correct?

MR MAVUSO: No, I think the Interpreter may have interpreted something wrong, Velaphi Khumalo, Malebele Buthelezi, there isn't any Velaphi Buthelezi.

MR PRINSLOO: Could you just explain that again Mr Mavuso, this name as Verch Buthelezi, is that correct or incorrect?

MR MAVUSO: It is incorrect, the surname is Khumalo not Buthelezi. His first name is Velaphi and sometimes they call him Verch or Mavergi.

MR PRINSLOO: So, he is sometimes called Mavergi, but he is not Buthelezi but Khumalo, is that what you are saying?

MR MAVUSO: Yes.

MR PRINSLOO: And the other person is Philemon Nlangamandla?

MR MAVUSO: It is Philemon Mtungwa, not Nlangamandla. Some people, they will refer to Mtungwa people as Nlangamandla, it is a praise name, so some they call him Nlangamandla, some they call him Mtungwa. It is the same thing, because it is a praise name for Mtungwa people.

MR PRINSLOO: And the other person, Amos Nlangamandla, was also present?

MR MAVUSO: Amos Mtungwa, yes, he was present. His surname is also Mtungwa.

MR PRINSLOO: And you continue to say in the same paragraph that "we had discussed this problem with regard to deceased Mike." Is that correct?

MR MAVUSO: Yes, that is correct.

MNR PRINSLOO: Mnr die Voorsitter, dit blyk of daar nou tolke opgedaag het, miskien kan ek die Afrikaanse verklaring vir hulle gee, vir die tolke en dan kan ons voortgaan. Sal dit miskien gerade wees om 'n kort oomblikkie te verdaag Mnr die Voorsitter, om net te reël met die tolke dat hulle die dokument kry om voort te gaan?

VOORSITTER: Ja, ek dink so. I think so. Let us stand down briefly just to enable the Afrikaans Interpreters to pick up and then we will reconvene as soon as they are able to continue. We will stand down briefly.

COMMITTEE ADJOURNS

ON RESUMPTION:

NKOSINATHI EMMANUEL MAVUSO: (still under oath)

EXAMINATION BY MR PRINSLOO: (continues) Thank you Mr Chairperson, the Interpreters are now available, I would like to place it on record, Mr Chairperson, I did not cause this long delay. I was ready quite early, I don't know what the cause was. We handed the documentation to the Interpreters. I will now continue in Afrikaans. 

CHAIRPERSON: We are ready to proceed. Yes Mr Prinsloo.

MR PRINSLOO: Thank you Mr Chairperson. Mr Chairman, I am going to start with paragraph 3 again to enable the Interpreters to interpret that paragraph. I refer to page 1 of Bundle 2, paragraph 3. The Afrikaans reads -

&#9;&#9;"... In Pongola we picked up Sandanezwe Nlangamandla and Sam Khumalo in town and went to the Wimpy."

&#9;Is that correct Mr Mavuso?

MR MAVUSO: Yes, that is correct.

INTERPRETER: I didn't get the other part of his - yes, that is correct.

MR PRINSLOO: You say it is correct? 

ADV GCABASHE : Sorry, but you said that that happened on the following day, you said something about two successive days?

MR MAVUSO: I said it happened after the day we met at Wimpy.

MR PRINSLOO: I will get there at a later point again Mr Chairman, the persons that you have mentioned, was Velaphi Khumalo known as Verch Buthelezi, whose name I can't remember and then you gave witness that the name Verch Buthelezi is not another person, but that Velaphi Khumalo is known as Mavergi but not Buthelezi.

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: Afterwards you also gave witness that Philemon Nlangamandla should be Mtungwa, not Nlangamandla?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: And the other person was Amos Nlangamandla, who was also there at the time?

MR MAVUSO: His name is not Amos Nlangamandla, it is Amos Mtungwa. 

MR PRINSLOO: It must be Amos Mtungwa not Amos Nlangamandla, is that what you are saying?

MR MAVUSO: Yes, Amos Mtungwa not Amos Nlangamandla.

MR PRINSLOO:&#9;"We then mentioned the problem of Mike the deceased, is that correct?"

MR MAVUSO: Yes, this is correct.

MR PRINSLOO:&#9;"We then decided in the discussion (and in the typed version it says that Mike has to be made, that is a direct translation but it comes down to it) that Mike had to be killed?"

MR MAVUSO: Yes, that is correct.

MR PRINSLOO:&#9;"At that stage we were all members of the IFP. During this meeting it was also decided that I will kill the deceased because I was not known in Pongola."

MR MAVUSO: Yes, that is correct.

MR PRINSLOO:&#9;"After the meeting, we separated and I returned to Piet Retief where I was living at that stage."

MR MAVUSO: Yes, that is correct.

MR PRINSLOO:&#9;"I did not know the deceased but he was described in such a way to me by Velaphi, that I could recognise him quite easily."

MR MAVUSO: Yes, that is correct.

MR PRINSLOO:&#9;"Sandanezwe Nlangamandla and Velaphi fetched me in Piet Retief at one stage in an attempt to kill the deceased, but we could not find him."

MR MAVUSO: On the first day, Sandanezwe came with Sam, not with Velaphi, he came with Velaphi on the following day.

MR PRINSLOO: With Sam and not Velaphi?

MR MAVUSO: Yes, on the first day it was Sam and Sandanezwe Nlangamandla.

MR PRINSLOO: We then go further in your affidavit, that &#9;&#9;"... there were further discussions at this opportunity."

ADV DE JAGER: Could you please just refer to the paragraph numbers please?

MR PRINSLOO: Yes, as you wish Mr Chairman. I refer to page 1, that is the last paragraph, the last paragraph of paragraph 3, the last sentence.

&#9;&#9;"There was more than one discussion around the matter and on the day that I could not find him, we slept in the hotel in Pongola."

&#9;Was there more than one meeting, more than one discussion?

MR MAVUSO: Two meetings, the first one, we met at Wimpy restaurant, the second one was on the day when I was supposed to murder, but I didn't get hold of him.

MR PRINSLOO: Is it correct that you slept in the hotel in Pongola that evening? In the hotel?

MR MAVUSO: No, I didn't stay in a hotel.

MR PRINSLOO: So you did not sleep in the hotel, in that sentence where it refers to sleeping in the hotel? In paragraph 5, the first sentence Mr Chairman, on page 2 -

&#9;&#9;"... at one stage we received information that the deceased would on the 22nd of November go to Vryheid."

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: You say that is correct?

MR MAVUSO: Yes.

MR PRINSLOO:&#9;"On the date mentioned, early that morning, Sam Khumalo and Velaphi Khumalo fetched me in Piet Retief and took me to Pongola."

MR MAVUSO: Yes, that is correct.

MR PRINSLOO:&#9;"Sam had two weapons, those being a 38 Special and a 9 mm short?"

MR MAVUSO: Yes, that is correct.

MR PRINSLOO:&#9;"I took the 9 mm to shoot the deceased."

MR MAVUSO: Yes, that is correct.

MR PRINSLOO:&#9;"When we got to Pongola, near the garage where the trucks park, that is where we stopped."

&#9;Is that correct Mr Mavuso?

MR MAVUSO: No, we didn't stop near where the trucks stop, we stopped near a taxi rank because the deceased was going to board the taxi to go to Vryheid.

MR PRINSLOO: So it was the taxi rank from which the deceased would depart, is that correct?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO:&#9;"Velaphi went to the shops and on his return, he gave me a description of the deceased's clothes that he was wearing."

&#9;Is that correct?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: In the statement it says that -

&#9;&#9;"... you then got on and then walked in the direction of the shops?"

&#9;Did you walk, did you climb into a vehicle, what was the situation? Did you walk or did you climb into a vehicle?

MR MAVUSO: We walked. 

MR PRINSLOO: Page 9 Mr Chairman, in the hand-written document it appears in the first line, if we just look at page 8, I then got off, not got on, it seems to be a typing error and walked in the direction of the shops. I will just continue with the hand-written version, page 9, that is the third line.

&#9;&#9;"... I found the deceased right in front of the Protea shop, I took out the weapon and fired various shots at the deceased, without speaking to him? I can't remember how many shots I fired. I think it may have been four."

&#9;Is that correct Mr Mavuso?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO:&#9;"I then fled from the scene. My jacket, my balaclava and the weapon I threw in the bushes nearby. Shortly after the incident I was arrested and took to the Pongola Police station. The also found the property of mine that I had mentioned. The Police had also found the items that I have mentioned."

&#9;That is paragraph 7 Mr Chairman, the hand-written version on page 9.

&#9;&#9;"I know Alpheus Msibi and Mzimkosi Qina Mkhwanazi. They were never involved with the matter or with any meetings and discussions regarding this matter. I will repeat that again, they were never involved with the matter or any meeting regarding the matter. Platus Arthur Keswa was also never there when the matter was discussed."

&#9;Is that correct Mr Mavuso?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: Paragraph 8, page 10 Mr Chairman, that is paginated- 

&#9;&#9;"... Mzimkosi Mkhwanazi did however bear witness in the case against me, he did bear witness for me. I gave information to my legal representative regarding hair on the balaclava, I would just repeat that again, I gave information to my legal representative regarding the possibility of hair on the balaclava that I used in my defence. That is why he called Mkhwanazi to take the stand."

&#9;Is that correct Mr Mavuso?

MR MAVUSO: Yes, that is correct, but I would like to clarity something there. I heard that you said Mkhwanazi was there when this incident occurred, Mkhwanazi wasn't there when this incident occurred, but he was there when I was investigated or when I was interrogated at the Police station.

MR PRINSLOO:&#9;Mkhwanazi was involved with your questioning at the Police station?

MR MAVUSO: I have forgotten his last name, I think it is Van der Meer, there was a white man who was their Head or their senior in that Police station.

MR PRINSLOO: It was Mr Vermeulen from the South African Police Service who questioned you. In paragraph 9 -

&#9;&#9;"... I called the Police after I had completed my statement up till paragraph 8 on the 14th of May 1997."

&#9;Are you now referring to another statement that you had taken down, because in the same sentence you go further and say that you -

&#9;&#9;"... did not want to sign it, I wanted to add the following to my statement."

&#9;Then you continue in paragraph 10 -

&#9;&#9;"... the next morning after we had left the hotel as mentioned in paragraph 4, we held a further meeting."

&#9;Is that section correct?

CHAIRPERSON: Mr Prinsloo?

MR PRINSLOO: Yes Mr Chairman?

CHAIRPERSON: That word, is that slept or walked, the second word in paragraph 10? Did they sleep in the hotel or leave the hotel?

MR PRINSLOO: It seems to have been slept, thank you Mr Chairman.

&#9;&#9;"The next morning after we had slept in the hotel as mentioned in paragraph 4, we held a further meeting."

&#9;Did you sleep in the hotel?

MR MAVUSO: No, we didn't sleep in a hotel.

ADV DE JAGER: Mr Prinsloo, you are going back to a section that he had left out of his statement?

MR PRINSLOO: Yes, thank you, that is correct Mr Chairman. Did you hear that Mr Mavuso, is this the section that you referred to which you had mentioned earlier?

ADV DE JAGER: That was therefore while you were still in Piet Retief?

MR PRINSLOO: We you in Piet Retief at that stage Mr Mavuso, or where were you?

MR MAVUSO: Which time are you referring to?

MR PRINSLOO: Were you in Piet Retief or in Pongola?

ADV DE JAGER: They have been fetched from Piet Retief to Pongola according to paragraph 4.

MR PRINSLOO: May I just clarify this please. Mr Mavuso, is your statement correct that you were taken from Piet Retief to Pongola, is that correct?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: And was there a further meeting that was held in Pongola which consisted of the following people that I am now going to read to you, Sam Khumalo, was he there? Velaphi Khumalo?

MR MAVUSO: Yes.

MR PRINSLOO: Jabulani Kunene and Rasta Mncwango? Was he there?

MR MAVUSO: Rasta Mncwango.

MR PRINSLOO: Was he present?

MR MAVUSO: Yes, he was there, but on the day of the meeting, I am referring to the meeting which occurred at Wimpy restaurant the first day, I don't know which day you are asking me, the second day it was the day we were leaving for Pongola, I mean Mahlatini at Nongoma. This was the second time I was fetched from Piet Retief.

MR PRINSLOO: Malebele Buthelezi, was that person present?

MR MAVUSO: Yes, he was present.

MR PRINSLOO: And then you go further, the same page at the bottom -

&#9;&#9;"... Sam Khumalo picked us up in a Toyota Hi-Ace and took us to the Pongola/Nongoma road."

&#9;Is that correct?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO:&#9;"We stopped by the side of the road and met in the meeting, we held our meeting in the vehicle."

&#9;Is that correct Mr Mavuso?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO:&#9;"We discussed how the deceased should be found and killed."

MR MAVUSO: Yes, that is correct.

MR PRINSLOO:&#9;"I can't remember exactly who said what, I can only remember that Jabulani Kunene said that he should be killed when the deceased goes to Vryheid. He also warned me that if I killed the deceased in Vryheid, I would have to get away quickly since the Police in Vryheid sometimes use a helicopter."

&#9;Is that the statement that you gave to Superintendent Combrink on the 3rd of February with the corrections that you have now brought about here?

MR MAVUSO: That is correct.

MR PRINSLOO: So, this is the statement on which you rely in your application, which is also in front of this Honourable Committee? What is your answer Mr Mavuso? Do you understand what I mean, that this statement you are requesting that with the corrections, it should also be part of the application?

MR MAVUSO: Yes, I do understand.

MR PRINSLOO: Mr Mavuso, you also gave testimony that you made a statement while you were in jail or in prison, and that this statement was taken down by a member of the Amnesty Commission, Mr Eddie Kaluso and this statement is contained in pages 18 to 20 of the paginated section. It is known as the index and also the typed version, pages 21 to 23? Can you remember this statement or do I have to go over it with you?

MR MAVUSO: Yes, I do remember the statement.

MR PRINSLOO: You remember it, so you also use this statement as part of your application?

MR MAVUSO: Yes.

MR PRINSLOO: Mr Mavuso, after you were found guilty, did you appeal against your sentence and your being found guilty, is that correct?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: During your hearing, in the court, did you plead not guilty, is that correct?

MR MAVUSO: Not guilty.

MR PRINSLOO: And during those events, you also denied being involved?

MR MAVUSO: Yes.

MR PRINSLOO: At that stage, by pleading not guilty or denying your involvement, it was untrue, in other words you knew that you were guilty and that you were involved? Why did you plead not guilty and denied not being involved?

MR MAVUSO: The first reason was I didn't want my organisation to be part of this, I was protecting my organisation and also the members who sent me to kill the deceased. And the third reason was, I was supposed to go back outside and continue with the struggle, because we were still struggling at that time.

MR PRINSLOO: You also did not make known your other colleagues in the IFP, did you, is that correct, initially?

MR MAVUSO: Yes, I didn't make any mention of their names or their identity.

MR PRINSLOO: Why did you not mention them, did you want to protect them or what was the reason?

MR MAVUSO: I was protecting the image of my organisation.

MR BIZOS: I would appeal that the witness should not be led on important and possibly controversial points.

CHAIRPERSON: Yes, you will bear that in mind, Mr Prinsloo?

MR PRINSLOO: As you wish Mr Chairman. In so far as the appeal is concerned, at that stage, you knew that you were guilty, nonetheless you appealed against your having been found guilty? Why did you do that?

MR MAVUSO: I wanted to be freed and go outside and go and struggle, because we were still involved in the struggle, the IFP and the ANC were still enemies.

MR PRINSLOO: Mr Mavuso, from when were you a member of the IFP?

MR MAVUSO: From 1977.

MR PRINSLOO: Were you continuously an active member of the IFP up to these events?

MR MAVUSO: When you say continuously active ...?

MR PRINSLOO: Were you actively involved with the goals and aims of the IFP, did you support them and subordinated yourself to the structures and commands and orders of the IFP?

MR MAVUSO: It was my first time on this incident.

MR PRINSLOO: Just a minute Mr Chairperson. Your Honour, I did not hear his answer, I just want to make sure that the Zulu and the Afrikaans versions were the same.

CHAIRPERSON: He said that it was my first time on this incident.

MR PRINSLOO: Thank you Mr Chairman. Mr Mavuso, since becoming a member of the IFP in 1977 as you say, from that time when you became a member, did you actively take part in the work of the IFP and did you subordinate yourself to the aims of the IFP?

MR MAVUSO: The first incident was the one which I have committed.

MR PRINSLOO: I am not referring to what you did, but those things that the IFP supported and worked for, did you agree with that?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: In Piet Retief and Pongola, wasn't there a struggle between the ANC and the IFP, was there or wasn't there?

MR MAVUSO: No, at the time there was no struggle between IFP and ANC, but at that time, ANC was getting stronger and stronger and the deceased was the Chairman of the ANC.

MR PRINSLOO: Do I understand you correctly as I understood you, the deceased at that stage, was the Chairman of the ANC in Pongola?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: And according to your testimony, this person, the deceased was a thorn in the flesh of the IFP?

MR BIZOS: Nobody has given that evidence yet.

CHAIRPERSON: Yes, Mr Prinsloo.

MR PRINSLOO: That is a translation I gave, I didn't say somebody said that.

MR BIZOS: Well, can we leave the translation to the Interpreters and the Translators, please Mr Chairperson?

MR PRINSLOO: I am not trying to translate it, but I am trying to keep these proceedings short, but if you wish, I will not do that. He was a Chairperson of the ANC in that area, the deceased? That aspect was actually touched upon in the pre-trial, but we had no answer to that question. Ms Lulama Mtanga also addressed the issue to the lady next to Mr Bizos, without receiving an answer. The goal is to keep these proceedings short or are we in dispute about that, then I will be very careful in how I approach this with the witness. May I hear from Mr Bizos what his problem is?

MR BIZOS: My problem is a simple one, what counsel said was that there is evidence that the deceased was a thorn in the flesh of the ANC, I don't remember - I beg your pardon, the IFP. I don't remember anybody having given that evidence.

CHAIRPERSON: Yes Mr Bizos. Yes, Mr Prinsloo, perhaps you should then be careful to put that on the record, because it is so that it hasn't actually been dealt with in the testimony. You might very well be giving a summary of something that might not be contentious, but that, for the moment, won't you just deal with it in the normal course?

MR PRINSLOO: Mr Mavuso, according to your statement with the information to your disposal, was the deceased a problem for the IFP in Pongola, is that correct?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: Did you or did you not, this person Mcetywa as a perfect target for the aims of the IFP?

MR MAVUSO: Yes, he was chosen as a perfect target.

MR PRINSLOO: Did you or did you not receive any remuneration or reward for killing this person?

MR MAVUSO: I didn't receive anything and it is the usual procedure in the IFP organisation, that if you do something for the organisation, you don't get paid. We know, I have never heard of anyone who got anything.

MR PRINSLOO: Was payment ever mentioned or in issue if you should be prepared to kill the deceased?

MR MAVUSO: It was never mentioned.

MR PRINSLOO: Did you see this assignment as an assignment coming from the IFP or as an assignment on the side?

MR MAVUSO: We were supposed to do this because my organisation agreed or wanted us to do it that way.

MR PRINSLOO: Was the South African Police Service in any way involved with this order to kill the deceased?

MR MAVUSO: No, they were not involved.

MR PRINSLOO: Specifically Mzimkosi Mkhwanazi, previously Police Sergeant, was he in any way involved or did he give you any inspiration to kill the deceased and attack the deceased?

MR MAVUSO: No.

MR PRINSLOO: Did you out of bad faith or for your own purposes, go and kill the deceased?

MR MAVUSO: No, that is not so. There was a struggle between the ANC and the IFP.

MR PRINSLOO: Mr Mavuso, do you know from whom the money came that paid your bail?

MR MAVUSO: Yes, I was told, I did ask, and I was told that members of the IFP who were residents of Piet Retief, donated.

MR PRINSLOO: Just a moment's patience, please Mr Chairman. According to the documentation before the Honourable Committee, there was a Mtshali who was to take the bail money to the prison, is that correct?

INTERPRETER: Would you please repeat that for me?

MR PRINSLOO: I just want to repeat that, a person by the name of Mtshali according to statements, was to bring the bail money to you and pay the bail at the jail in Piet Retief. Is that correct or don't you know about this?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: This specific statement is on page 56 of Bundle 2. According to the statement of this Mtshali, a person by the name of Sanda Nlangamandla had asked him to pay the bail at the jail, do you know anything about this?

MR MAVUSO: Yes, I heard that Mtshali was also arrested because they wanted to know as to where he got the money for the bail. I came to know that members of the IFP have donated the money.

MR PRINSLOO: Do you or don't you know who personally gathered the money on behalf of the IFP from the various IFP members?

MR MAVUSO: Yes, I do know. Even though I cannot mention all of them, their names, because they were too many, I don't remember some of their names.

MR PRINSLOO: What you have now said to the Committee in your testimony and your statement is that the truth or not?

MR MAVUSO: That is true.

MR PRINSLOO: And do you request the Committee to grant you amnesty on the charge of murder of the deceased, Mcetywa and then secondly also of attempted murder of the lady who was on the scene, also the possession of an unlicensed weapon as well as ammunition or any other deed that has been laid before the Committee as well as any other unlawful act that would come from your actions and for which you could be charged? Is that correct?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: I then just shortly want to ask you do you know Mdu John Msibi?

MR MAVUSO: Yes, I do know him.

MR PRINSLOO: From where do you know him?

MR MAVUSO: In meetings, when we go to rallies, I would meet him, and meetings as well.

MR PRINSLOO: Were you ever involved with him or was he in any way involved with the planning of this murder of Msibi, rather, was Msibi involved with the planning of this murder?

MR MAVUSO: No, he was not present when it was planned.

MR PRINSLOO: Did you at any stage attend a meeting at the house of the person called Alpheus Msibi in Piet Retief regarding any planning to kill the deceased, Mr Mcetywa?

MR MAVUSO: That is not true.

MR PRINSLOO: Thank you Mr Chairman.

CHAIRPERSON: Thank you Mr Prinsloo.

MR PRINSLOO: May I just mention one aspect, Mr Mavuso, how do you feel today about the deceased, that you killed, and the person that you wounded?

MR MAVUSO: I feel very sad because I know his wife will never talk or speak with my wife. My children and his children will never play together. Even though it is so sad, I would like to say I feel very remorse and I am free because I want to tell everything which is in my heart.

MR PRINSLOO: Thank you Mr Chairman.

NO FURTHER QUESTIONS BY MR PRINSLOO

CHAIRPERSON: Mr Prinsloo, is that the evidence in chief?

MR PRINSLOO: Yes Chairperson, that is the chief evidence.

CHAIRPERSON: Thank you. Yes, Mr Bizos, we seem to have a few minutes before we take our usual adjournment, I was going to call upon you to start the cross-examination.

MR BIZOS: Perhaps my cross-examination ought not to be interrupted because I have just seen Mr Van der Merwe with a bundle of documents, and there is going to be some argument. I assume in relation to the point raised and as there are only a few minutes, I would ask that that matter be dealt with so that I can, the continuity of my cross-examination is not interrupted.

CHAIRPERSON: Yes. Mr Van der Merwe, Mr Van der Heyde in your absence, has indicated that you might want to make submissions in regard to the point which was raised by Adv Van der Walt, concerning the subpoenas. I don't know if you are in a position to deal with that at this stage or not?

MR VAN DER MERWE: I find myself in the position that I agree with Mr Bizos, that we would need the lunch hour just to consider.

CHAIRPERSON: Yes, very well. We will adjourn and reconvene at two o'clock.

COMMITTEE ADJOURNS

ON RESUMPTION:

NKOSINATHI EMMANUEL MAVUSO: (still under oath)

CHAIRPERSON: Yes, Mr Van der Heyde, I see that you are on your own again?

MR VAN DER HEYDE: Yes, Mr Chairperson, firstly I just want to put on record that Mr Mtungwa, I got a phone call last night from him and he said that he was going to be here today, unfortunately he has not pitched up. At this moment, I am withdrawing my instructions from him. Then the second thing, then it is also our opinion that the work of Section 29 is within the ambit of the Amnesty Committee as long as we keep it only to this specific incident. The people testifying must be kept to this specific incident and should not be taken further, that is all.

CHAIRPERSON: Thank you very much. Mrs Van der Walt, is there anything else that you would like to add?

MS VAN DER WALT: No, I leave my argument as I have put it to you. If you will just allow me however, as a result of what you said regarding the Committee and the Commission, there is an aspect of subsection 5 of Section 29 that has certain stipulations. If such a person is to testify, then nobody but staff from the Commission or any other person who is to testify is allowed to investigate anything in accordance with this Section. We have to keep that in mind, because that is my next point as well, because the Committee and the Commission can't be read together in that regard. 

CHAIRPERSON: In that regard it is also true that the Section makes a distinction between the English term investigation and hearing. With investigation, then the restrictive stipulations are applicable.

MS VAN DER WALT: And in Section 5 they speak of testimony?

CHAIRPERSON: Yes, but that will be applicable for an investigation. I only have the English with me now, it says "no person, other than a member of the staff of the Commission or any person required to produce any article or to give evidence, shall be entitled or be permitted to attend any investigation conducted in terms of this Section." That stipulation is therefore applicable to the investigation, because the investigation is a narrower procedure, but the hearing is open to the public and the investigation is closed.

MS VAN DER WALT: Then I do not have anything to add, thank you.

CHAIRPERSON: At the commencement of the proceedings this morning, Adv Van der Walt who appears at these proceedings on behalf of Mr Mkhwanazi has raised a point concerning the validity and the enforceability of a subpoena that has been issued compelling her client to attend the proceedings before us. She has briefly based her argument on an interpretation of the provisions of Section 29 of Act 34 of 1995 which on the face of it, appears to assign the powers contained in that Section to the Commission. The submission was accordingly that the Amnesty Committee is not empowered to utilise the provisions of that particular Section and therefore the subpoena that was purportedly served, issued and calling upon her client to attend the proceedings, would be irregular and unenforceable. We have considered the argument, we have considered the relevant provisions of the Act and we are satisfied that in view of particularly Section 1(2), the powers which are contained in Section 29 and in Chapter 6, which is the chapter in which the particular Section appears, are specifically made applicable in the case of a Committee or sub-Committee of the Commission as well and would accordingly apply in the case of the Amnesty Committee, which is one of the Committees of the Commission. In all those circumstances, we accordingly refuse the application to have the subpoena issued against Mr Mkhwanazi to be set aside. Now, having made that ruling, we have a practical difficulty about these subpoenas. It is not clear to us at this stage and perhaps I should address myself first to you, Ms Mtanga, it is not clear to us whether any of the parties in fact intend or wish to submit the testimony of any one of these persons who have been subpoenaed. What is the position in regard to that, will - is anybody going to call one, one or more of these persons to testify here?

MS MTANGA: Chairperson, our position was that, that is arising from the pre-hearing conference, looking at the documents submitted, there are a lot of people who have been implicated here in the conspiracy and the planning of this murder, and based on the application alone, there wasn't such, these names were not all mentioned. The decision was that we should look at how the hearing proceeds and there might be, there might be a need for some of them to give evidence. We are likely to decide as to who would give evidence, at the end of the cross-examination of the applicant, that is Mr Mavuso.

CHAIRPERSON: Yes. And you might not call anybody?

MS MTANGA: Chairperson?

CHAIRPERSON: And you might not call anybody?

MS MTANGA: We may not call anybody if there is no need to.

CHAIRPERSON: Yes, that is our concern. Of course, these persons who have been subpoenaed, are compelled to be present here. They are present at the not inconsiderable expenditure and expense of the Commission or the Committee, so we obviously have a responsibility in that regard as well. We need to weigh up all these things and we have all these legal representatives who obviously are present, I assume, one doesn't know what will happen, but one assumes because their clients are compelled to be present, so that is why of course we would like to get clarity on this question. If you know, the persons who are subpoenaed, if they are not going to be called to testify at the proceedings, there is no reason why they should be here under subpoena, you know a Section 19 notice would suffice of course. They can be voluntarily present if they want then, so we would obviously want to have clarity on that. If nobody is going to call them, then you know, we are not going to let the subpoena stand. That is our practical question at this stage. Is the end of the cross-examination, is that the very earliest point at which you can take a decision on this?

MS MTANGA: Yes, I imagine so Chairperson, by the end of the cross-examination we will be able to determine who we might need to give evidence and who we might not need.

CHAIRPERSON: Yes. 

ADV DE JAGER: Can we compel them to give evidence, if they don't want ...

MS MTANGA: In terms of Section 29, by the subpoenas being served on them, I would admit, yes.

ADV DE JAGER: In terms of Section 31?

MS MTANGA: Chairperson, Section 31 expects the Commission to notify the Attorney General, that has been done, to protect the evidence that they will be giving before this Committee, that has been done.

CHAIRPERSON: Yes.

MR VAN DER HEYDE: Mr Chairman, if I can just come into it at this point, it is also true that Section 31 also confirms that the person is compelled to testify. The testimony is subject to the various sections of Section 31(1) regarding protection of that evidence. The Commission had to consult with the Attorney General regarding the issue of the person incriminating himself and how this is to be placed on record, and we have to notify them of that. The usual legal rules apply in this instance.

VOORSITTER: Yes, the enforceability of his incriminating himself is the issue here. The being forced to testify goes together with the subpoena, but when he testifies, then we would have to take the procedural avenues to ensure that it is not unfair to compel the witness to testify. Is that correct?

MR VAN DER HEYDE: That is correct.

CHAIRPERSON: That is apparently the situation. But we have a practical problem, we do not want to disadvantage anyone in their cases, but we don't want to cause unnecessary trouble for people to be here if their testimony is not going to be used.

MS VAN DER WALT: Mr Chairman, if I may. I don't believe that facts are completely correct regarding, from the Evidence Leader. The subpoena for my client was issued before the pre-trial conference and not thereafter. During the pre-trial conference, it was specifically asked by Mr Prinsloo to obtain the documentation that indicates that Mr Mkhwanazi and various of the other people are implicated by Mr Mavuso. There is no such documentation, maybe I am not in possession of that documentation. If the lady could perhaps give me that documentation or show me where Mr Mkhwanazi is implicated, that would be helpful. This is my one point, because that is after all why he has to testify, not about other amnesty applications that have been heard, but about Mr Mavuso's application, is my argument correct?

CHAIRPERSON: Yes, of course, for the purposes of Section 19 notices, it would be if he is implicated, but if he is subpoenaed as a witness, it could be regarding an aspect of the application that he may have knowledge of. So there may be a difference of opinion here if you are subpoenaed as a witness, then you are not necessarily being implicated in the incident itself.

MS VAN DER WALT: But does he have to testify regarding the application?

CHAIRPERSON: Yes, it has to be relevant to the various differences here in front of the panel, nothing else. Now practically speaking, we have to accept it at face value that this decision can only be taken by the various parties, after the cross-examination and we would like to reach that point very quickly so that we can know who has to go and who can stay.

MS VAN DER WALT: And then a further aspect that I also mentioned this morning, regarding Mr Mkhwanazi's presence here, already in accordance with Section 29, he has been questioned regarding this same subject matter.

CHAIRPERSON: Yes, that was now within the context of an investigation under Section 29.

MS VAN DER WALT: A panel of the Commission and people who supported him.

CHAIRPERSON: Yes, it was a Section 29 investigation. That might have been, that is in another context, this is within the context of a specific application, specific amnesty application, so the two possibly do not overlap completely.

But these are aspects that we have to think of more when we get to them, when the person places his evidence in front of us. At this stage, we won't really know what the situation is because we can't just let everyone stay if it is not necessary to testify. But in any event, I mean at this stage, in view of what you have told us Ms Mtanga, we will then let the matter stand over, we will proceed with the cross-examination and then hopefully we will then be given an indication who specifically would be required, we would then very much like to release the others, who are not strictly going to be necessary for the purposes of the evidence that is going to be placed before us.

MS MTANGA: We thank you Chairperson.

CHAIRPERSON: All right. Mr Bizos, I think we are back at the point where we left off.

CROSS-EXAMINATION BY MR BIZOS: Yes, thank you Mr Chairman. Mr Mavuso, your counsel asked you if you knew Mr Mdu John Msibi and you said yes, you knew him, you went to rallies together.

MR MAVUSO: Yes, that is correct.

MR BIZOS: Was that a whole truth, did you only go to rallies with him, and is that where you first met him?

MR MAVUSO: We met at rallies, we met at rallies only.

MR BIZOS: How old were you and how old was he when you first met for the very first time at a rally?

MR MAVUSO: I wouldn't tell how old I was, but I was old enough.

MR BIZOS: You were adults, you were both adults when you first met?

MR MAVUSO: Yes, that is true.

MR BIZOS: But now this same gentleman gave evidence at your trial, did he not? I am referring Mr Chairman, to Bundle 1 towards the end, page 257. I want to read to you what Mr Msibi said at your trial which was not challenged by your counsel. 

MR PRINSLOO: I think it must be made clear Mr Chairman, that the counsel that is being referred to is the counsel here in his trial, and not at the hearing, otherwise there could be confusion.

CHAIRPERSON: Yes.

MR BIZOS: I think it is obvious, Mr Chairman.

MR PRINSLOO: It is not obvious.

CHAIRPERSON: Yes, in other words it is not yourself, Mr Prinsloo that is being referred to, it is somebody else?

MR PRINSLOO: Correct Mr Chairman.

CHAIRPERSON: Yes.

MR BIZOS: Yes. And Miss De Kock asked the following -

&#9;&#9;"... Mr Msibi, yesterday afternoon at twenty passed six, that day being the 11th of January 1995, a statement was taken down at the Pongola Police station and you made that statement, is that correct? Yes. I would like to know if the suspect in this matter, Emmanuel Nkosinathi Mavuso, whether you know him?"

&#9;His answer -

&#9;&#9;"... Yes, I do know him. Where do you know him from? From Paulpietersburg. Yes, how long have you know him? Since I was small. What do you say, from when? It is a very long time, since my junior school days."

&#9;Was that evidence given in your presence?

MR MAVUSO: I would like to ask a question there, which primary school are they referring to where I went to with him?

MR BIZOS: Well, you should perhaps have asked your counsel at your trial to ask him, what I am asking you is whether you knew one another from the days that he says you were at primary school together? He mentions a place Paulpietersburg. Was that evidence true or false?

MR MAVUSO: It was false.

MR BIZOS: Did you ask your counsel to challenge that evidence?

MR MAVUSO: Yes, I did.

MR BIZOS: Did he challenge it?

MR MAVUSO: The truth is in court, I had already denied everything, any knowledge. I can't remember very well, but I remember my lawyer challenging him about this evidence, and I think even if he can be called today, he can give another testimony that it wasn't true what he said in court.

MR BIZOS: Oh, I see, that is because you are in the same jail now, and you have had lots of opportunities to discuss matters?

MR PRINSLOO: Mr Chairman, is there any basis for that question which Mr Bizos is now putting to the witness, the applicant? Is it merely an argument?

CHAIRPERSON: Yes, perhaps it is in the form of a question.

MR BIZOS: Are you at the same jail with him?

MR MAVUSO: Yes, I am with him in jail, but we are not speaking to each other, because we quarrelled since the court case until now.

MR BIZOS: Do you travel together in the same vehicle to come to these hearings?

MR MAVUSO: Yes, we travel together.

MR BIZOS: And do you remain silent in the vehicle that brings you here?

MR MAVUSO: Yes, that is true.

MR BIZOS: He also gave other evidence against you, didn't he?

MR MAVUSO: Where?

MR BIZOS: At your trial?

MR MAVUSO: I wouldn't know for sure.

MR BIZOS: Well, well Mr Mavuso, did you speak to Mr Msibi about the fact that Mr Mkhwanazi, a member of the Security Police, was going to give evidence for you at your trial?

MR MAVUSO: No, I didn't. I didn't speak to him.

MR BIZOS: And that you told him how he, Msibi, being a policeman, I beg your pardon, that he, Mkhwanazi, being a policeman, would spoil the State's case against you by saying that the balaclava which you denied was yours, was put on your head during the investigation in order to explain the scientific evidence found, connecting you with that balaclava which was found near the place where the murder was committed, don't you recall all that?

MR MAVUSO: No, I don't remember telling him, I didn't tell him.

MR BIZOS: Yes. Would Mkhwanazi have had any reason to tell Msibi what he was going to do?

MR PRINSLOO: Mr Chairman, how is this witness expected to answer that question, what transpired between Mkhwanazi and Msibi? He wasn't present or is it being suggested that he was present?

CHAIRPERSON: Yes, Mr Bizos?

MR BIZOS: Mr Chairman, these are statements in furtherance of a conspiracy which we submit, will be shown to have existed at the time. There will be further evidence Mr Chairman, that this murder was supposed to be committed by Mr Msibi, but that because he was arrested, this applicant became the substitute murderer.

MR PRINSLOO: Mr Chairman, is it thus suggested with respect that this particular applicant was aware all along that there was a murder planned which was to be executed by Msibi and by chance he committed this, or what is the position? It is not clear, because there are no documentation supporting any such particular issue. If that is the position, then Mr Bizos ought to make that disclosure to the Committee?

CHAIRPERSON: Yes.

MR BIZOS: Mr Chairman, I can't be told how to cross-examine with respect, other than to be fair. I want to assure you that the statements that we are going to refer you to and that the evidence that Mr Msibi gave, and that when Mr Mkhwanazi gave the evidence, it would have been impossible for Mr Msibi to have known what Mr Mkhwanazi was going to say to the trial Court. The purpose of these questions is to find out who was it that told Mr Msibi what Mr Mkhwanazi's evidence was going to be. This is the purpose of the questions that I am asking.

CHAIRPERSON: Yes, proceed Mr Bizos.

MR BIZOS: Yes. Now, do you not recall that the Prosecutor in your trial, called Mr Msibi to say that he, Msibi, had been told by Mr Mkhwanazi what Mkhwanazi would say to the Court in order to get you off the charge of murder, do you recall that evidence?

MR MAVUSO: No, I don't remember, I would like you to remind me if you can.

MR BIZOS: Yes, well, let's read you the evidence of Mr Msibi. You were wide awake during the course of your trial, were you not?

MR PRINSLOO: Mr Chairman, that is an insult with respect. That is not a necessary remark, which ought to be made, he should have been awake.

CHAIRPERSON: Yes, what Section do you want to put to the witness Mr Bizos?

MR BIZOS: Page 258 Mr Chairman. Perhaps for the sake of completeness, we should read the whole, so that it is understood properly.

&#9;&#9;"... The Prosecutor then asked if Sergeant Mkhwanazi, the second defence witness ... Yes, I know him. From when do you know him? From 1993 in June. 

&#9;Are you with me Mr Chairman, at page 257 of the evidence, Bundle 1.

CHAIRPERSON: Yes, I've got that.

MR BIZOS:&#9;"... Do you know where Sergeant Mkhwanazi is, what work does he do? Yes. What does he do? He is a Police officer Officer. During November 1993, he was in Natalspruit, is that correct? Yes. Can you tell the court what happened? You received a telephone call? Yes, I received a telephone call from Mkhwanazi. Yes, what was the message? He said to me or he asked me whether I had heard the Nkosinathi Mavuso had been arrested. I asked him why he was arrested, he then said to me and explained and I asked him where he was arrested. I then asked him what happened further and he said that I have to come home and he will explain everything to me. Do I understand you correctly, he did not want to tell you over the phone what was wrong? Yes, he said that he could not tell me over the phone, because it is a secret. And then, what did you do? After two days, I then came here to Piet Retief. Yes, I then found Mkhwanazi at his house. That is here at Piet Retief? Yes, and thereafter he took me to Mr Ali Msibi, the Mayor of the Piet Retief residents. Is that the black residential area in Piet Retief? Yes. Is Mr Ali Msibi any family of yours? Yes. How is he a family member? He is my brother. What happened then? They explained to me that Emmanuel Mavuso had killed somebody in Pongola. Before we go any further, do you see Mr Ali Msibi in the court?

MR MAVUSO: Yes.

MR BIZOS: Would you point him out please.

MR MAVUSO: Yes.

MR BIZOS: The man sitting on the far right with the earphones on?

MR MAVUSO: Yes.

MR BIZOS: Did you know him for a long time when, before you were taken to his house?

MR MAVUSO: I have never been in his house.

MR BIZOS: You have never been? You did not know anything about him?

MR MAVUSO: No.

MR BIZOS: Why if Mr Msibi is telling the truth, why would he have been interested in the fact of your arrest?

MR MAVUSO: You mean Msibi?

MR BIZOS: Yes? Mr Ali Msibi, the man who is under guard at the back of the court? Why should he be interested to discuss anything about you with Mr Msibi?

MR MAVUSO: Who was discussing about me, was it Msibi?

MR BIZOS: Yes, and Mr Mkhwanazi and Mr Ali Msibi.

MR MAVUSO: Mr Ali Msibi and Mr Mkhwanazi, they are not connected with this incident that we are talking about, the killing of the deceased.

MR BIZOS: Well, let's have a look at what Mr Msibi said before the Court under oath. Could we turn to page 259.

ADV DE JAGER: Mr Bizos, we've got two Mr Msibi's.

MR BIZOS: I beg your pardon, Mr Mdu Msibi said, the witness said about the matter -

&#9;&#9;"... they, that is Ali Msibi and Mkhwanazi, they said that the person that I had to kill, is the one that he had killed."

&#9;If that evidence that was given in your presence, is true, what interest would Mr Mdu Msibi and Mr Mkhwanazi have had in your arrest?

ADV DE JAGER: You are quoting from page 259, line 16?

MR BIZOS: I didn't realise that there were lines, thank you, I will give the line numbers, from line 16 to line 20 Mr Chairman, I will read.

&#9;&#9;"Court:&#9;I am sorry, I am sorry."

&#9;I beg your pardon, I thought that you were asking for my forgiveness.

&#9;&#9;"Court:&#9;Who is speaking and what is he speaking of?

&#9;&#9;Mkhwanazi:&#9;It is Mkhwanazi that spoke.

&#9;&#9;Court:&#9;Mkhwanazi said that a person had to be killed because that person was a member of the ANC."

&#9;Now, if that evidence is correct, why would Mr Mkhwanazi and Mr Mdu Msibi be interested in your arrest?

MR MAVUSO: First of all, I would like you as you read the statement, to explain to me who said what to who, so that I follow because it has been a long time, I need to follow clearly. I wouldn't know, but if they are here, I think they can answer this.

MR BIZOS: Yes. I am asking you to answer on the basis of what they said under oath and please try and answer the question. What would the interest of Mr Mkhwanazi and Mr Mdu Msibi have been in relation to your arrest?

MR MAVUSO: I wouldn't know that, I think they can tell why they were interested.

MR BIZOS: Well, perhaps you can call them as witnesses to tell the Committee that you are telling the truth. You know, don't you, that Mr Mdu Msibi asked for amnesty before a Committee?

MR MAVUSO: I would like to ask how can I ask Mdu Msibi to come here and testify because he didn't even have any knowledge about my involvement in the killing of the deceased, besides he is your witness not mine, how can I call him to be my witness.

MR PRINSLOO: Sorry, to interpose, may it be made clear by Mr Bizos, is it being suggested that Mdu Msibi made an application for amnesty with regard to this particular matter?

MR BIZOS: No, no, obviously not Mr Chairman, before another Committee for murders that he had committed other than this one.

MR PRINSLOO: If that is so Mr Chairman, what is then the relevance, if it is for another murder? How does it become relevant to this particular issue?

MR BIZOS: The inference is obvious Mr Chairman, Mr Msibi said that he was supposed to commit this murder a few weeks before this applicant committed it, he said that he was promised a lot of money in order to do it, and that on that basis, his application for amnesty was refused. We will ask you to draw the inference once we have put all the evidence that has been given, and all the statements that have been made, that there is an overwhelming probability that if Mr Msibi was going to be paid for this murder, and became unavailable because of an arrest elsewhere, that the person who was well known to him, that was at primary school with him, you will hear of a certain telephone call of the witness being recommended by Mr Msibi to the persons that we are speaking about, it will become clear as a matter of irresistible inference that this man was asked to commit the murder by the same persons who had asked Msibi to commit it originally, who are not named in his application, and therefore the applicant has not made full disclosure and secondly, that he was promised money, he did receive some money according to his statements and his evidence, both in statements and in his application for amnesty, and that is the relevance of all this, Mr Chairman.

MR PRINSLOO: May I respond to that Mr Chairman, with respect, if Mr Bizos could indicate to the Committee in which statement it is stated that this applicant was promised money, that this applicant was ordered by the same people to kill the deceased, which Mr Bizos is now referring to as the persons who instructed Msibi, there is no such document in our possession. The argument Mr Bizos, may I be allowed to complete my submission, I respectfully submit Mr Chairman, that at this stage, there must be evidence and there must be a basis and this particular issue was canvassed at the pre-trial conference and we were not even given an answer to that, they said well, they were not compelled to and up to this moment, the applicant has been prejudiced, has had no such document where such an inference could be drawn from, apart from as I have already indicated to you in Chambers, Mr Chairman and the Committee, that by following this particular path, it is implicating other people who have not been informed of their rights to be present here and which deals with a matter which is totally separate from this matter. Mr Bizos is merely at this stage, already submitting to the Committee what inference the Committee ought to draw, that is not the time for it with respect Mr Chairman. This particular situation is for Mr Bizos to cross-examine this witness with regard to facts and not the issues which he perceives to be the irresistible inference which ought to be drawn. It is for argument at the end of the day, Mr Chairman.

CHAIRPERSON: Yes, well that is quite so. I thought Mr Bizos was trying to explain the relevance of a line of questioning. Of course the issue of monetary reward, of course, is a relevant consideration in the application, and I assume that that is the line that you are exploring?

MR BIZOS: Yes, that is one and the other is full-disclosure, Mr Chairman. May I respond more pertinently, although I submit that we have already indicated the reason why I said that the inference is going to be irresistible. Of course argument is to be at the end, but my learned friend invited me to justify the questions. The inference can only be drawn if the facts are put before the Court and if they are put to the applicant, Mr Chairman. I am busy doing that Mr Chairman, and if my learned friend is patient enough, he will hear more facts from which we will ask you to draw that inference at the end. May I continue with my cross-examination?

CHAIRPERSON: Yes, if you deal with the factual situation?

MR BIZOS: Yes, of course Mr Chairman.

ADV DE JAGER: Mr Bizos, just before you have been interrupted, you mentioned that the same persons who planned this, or instructed this one, also instructed Mdu?

MR BIZOS: Yes.

ADV DE JAGER: Just to make it clear to me, the witness, the applicant have mentioned people this morning who was not included in his original affidavit, are they the same persons you are now referring to or are they still different?

MR BIZOS: No, I am particularly referring to Mkhwanazi and Ali Msibi, Mr Chairman.

ADV DE JAGER: Thank you.

MR BIZOS: We will go over the ground of the differences in due course Mr Chairman, but whilst I am dealing with this document, I would like to finish what is said in this document, and then proceed to other statements and circumstances in order to - I don't remember precisely where I was Mr Chairman. "... they said ..."

CHAIRPERSON: Yes, that is right.

MR BIZOS:&#9;&#9;"... they said that the person whom I had to kill, has been the person that has been killed. I am sorry, who is speaking and what is he talking about? 

&#9;Mkhwanazi:&#9; 

It is Mkhwanazi that has spoken. What did he 

tell you. Mkhwanazi said that the person had

to be killed because he is a member of the 

ANC."

&#9;Mr Chairman, may I say that Mkhwanazi is sometimes spelt with an "M" and sometimes with an "N", but we are actually referring to the same person through out. Then I am starting again on line 26 Mr Chairman, on page 259.

"Ms De Kock:&#9;Did he tell you which person it

was? Yes, he did tell me that. Can you remember 

the name? I cannot really remember it, but he is 

Mike."

&#9;It will become clear during the course of the proceedings, that that was the deceased of which, by the name to which he was known locally Mr Chairman.

&#9;&#9;"... the discussion that you had with Sergeant Mkhwanazi, what did he tell you about the accused in front of the Court, Mavuso?

&#9;Now, did you ever speak to Mdu Msibi about what you had done and how you had committed this offence?

MR MAVUSO: No, I didn't speak to him.

MR BIZOS: But now listen to what Mr Mdu Msibi says. Mkhwanazi said to him, but before we do that, did you ever tell Mkhwanazi how you had committed this offence?

MR MAVUSO: No, I didn't tell Mkhwanazi because I knew he was a Policeman and I knew that if I told him the truth, he was going to arrest me.

MR BIZOS: Well, we will come to that, but anyway you never told him the circumstances of the commission of the murder that you had committed? Let's hear what Mdu says about you and how you committed the offence and if you didn't tell him and Mkhwanazi didn't tell him, I am going to ask you who might have told him. 

&#9;&#9;"... he told me that they ..."

&#9;that they did not get the gun in the possession - I am sorry, I must read in Afrikaans -

&#9;&#9;"... he told me that they could not find the weapon in the possession of the accused and that the jacket was also not in the accused's possession, and also not the balaclava, that was also not in the possession of the accused. Did he tell you where these were found? Yes, he told me it was found in the bush by Police dogs. Yes, and that the accused was found in the street and that he had nothing, he had nothing with him. Yes? And that they were afraid to get, to go and get the accused. Who is this 'them' that Mkhwanazi is referring to? He means Mkhwanazi was afraid to go and find the accused because there were people there that saw the accused and those people would have seen that he, a Police officer Officer, fetches the accused there."

&#9;Now, do you agree that there are substantial elements in this evidence which correspond with what actually happened?

MR MAVUSO: I don't quite understand, I would like you to clarify this question for me.

MR BIZOS: Well, then I am afraid that we must do it the long way.

MR PRINSLOO: Mr Chairman, before it is put a long way, may I just intervene at this stage. Mr Bizos also ought to inform the Committee that Mr Mkhwanazi was involved in the investigation of this case, shortly after the event, so as to where he acquired the knowledge, it could also be from that source, so that is an issue which in fairness, which ought to be brought to the attention of the applicant as well. Thank you Mr Chairman.

MR BIZOS: Well, I was going to deal with the interview with the witness, with Mr Mkhwanazi, Mr Chairman, and I am indebted to my learned friend for raising it. What you told Mkhwanazi was that you were not involved at all, isn't that what you have told Mkhwanazi, and you have already told us that because if you told Mkhwanazi the truth, he would have arrested you? He would have given evidence against you, but let's come back to the basics. Did you, was in fact no gun found in your possession?

MR MAVUSO: Yes, it is true.

MR BIZOS: Was no jacket, no balaclava found in your possession?

MR MAVUSO: Yes, that is correct.

MR BIZOS: Is it correct that you, after you committed this murder, you ran into the bush, took them off and hid them in the bush?

MR MAVUSO: Yes, that is true.

MR BIZOS: Is it correct that you didn't get far away when you were pointed out by people on the road, as the person that they said committed the murder?

MR MAVUSO: I ran quite a distance from. The incident to the bush where I hid the clothes and the balaclava, and back to the street, it is far.

MR BIZOS: Well, I don't know what near and what far is, but is it true, is it true that you were identified as soon as you came onto the road?

MR MAVUSO: Yes, that is true.

MR BIZOS: Did you plan your get away from the place where you committed the murder, before you committed it?

MR MAVUSO: Yes, we planned, but then we were in a rush. It wasn't well planned because we didn't even plan as to where I was going to kill the deceased.

MR BIZOS: Well, I am going to suggest to you on the probabilities and also on further information that will be placed before the Committee, that the person that was supposed to pick you up and spirit you away, was Mkhwanazi himself.

MR MAVUSO: That is not true.

MR BIZOS: Who was going to pick you up, surely you would not have left, I am suggesting to you that it may have been Mkhwanazi, you tell us who was it arranged, should pick you up?

MR MAVUSO: Velaphi was supposed to pick me up.

MR BIZOS: Who is that?

MR MAVUSO: Velaphi Khumalo.

MR BIZOS: Why should Msibi have said -

&#9;&#9;"... there were people that saw the accused and they would have seen that he was fetched by a Police officer Officer there?"

&#9;Now, if Mkhwanazi was not supposed to pick you up, who was it that was afraid according to the statements of Msibi, Mkhwanazi said that he, the policeman, the police officer would have been seen picking up the murderer? You can't explain?

MR MAVUSO: Velaphi was the one who was going to pick me up, Mkhwanazi was never involved with this.

MR BIZOS: Well, did you ever ask Velaphi why he never turned up?

MR MAVUSO: It was difficult for me to ask him that question because I was arrested immediately after the incident, I was concentrating on the case afterwards. I didn't go back because I knew that we were going to quarrel, Velaphi and myself.

MR BIZOS: I see. 

&#9;&#9;"... is this after the murder? Yes, after the murder. And then, what did Mkhwanazi say then? He said that he comes to the court, that he came to testify here at the court, that the Police forced the accused to put on the balaclava and the jacket and he will testify to that, to the fact that he would like to kill the State's case."

&#9;Now, let's just take it bit by bit. At your trial, was the correct balaclava produced?

MR MAVUSO: Yes, it was.

MR BIZOS: Was it part of your defence in order to try and defeat the ends of justice, and in order to get off well knowing that you were guilty that you accused two senior Police officers of putting these things on you, in order to convict an innocent man, that was your defence, correct?

MR MAVUSO: Yes, that is correct and they did that.

MR BIZOS: You actually did identify a senior Police officer as having done that?

MR MAVUSO: Yes, that is correct.

MR PRINSLOO: Mr Chairman, with respect, as far as the translation is concerned, which was put to the witness, I think there is some misunderstanding in what was said as to whether he deliberately organised this evidence, being false evidence, that the balaclava was put on his head which was not true. I don't think that is how he understood it and the jacket, could that be retranslated and be put to the witness again please.

CHAIRPERSON: Yes, perhaps just to, yes, to put it beyond dispute please, Mr Bizos.

MR BIZOS: Shall I repeat the question. Yes. It was the correct balaclava that was found and the correct jacket?

MR MAVUSO: Yes, that is correct.

MR BIZOS: And for the sake of completeness, the correct gun?

MR MAVUSO: Yes.

MR BIZOS: Now, you knew that expert evidence was given that your hairs were intertwined in the balaclava?

MR MAVUSO: Yes, I do remember that.

MR BIZOS: And you contended that your hairs must have got into the balaclava because a senior Police officer deliberately and in order to possibly convict an innocent man, took the balaclava and put it on you by force?

MR MAVUSO: Yes, it is true and he actually did that.

MR BIZOS: What force did he use?

MR MAVUSO: He forced me to put the balaclava and the jacket on.

MR BIZOS: What force did he use?

MR MAVUSO: He scared me and he threatened to beat me if I refused to put the balaclava and the jacket on.

MR BIZOS: How was he going to beat you up?

MR MAVUSO: As they do when they arrest people.

MR BIZOS: No, but there are different ways in which they do it, unhappily from time to time. What were you threatened with?

MR MAVUSO: He just scared me.

MR BIZOS: By doing what?

MR MAVUSO: He said I must put the jacket on and the balaclava.

MR BIZOS: Why didn't you say "thank you, no, I don't want to, they are not mine?"

MR MAVUSO: He was going to beat me.

MR BIZOS: How do you know that?

MR MAVUSO: What?

MR BIZOS: That he was going to beat you?

MR MAVUSO: The way he was conducting himself, he wanted to beat me.

MR BIZOS: How was he conducting himself, what made you think that he wanted to beat you?

MR MAVUSO: He just scared me.

MR BIZOS: He?

INTERPRETER: He scared me.

MR BIZOS: He scared you because of his obviously aggressive behaviour?

MR MAVUSO: Yes.

MR BIZOS: Did he do this in the presence of Mkhwanazi?

MR MAVUSO: Yes, he was present.

MR BIZOS: I see. Now, Mr Mkhwanazi gave evidence in your favour at your trial.

MR MAVUSO: I don't remember that. What I remember is that Mkhwanazi was called by my lawyer or Attorney to come and give evidence as to whether the senior Policemen forced me to put the balaclava on and the jacket.

MR BIZOS: Yes, and he went into the witness box and helped you by giving that evidence?

MR MAVUSO: Yes, as I have explained.

MR BIZOS: Yes. What do you think prompted Mr Mkhwanazi to come and give that evidence, even if it were true which was denied by the Police officer? What prompted a Sergeant in the Security Police to come and betray one of his senior colleagues by deposing to such irregular behaviour?

MR MAVUSO: If I remember very well, all he said was the truth and I am here today to tell the truth. He was telling the truth as to what happened, this is what they did.

MR BIZOS: Yes, well of course it didn't help you, his evidence, did it?

MR MAVUSO: No, it didn't.

MR BIZOS: Yes, because the expert evidence was that there were so many hairs, so deeply intertwined in the balaclava that they could not possibly have gotten there even if you and Mkhwanazi were telling the truth? Not so?

MR MAVUSO: Even though I cannot remember very well, because it has been a very long time, but if I do remember, I think the Doctor didn't mention anything about too many hairs, he just talked about hair.

MR BIZOS: Yes, well, we will produce the record if need be. Let's just go on -

&#9;&#9;"Ms De Kock:&#9;And what did Mkhwanazi then say?"

&#9;This is on line 18 of the same page, 260 Mr Chairman.

&#9;&#9;"... He said that he is coming here to the court to testify that the Police has forced the accused to put on the balaclava and the jacket and he will testify so that he can destroy the State's case. He then told me that he is coming to the court to testify on behalf of Emmanuel Mavuso. Do you know anything further of what was, what happened at the Police station, what Mkhwanazi told you? Yes, he said to me that when the Police were busy with the interrogation of the accused, the Police then left the office and it was now in the office of Mkhwanazi. It was Mkhwanazi and the accused in the office and Mkhwanazi then told the accused that he should spit on his hands and wipe his hands, wring his hands."&#9;

&#9;Now, were you and Mkhwanazi in the same room in the absence of other Police officers?

MR MAVUSO: First of all, it wasn't Mr Mkhwanazi's office and they didn't leave me with Mkhwanazi. They were coming in and out, but there was never a time when I was left just with Mkhwanazi and myself. Thirdly I don't remember anything about spitting on my hands, I know that on my own I was trained to know that after you have fired a gunshot, you must do that.

MR BIZOS: Who gave you that training?

MR MAVUSO: My brother from Lindelani in Durban.

MR BIZOS: What is his name?

MR MAVUSO: Bekhi Freeman Mavuso and he is now late.

MR BIZOS: Oh, yes. And why should your brother have given you this useful information to an assassin?

MR MAVUSO: He was the one who was training me in handling guns and firing and to target or to hit on your tar get.

MR BIZOS: But you see, to be taught how to get rid of gunpowder off your hand with which you have fired, is only necessary if you are going, if you are in the business of assassinating people?

MR MAVUSO: He was a murderer and this was my first time killing someone, he told me because he was a murderer.

MR BIZOS: What sort of people did he murder?

MR MAVUSO: I am not saying that he was a murderer, but I am just drawing this inference because you said this information is only possessed by people who know when they are involved in killing people.

MR BIZOS: How could you so easily have accused your late brother of being a murderer without having more information than you have already given us?

MR MAVUSO: I am trying to answer your question, because you just put to me that this information is being possessed by people who are involved in the business of killing people. I am saying so because you said so, I am not saying that he was actually killing people, but he may have been a murderer, but I don't know.

MR BIZOS: The question that I asked you was that that information would be only useful to a murderer and asked you who gave it to you and you said my brother who was a murderer. It is what you said, it is not what I said that is important?

MR PRINSLOO: Mr Chairman, the witness hasn't responded to that question.

MR BIZOS: I have waited long enough.

MR PRINSLOO: Well, there was hardly any wait, I have hardly recorded it Mr Chairman, with respect.

CHAIRPERSON: Yes, just ask the witness if he has got a response to the last point that Mr Bizos has made.

MR MAVUSO: I didn't quite understand but what I would like to clarify is that I was trained by my brother, as to how to handle a gun and how to fire a gun and to clean, whatever handling of guns.

MR BIZOS: You told us he taught you that you should clean your hand after you fire?

MR MAVUSO: Yes, he told me when he was training me not after I have murdered, but he told me when he was training me.

MR BIZOS: I don't think I will carry the point any further, it is quite clear what the position is. Now tell me this, you were arrested before you had any opportunity to wash your hand or to wipe it?

MR MAVUSO: Yes, I was arrested after I had an opportunity to wipe my hands.

CHAIRPERSON: Is the answer after, he had an opportunity ...

INTERPRETER: After.

CHAIRPERSON: After he had ...

INTERPRETER: He was arrested after he had an opportunity to wipe his hands.

MR BIZOS: At what stage did you wipe your hands?

MR MAVUSO: When I was coming from the bush towards the road, where I was arrested.

MR BIZOS: If Msibi is speaking the truth, there was therefore no need for you to heed any advice that Mkhwanazi might have given you?

MR MAVUSO: Yes, Mkhwanazi didn't tell me to wipe my hands.

MR BIZOS: Then Mr Msibi went further in your trial -

&#9;&#9;"... do you know anything further of the planning to kill this ANC member in Pongola? Yes. What do you know of that? They have also approached me and have asked me that I should kill him. Yes, but you are talking of them, who? Sorry, Your Honour, it was Mkhwanazi and Ali. I didn't know that person, I didn't know that person. Did you agree to do it or did you not want to do it? Yes, I did agree, but later, when I wanted to go to Jo'burg for the court there, I got the message that that person is dead. In the meantime, after the arrest of Emmanuel Mavuso, were you in touch with him? Yes, I was. Where were you in touch with him? At Piet Retief. Can you tell the Court whether you are friends with the accused in this case, Mr Emmanuel Mavuso? Yes. Are you still friends? Yes."

&#9;Now, what do you say to that evidence?

MR MAVUSO: It is not true. Yes, I knew Msibi, there were places where we will meet like rallies, but this is not true.

MR BIZOS: Now, let us just get a couple of other facts on the record and ask you to try and explain them. Mr Mkhwanazi gave evidence on the 12th of January 1995? Mr Mdu John Msibi made a statement to a senior Officer which is numbered A45, on page 14 of Bundle 2 the day before Mr Mkhwanazi gave evidence to help you. 

ADV DE JAGER: On the 11th?

MR BIZOS: On the 11th. He said the following ...

MR PRINSLOO: Sorry Mr Chairman, may I just get the page number, I think I missed it.

MR BIZOS: 14.

MR PRINSLOO: Thank you Mr Chairman.

MR BIZOS: That is the typed version.

CHAIRPERSON: Yes, it is in Bundle 2 Mr Prinsloo.

MR PRINSLOO: Thank you Mr Chairman.

MR BIZOS: And the hand printed version is on pages 16 to 18. He sets out in the first paragraph who he is and that he is serving a sentence at the Piet Retief jail.

MR PRINSLOO: Mr Chairman, before Mr Bizos proceeds along this line, is Mr Bizos going to call Mr Msibi as a witness, because I know that they have consulted with him, because this obviously, if he doesn't give evidence, he is referring to a statement made by a person, what is the value of that version, he merely puts it to him?

MR BIZOS: We will argue that in due course Mr Chairman. counsel is correct that we had a consultation with Mr Msibi, and if need be, we will give evidence as to what transpired there, from which certain inferences may be drawn. But I submit that I am entitled to read the statement to this witness and ask him a simple question. How did Msibi know on the 11th, what Mkhwanazi would say on the 12th? You can think about it, whilst I am reading the statement to you.

CHAIRPERSON: Yes, will you go ahead.

MR BIZOS: By the way, Mr Msibi unlike you, pleaded guilty to two murders and he frankly admitted at this trial and in this statements, that he was a paid assassin and that is why he was refused amnesty by the Amnesty Committee, do you know that?

MR MAVUSO: I am hearing this for the first time. Ever since the trial, we are not speaking to each other, we are not at good terms up until today.

MR BIZOS: Didn't you counsel in consultation possibly tell you what Mr Msibi was doing at the previous hearing, aborted hearing and why he was still in jail after he had applied for amnesty?

MR PRINSLOO: Mr Chairman, is that fair? For one counsel to put to a witness what a witness tells his counsel, or what he didn't tell him? I don't think that is fair, on a fair basis Mr Chairman.

MR BIZOS: ... in relation to privileged matters, obviously Mr Chairman, relating to his defence, but on matters of general interest as to what a person that says that he knows, is doing there under guard come together from the jail, that is all I am really asking. Okay, I am not going to press it.

CHAIRPERSON: Yes, perhaps not Mr Bizos.

MR BIZOS: Thank you Chair. I can understand the sensitivity.

&#9;&#9;"...Emmanuel Nkosinathi Mavuso is well know to me. He is a personal friend of mine and we grew up together. Sergeant Mkhwanazi who worked the (indistinct) at Piet Retief, was also well known to me. Sergeant Mkhwanazi has given a command that I had to kill the two ANC leaders in the case that I am appearing for now, the case Piet Retief MR74/06/93. I have already explained Sergeant Mkhwanazi's involvement in the incident to the South African Police by means of a sworn affidavit. During November 1993, I was at Natalspruit where my home was. One evening, I received a telephone call from Sergeant Mkhwanazi who had informed me that Mavuso has killed an ANC leader in Pongola and that Mavuso was arrested. Sergeant Mkhwanazi requested me to come to Piet Retief, so that he could discuss this incident with me. Two days after the call, I went to Sergeant Mkhwanazi in Piet Retief. I visited him at his home, we then went to Ali Msibi's home, he is the Mayor at Piet Retief. Sergeant Mkhwanazi said that the weapon with which the murder was conducted, as well as Mavuso's balaclava plus his jacket were found by Police dogs in the bushes. Sergeant Mkhwanazi has said that the stated property was not found in the possession of Mavuso. Sergeant Mkhwanazi then said that he would help Mavuso to testify in court that Police forced Mavuso to put on the balaclava and the jacket. Mkhwanazi said that he would arrange to personally take Mavuso from Pongola after the murder, but that then he was arrested. Mkhwanazi has then said that he would after Mavuso's arrest, that he had spoken to him after his arrest at the Pongola Police station and that he told him to clean his hands so that the smell of the gun could not be found on his hands. That is all I know of the incident."

&#9;Then he signed it and take an oath that he spoke the truth. Can you explain, if you didn't speak to Msibi, how he, Msibi knew what Mkhwanazi would say the following day?

ADV DE JAGER: Mr Bizos, I've got a little problem with this, because Msibi says that Mkhwanazi told him all this?

MR BIZOS: Yes.

ADV DE JAGER: And that was the day before Mkhwanazi gave evidence? Yes, so in the past Mkhwanazi told him that he is going to say this and that and the following?

MR BIZOS: Perhaps the question was, I wasn't concentrating when I put the question. How would Msibi have known the day before Mkhwanazi gave evidence, what he, Mkhwanazi, was going to say if Mkhwanazi had not already told him? I think that that makes it clearer Mr Chairman.

CHAIRPERSON: Yes.

MR BIZOS: Have you any explanation for this?

MR MAVUSO: First of all, I don't know whether I am allowed to refer you as Bizos, because I don't know if Bizos is a surname or a name.

MR BIZOS: It is a surname, you can refer to me by my name. I have no problems with it.

MR MAVUSO: Thank you. I think we are here to tell the truth so that we reconcile, we tell the people we have harassed and tortured in the past, the victims, that is what I have been here for.

MR BIZOS: There is another reason why we are here. Just read up here what does it say? Just read it?

MR MAVUSO: I would like you to read and the Interpreter interprets that for me what it means.

MR PRINSLOO: Mr Chairman, hasn't the witness completed his reply for Mr Bizos.

MR BIZOS: Truth, the road to reconciliation. Truth.

MR PRINSLOO: Mr Chairman, I think Mr Bizos put this question about what is on the board there, or on the banner before the witness completed his reply to what Mr Bizos put to him. He was still busy talking.

ADV DE JAGER: There is still arguing whether he should call you Bizos or George?

MR BIZOS: I have no objection to either name, Mr Chairman.

CHAIRPERSON: Yes. Mr Mavuso, before Adv Bizos referred you to the banner behind us, was there anything else that you wanted to add or had you already said what you wanted to say at that stage?

MR MAVUSO: I was actually asking a question, I wanted an explanation so that I can answer the questions. My view is that we are here because we are here to tell the truth and so that we reconcile. But now he is telling me about the court. I don't know about that court, I don't know about people receiving statements today and get another evidence tomorrow, which corresponds with what they have received the previous day. That is why I don't think Mr Bizos is trying to build.

CHAIRPERSON: Yes, Mr Bizos?

MR BIZOS: Have you finished?

MR MAVUSO: I think I have answered your question.

MR BIZOS: Yes, well I will give you another opportunity to possibly answer. Can you think where Mr Mdu Msibi came to learn what Mr Mkhwanazi was going to say the next day, unless either you and or Mkhwanazi told him?

MR MAVUSO: I will repeat that again, I don't know. I don't know how he came to know about what Mkhwanazi was going to say the next day, I don't know that, I was in prison. After I was arrested and from the court proceedings, we never spoke to each other.

MR BIZOS: Yes, you see the reason why I am asking you all these questions and I have many more to ask Mr Mavuso, is because we are going to submit to the Court that you are actually protecting the real inciters of the murder, Mr Mkhwanazi and the gentleman sitting at the back, Mr Ali Msibi. This is why I am asking you all these questions. Do you want to make any comment about it?

MR MAVUSO: It is a terrible mistake, I am not trying to protect them. If they were involved in this incident, I will mention their names, but I cannot mention their names if they are not involved. I am also having a question for Mr Bizos, who is this other Mavuso you said you were going to ask?

MR BIZOS: Yes, of course - do you know that you and Mr Mkhwanazi, you now have Mr Prinsloo as your Advocate and not very long, Mr Mkhwanazi had Mr Prinsloo as his Advocate, did you know that?

MR MAVUSO: I am hearing this for the first time, I didn't know this.

MR BIZOS: Did you know that the present Advocate of Mr Mkhwanazi is the wife of your Advocate?

MS VAN DER WALT: Is that at all relevant, Chairperson, or is Mr Bizos trying to point to some kind of irregularity here? Mr Mkhwanazi has been my client for years, not only today. I just want to have clarity why this personal question with regard to counsel. I don't think it is relevant, except if Mr Bizos can indicate that there is some kind of irregularity involved, but then he should bring hard facts.

MR PRINSLOO: The other aspect Chair, what Mr Bizos is saying now is not correct. In Chambers I told you this morning that I with my colleague here, my wife, has appeared in the Section 29 case where we have covered a range of issues involving Mr Mkhwanazi. I am not his Advocate as such. If there is a problem for me being involved here, for Mr Bizos, then we can take it up in an adjournment. Thank you Mr Chairperson.

CHAIRPERSON: Yes, Mr Bizos?

MR BIZOS: Do I understand my learned friend, Mr Prinsloo, to say that he only acted for Mr Mkhwanazi in the Section 29 application, Mr Chairman?

CHAIRPERSON: Yes, that seems to be the case, jointly with Ms Van der Walt.

MR PRINSLOO: As far as this case is concerned, it is the first. While Mr Mkhwanazi was accused with other people, a case that has been withdrawn, my colleague has acted for Mkhwanazi.

CHAIRPERSON: Well, that seems to be the position.

MR BIZOS: Well, Mr Chairman, it is with regret that I must inform you that a request for further particulars on behalf of Mr Mkhwanazi on various serious charges, was signed by Mr Prinsloo on the 27th of January 1997, you can have a look at the document if you like, for the murder Mr Chairman, inter alia of the deceased in this case.

CHAIRPERSON: On whose behalf was that request?

MR BIZOS: The request was for an accused with regard Prinsloo on behalf of the accused 1, Mzimkosi Qina Mkhwanazi, accused 1.

MR PRINSLOO: Chairperson, I have signed the application, not that I was his Advocate. My colleague appeared for Mkhwanazi, I did not appear for him. I think I have signed it in the absence of my colleague. The case served before, I can't remember him, in Piet Retief, it will be on record. My colleague has appeared here, I can get his name just now, Judge Weyers.

MR BIZOS: Mr Chairman, we will seek to put these documents in, but it does seem ... May I finish, then I will deal with the objections Mr Chairman.

MS VAN DER WALT: You have not dealt with my problem.

INTERPRETER: The Chair said that he is dealing with this.

MS VAN DER WALT: Can we just adjourn, because I would like to know if there are any problems. We would like then to get advice from our client.

MR BIZOS: Mr Chairman, I would like to put the relevant facts before, because there may be, I want to put the relevant documents before the Court, in order to show what the factual position was in accordance with official documents which have come to our possession, and then we can argue as to what problems may arise as a result of these, the contents of these documents Mr Chairman. May I hand in the application for further particulars on behalf of Mr Mkhwanazi, signed by Mr Prinsloo, Mr Chairman.

MR PRINSLOO: Mr Chairman, what is the relevance of this document being handed in, I haven't had sight of it, is it aimed against me, on what basis is this being handed in?

MR BIZOS: It is only on the basis to prove Mr Chairman, that a person accused of the murder of the husband and father of our clients, acting for this applicant, was also the counsel for a co-conspirator whom this person, we will submit is protecting. They can decide for themselves what they want to do and what their clients want to do. I consider this relevant facts in relation to the fairness of the proceedings and the manner in which we conduct ourselves as legal representatives. They can make whatever submissions they want. I merely want to hand in these documents now, they can do whatever they please, but I may have certain submissions to make at the end of the case Mr Chairman, on the credibility of this witness and whether he could be reasonably expected to implicate his counsel's other client, Mr Chairman.

CHAIRPERSON: Yes.

MR PRINSLOO: Mr Chairman, may we be afforded the opportunity to inspect those documents before it is handed up?

CHAIRPERSON: Yes, of course. Yes, I will definitely allow you to do that Mr Prinsloo. Is there any real dispute in regard to the factual situation around the representation of people and so on, I mean do we have to get into all the documentation? Mr Prinsloo has indicated the circumstances under which he had signed the request for further particulars. Ms Van der Walt is representing Mr Mkhwanazi, is there anything else, is there a real dispute?

MR BIZOS: There is another document Mr Chairman, which I submit throw some light on the latest explanation Mr Chairman, which I want to hand in.

CHAIRPERSON: Yes, well, won't you deal with that and let's see if there is any dispute really about any of this. I mean, I am not sure what the relevance of this is, to be quite honest with you. Let's just see if the factual situation is common cause.

MR BIZOS: Mr Chairman, Mr Chairman, on the 30th of May 1994, Mr Mkhwanazi was asked to make a statement in relation to a case which is described on the document and on page 2 of that document the following appears:

&#9;&#9;"Question, what is your choice, do you want to make a statement or do you only want to answer questions or do you want to say nothing? Answer, I will make a statement in the presence of my counsel, Mr Prinsloo, his telephone number is 0157 X (I don't know what that stands for, presumably extension) 3810, Mr Chairman."

&#9;Now Mr Chairman, let me make a submission so that my learned friends can deal with it. The documents make it clear Mr Chairman, that we are submitting that the witness is protecting Mr Mkhwanazi and Mr Msibi, Mr Ali Msibi. The witness challenges us whether we are going to call Mr Mdu Msibi to give evidence. Let me at the outset say that we had the most unsatisfactory consultation with Mr Mdu Msibi where he for all practical purposes purported to deny much of what he said in his affidavits. It will be our case that he spoke the truth when he spoke the first time in open court, in his own trial, in his application for amnesty, but that he has changed his mind. We believe that that change of mind came about as a result of their being in the same prison, travelling together to the application for amnesty and the applicant tell us that he was never told that his counsel and his spouse were counsel for Mr Mkhwanazi. It is not for me to make any submissions as to what their position is, they must decide for themselves and I do not know that it is for the Committee to rule what their position is or ought to be. I only want to submit that questions arise as to whether this ought to be done or not. I don't want to express any further view on the matter Mr Chairman. I may say finally, although this is a matter in which there is no onus, we will submit that the Committee is obliged in order to find out the truth, to enquire into statements that have been solemnly made before the Courts, and in sworn affidavits, as to how these changes have come about. We will submit that it isn't for us to call Mr Msibi or Mr Mkhwanazi. If the applicant wants to satisfy you that he has made a full disclosure, he will have to decide for himself whether Mr Mkhwanazi and Mr Mdu Msibi and Mr Ali Msibi, but I understand that he is represented in any way by someone else, should be called. That is all I want to say Mr Chairman.

MR PRINSLOO: Mr Chairman, I would like to place it on record that at no stage, did I consult with Mr Mkhwanazi with regard to the charge against him as indicated by Mr Bizos, that I have made clear. My colleague, Adv Van der Walt, appeared on behalf of Mkhwanazi through out. It is correct, I signed the request for further particulars. On the document which was handed in, purporting to be a statement by Mkhwanazi, on which he declined to make a statement, my name is mentioned. It appears that this statement was taken elsewhere, in Empangeni or somewhere, I was never present at that stage, during that consultation, that particular issue and it is a Piet Retief case, but - and the trial never started against Mkhwanazi, Msibi and Nlangamandla. They appeared in the Circuit Court in Piet Retief and the charges were withdrawn against all three of them at that stage. No trial ever commenced. There was a request for further particulars and that is where it ended, Mr Chairman, there was no trial whatsoever. If the Committee is of the view that because the fact that I signed the request for further particulars, that my name is reflected on the statement, as was already indicated by my colleague, that through out she was always the counsel for Mkhwanazi and if Mr Bizos wants to suggest that there is any link and that my colleague will not conduct herself properly on behalf of that client, and that I will not conduct myself properly on behalf of Mr Mavuso or any suggestion of that nature, then I think at this stage Mr Chairman, in view of what Mr Bizos raised, I ought to discuss this with my client, Mr Mavuso and then he can give me instructions as to what I ought to do or not. Secondly Mr Chairman, if the Committee is of the view that in the circumstances, in the view of the fact that I told the Committee this morning as to the Section 29 proceedings where I was present Mr Chairman, and I assisted my colleague, Mrs Van der Walt in those proceedings, if that has any bearing on this matter, or on the evidence, there is no conflict between the version of Mr Mkhwanazi and that of Mr Mavuso and I will ask the Committee to rule upon that. What Mr Bizos wants the Committee to read into this, I don't know but if there is any suggestion on his part, in fairness to the applicant, then I have played open cards as far as this is concerned, then I must take instructions and be ordered by the Committee what to do. Thank you Mr Chairman.

CHAIRPERSON: Yes.

MS VAN DER WALT: Can I just come in here? I would just like to mention the following, according to the investigation under Section 29 and of which I have knowledge, there is no conflict between the applicant, Mr Mavuso and Mr Mkhwanazi and therefore there was no reason why I cannot further represent Mr Mkhwanazi whom I have been representing all this time.

CHAIRPERSON: Yes, we have come to the end of the day in the meantime. We will consider all of these issues that were raised, as I have indicated, it is not immediately apparent what the significance of all this is in regard to the proceedings, but we will certainly look at it if there is anything to be considered in that regard. In the meantime, we will adjourn the proceedings until tomorrow and we will reconvene at this venue at half past nine. We are adjourned.

COMMITTEE ADJOURNS

