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

&#9;AMNESTY HEARING

DATE:&#9;21 OCTOBER 1998

NAME:&#9;M R NDLOVU

APPLICATION NO: AM1632/96

DAY :&#9;6

______________________________________________________CHAIRPERSON: Good morning everybody. Today we have two applications on the roll and I believe I will be starting with the application of Mr M.R. Ndlovu. Before we start with this application, I'd just like to introduce the panel to you. On my right is Mr Jonas Sibanyoni who is an attorney from Pretoria, member of the Amnesty Committee. On my left is Mr Ilan Lax who is also an attorney but from Pietermartizburg and a member of the Amnesty Committee and I am Selwyn Miller, a Judge from the Eastern Cape and attached to the Transkei Division of the High Court. I'd like the legal representatives please to place themselves on record.

MR DE KLERK: Thank you Mr Chairman, my name is Lourens de Klerk, I appear on behalf of the applicant, an attorney Lourens de Klerk Attorneys in Durban.

ADV MPSHE: Thank you Mr Chairman, Members of the Committee, J. Mpshe for the Amnesty Committee, I will be appearing for the victims who unfortunately could not be traced and there is only one victim here, the next of kin, the mother to the deceased, Mrs Buyaleni Joanna Ngobo. She could not be found anywhere according to the record.

CHAIRPERSON: Yes thank you, but attempts were made to trace her?

ADV MPSHE: Attempts were made Mr Chairman, I even have with me the 19/4 which could not be served.

CHAIRPERSON: Mr de Klerk?

MR DE KLERK: Thank you. I call the applicant to testify, I think he may just be sworn in.

CHAIRPERSON: Thank you. Mr Ndlovu do you have any objection to taking the oath?

MR NDLOVU: Before I start I would like to apologise to the members of the family...[intervention]

CHAIRPERSON: Sorry Mr Ndlovu, we are not getting any translation coming through the mikes, the earphones.

I might just say to people in the gallery that these proceedings will be translated into English and Zulu and to benefit from the translation you need one of these sets. Yes, it sounds better now. 

&#9;Mr Ndlovu do you wish to take the oath or do you wish to make an affirmation?

M. R. NDLOVU: (sworn states)

CHAIRPERSON: Thank you Mr Ndlovu. Mr de Klerk?

EXAMINATION BY MR DE KLERK: Thank you Mr Chairman. 

&#9;Mr Ndlovu, will you briefly explain to the Commission how you got involved in politics?

MR NDLOVU: I would like to give thanks for the opportunity granted to me as well as the Chair and the Committee. Before I get to this issue, I would like to say a few words to the members of the family who lost their beloved because of the incident I was involved in. I would like to apologise for what happened during the conflicts in Pietermaritzburg. I pass my sincerest apologies even though that may not help them because they have already lost their loved ones.&#9;I would like the Committee to help me in conveying my apologies to them. 

&#9;I first got involved in politics in 1987 when I resided at Pietermaritzburg at Mpumuza area. That is where I joined the IFP. We would attend meetings in the area.

CHAIRPERSON: Sorry, Mr Ndlovu, sorry to interrupt you. Whatever you're saying is being translated simultaneously by the translators and it's very difficult when you're speaking fast for them to keep up with you. So if you could just speak a little bit slower so you could make their task easier. Thank you.

MR NDLOVU: Yes. Thank you.

MR LAX: Did you say you were from the Mpumuza area?

MR NDLOVU: Yes the Mpumuza area.

CHAIRPERSON: &#9;Yes, you may continue.

MR NDLOVU: I joined the IFP in 1987, January 6th. I resided at the Mpumuza location at Pietermartizburg, that is where I was born.

MR NDLOVU: There was a time when people joined the IFP during 1987 in the area and I was one of those people who joined the IFP because my family were also members of the IFP and I liked their organisation. We then attended a few meetings and I took part in those meetings. That is how I joined the IFP. Even today I'm still a member of the IFP. In 1991, during between January and March of that year, there was conflict in Pietermaritzburg between members of the ANC and the members of the IFP and their supporters. That was in the Kaluza area in Pietermartizburg. With regards to Mpumuza, the Kaluza people wanted to absorb this area and make it ANC stronghold but the Mpumuza area was an IFP stronghold therefore this conflict started between the ANC and the IFP, that is between the two areas, Mpumuza and Kaluza. The ANC was very strong in attacking the Mpumuza area, they will be coming from Kaluza and other areas like Ashtown and attacking that area because they wanted to make that area, Mpumuza, an ANC stronghold.

MR DE KLERK: Mr Ndlovu, can you go a little bit slower, even myself, I find it difficult to write down what you are saying, so please go a little bit slower, please?

MR NDLOVU: Okay. 

MR DE KLERK: Okay go ahead?

MR NDLOVU: During the course of that conflict there were attacks on Mpumuza where we resided. This conflict between Mpumuza and Kaluza and Mpumuza was where I was born and bred and that's where I also joined the IFP. We realised that the conflict had gained momentum and we did not understand what was going on at Kaluza. We later discovered that they had acquired weapons to attack Mpumuza to actually turn it around into an ANC stronghold. We discovered that somebody was behind all of this. There was a man supplying ANC with weapons to attack the Mpumuza area, that is where I stayed. Some person who had fled Mpumuza to Kaluza and Mr Sibonelo Dlamini gave us information that at Kaluza there is somebody who supplies weapons for them to go attack the Mpumuza area and this person apparently worked at one of the police stations in Durban, that is in kwaMashu and that was the person who was helping the people in Kaluza to attack Mpumuza so that Mpumuza can become an ANC stronghold. We then met and we discussed this issue.

CHAIRPERSON: When you say "we" who are you talking about? When you say "we met and we discussed the issue"?

MR NDLOVU: It was with my brother, my elder brother, who was an IFP, Youth Chairperson, Mr Tabani, who is now deceased. We met and discussed with Tabani and we discussed the information given to us by Sibonelo Dlamini, that these people were now being assisted in attacking us by somebody meeting at a police station in kwaMashu.

CHAIRPERSON: Sorry, Mr Ndlovu, you mention a name Dlamini, what was his other name?

MR NDLOVU: Sibonelo Dlamini.

MR LAX: And who else was with you? You say "we" so was it just you and Tabani and Sibonelo are were there others present as well?

MR NDLOVU: It was myself and Tabani at my home because Tabani was the leader of the Youth of the IFP organisation and he was a guard of IFP leaders in the area. He used to work in the former ZP force.

MR LAX: At that time was he a policeman or was he just a special constable or what was he?

MR NDLOVU: He was a constable at the time.

MR LAX: So he was a proper constable trained at Ulundi etc.

MR NDLOVU: Yes.

CHAIRPERSON: Yes continue?

MR NDLOVU: We discussed this matter with Tabani and he told me that after receiving this information that this person supplies weapons to the ANC. I should try and find out information. He said he had also worked at kwaMashu Police Station. I said that I will try and trace this person Sumusesu Gumede and he said I should try indeed to trace him and try to find out if he does work at the kwaMashu Police Station because he was the one behind our attacks at Mpumuza. I did this as he had instructed me and because he was a youth leader. I then left for kwaMashu and I did discover that he indeed worked at the police station as a reservist at the police station. I then reported to my brother that yes I had found out about Sumusesu Gumede and he said that it fine, he would then try that we meet and we obtain a vehicle that will transport us to go attack him because we could not get hold of him Kaluza. They would sometimes meet at Kaluza when he came to bring the weapons but there were a lot of people around that area including women and children therefore other people would get hurt, people who were innocent if we actually attacked him there, but because we wanted just him alone we decided that we should go and attack him at kwaMashu. We then planned this in 1991 on the 16th April, that we should proceed to the kwaMashu Police Station where we found out there was where Mr Gumede worked. Tabani said that we should try and contact Mr Patrick Zondo who was on good terms with him, who could help us in supplying a vehicle for us to transport us to Durban. I had also discovered that this person used to work at the school, Tandakwazi was a school in kwaMashu, doing the night shift 6 to 6. We left my home and we went to Mr Zondo at the Mpumuza area and Tabani asked him to transport us to Durban but we did not give Mr Zondo the entire information that we were going to attack this person. Tabani told him that he was going to see a friend in Durban. We could not divulge everything we had to Mr Zondo because we did not completely trust him to keep the information to himself. 

&#9;Mr Zondo agreed to take us. We then used his car and proceeded to Durban to kwaMashu where we would find Mr Gumede. We left Pietermaritzburg at about 5 p.m. and arrived at kwaMashu at about quarter past 6 in the evening. We parked our car opposite the school, Tandakwazi, and my brother said I should get off and I alighted from the car and I looked around and I realised that he had not arrived as yet so we decided to go back to the police station because the police vehicles would transport people who were going to do guard duties around the area, therefore it could be that maybe they had not left the police station. We went back to the police station. We met a certain man and I enquired if the guards had left and he said, yes it seems like the had left. We then returned to the school where he was supposed to be, that is Mr Gumede. When we arrived near the school we saw this person approaching from the hostel, approaching the school. We sat in the car and he went into the school where he was supposed to do his guard duties. We told Mr Zondo that we were returning shortly and we left him in the car.

&#9;My brother and I went in and I showed him, I pointed him out the school. I stood outside the school and my brother went in and he called out to him. Mr Gumede seemed surprised when my brother called him to come to him and he tried to run away and my brother still tried to call him. My brother drew his gun, he fired a shot, he missed him and Mr Gumede ran away. He followed him, fired another shot and Mr Gumede fell. He shot him at the back of the head and Mr Gumede fell. We then went back to the car. On our way back to the car I told him that we are sometimes attacked by people from the townships. If you leave that gun behind and there is a bus stop nearby where he fell there will be people around, it could happen that those people would pick up this gun and use it to attack other areas. I told him that we should not leave the gun behind because somebody else may see it and take it and use it elsewhere and it could be used in attacking other people, other IFP supporters or even ourselves and my brother agreed with me and we decided that we should take that gun.

&#9;Tabani picked up the gun and we went into the car. We told him that we had found our friend and then we had to return. We then returned to Pietermaritzburg to the Mpumuza area. Mr Zondo dropped us at home and he proceeded to his home and we thanked him for his assistance.

&#9;Tabani was very pleased with my information because the ANC had gained strength because of the assistance that they had received from this person. Our members were even afraid and people were afraid of joining the IFP. I was also happy that we could find this person and we felt that the violence maybe will subside because this person was the one behind the supplying of the weapons that were used in the conflict.

&#9;After a while, in 1992, it was discovered that the people who had killed Mr Gumede were now known to the police, that is myself, Tabani and Mr Zondo. I do not know how this information leaked to the police, I just heard that Mr Zondo had been arrested in Durban and I was also being sought by the police. I was also arrested with regards to the crime and I was charged and convicted. Tabani was also arrested with regards to the same incident. In 1992 we were released on bail. During the same year in June, on the 3rd, police arrived, that is from the ...[indistinct] Police Station. They said that they had gotten information.

CHAIRPERSON: Sorry, is it back on? The interpretation just went off for a little while but I think it's back on. Yes, carry on, sorry Mr Ndlovu.

MR DE KLERK: Thank you Mr Chairman. Mr Ndlovu, were you then subsequently charged in the High Court and convicted?

CHAIRPERSON: I think you were saying the police arrived after you were released on bail. What happened then? I think there was something he was going to say. Probably about ...[inaudible]

MR NDLOVU: After we were released on bail on the 3rd June 1992, police arrived, the SAP police and they were with some ANC members from Kaluza. They said they were looking for Tabani because they'd heard that he was the one who had killed Gumede. I told them that Tabani was in town. They also asked if I was present during that incident. They said I should pass the message to Tabani that they were looking for him. Amongst the people who were there was Skiza Zuma, an ex IFP member and they said Tabani should be killed because he was responsible for killing ANC members. I told that we had already been arrested and charged for this crime, what more do they want because we have been charged for that crime.

When Tabani arrived I told him that the police and ANC 

members had been to our house and they were looking for him and we could see that they were looking out for a fight.

&#9;On the 4th at about 1.30 a.m. some people who called themselves police knocked on our door. My mother enquired what did they want because they were kicking all doors. They said we should open the house, they're looking for Tabani. My mother refused to open the door because it was early in the morning. They should return in the morning. They insisted that they were the police, if we do not open the door they will kick the door down. I said that we should not open the door. They kicked the doors, broke the doors down and then they also threw petrol bombs and fired shots. We could realise then that these were not the South African Police because police could not behave in that way. We all went into the dining room, the house was burnt and they were firing shots. One of the girls was shot in that incident. I tried to run away. I went outside into the veranda and they started firing at me. I even saw one person who was with these people from kwaKaluza. Skisa was saying they should kill me but I managed to break away and run away. They continued firing. I phoned the police from the one house, the Mabizela house, I phoned the police, the ...[indistinct] police, informing them of this incident. When the police arrived we went to my home and we discovered that my mother had been shot and also my sister as well as that the house had been burnt down. Tabani had also been shot and he was at a neighbour's house temporarily. We picked him up from that house. His girlfriend, Kyansile, had also been shot. We took him to the Grey's Hospital. 

&#9;On the following day Tabani was dead. We buried all my family members and we continued staying at my aunt's house in Westgate because our home had been burned down.

CHAIRPERSON: Sorry, you said Mr Ndlovu that you buried all your family members. You said that your mother was shot, did she die?

MR NDLOVU: Yes she did die.

CHAIRPERSON: And your sister, did she die?

MR NDLOVU: Yes.

CHAIRPERSON: And Tabani's girlfriend, did she die?

MR NDLOVU: No, she did not die but she sustained injuries because she was shot as well. It is only Tabani who died at hospital.

CHAIRPERSON: So the three people died, your mother, your sister and Tabani who died the next day?

MR NDLOVU: Yes that is correct.

MR DE KLERK: Thank you Mr Chairman. Mr Ndlovu, just to clarify a few aspects. Firstly do you have in this time, this incident in 1991, were you also a member of the kwaZulu Police?

MR NDLOVU: Yes I was.

MR DE KLERK: What was your rank?

MR NDLOVU: At the time I was a special constable awaiting training.

MR DE KLERK: Where did you go to, to be trained as a special constable?

MR NDLOVU: I was trained at Cape Town Training Centre.

MR DE KLERK: At Koeberg?

MR NDLOVU: Yes.

MR DE KLERK: Okay Mr Ndlovu, remember that you filled in an annexure form 1 as an application for amnesty?

CHAIRPERSON: What page are you referring to Mr de Klerk.

MR DE KLERK: I can assist the Commission, there is two form 1's. I just want to explain why there's two.

CHAIRPERSON: Which pages are you on there?

MR DE KLERK: The first form is from page 2 to page 4 and the other one starts on 5 to 11. There's two of these forms, why is there two?

MR NDLOVU: I first filled a form at Westville Prison. When I followed up the process, I'm enquiring if the form had been sent or not and it was discovered that it was not clear whether the form had indeed reached the TRC or not or maybe it had been lost. I then wanted to proceed with the matter and I did not know what was going on. I then filled in another form so that if the first one got misplaced the second one could be used.

CHAIRPERSON: I just might say, Mr de Klerk, that we're missing and I think you probably are as well, a page from one of these forms. If you take a look at page 8 of the bundle, in response to the question contained in paragraph 10(a), 10(b) at least, the applicant writes out his version and then at the bottom it says p.t.o. separate page and that separate page isn't there.

MR DE KLERK: Yes I also noticed that Mr Chairman.

CHAIRPERSON: Bottom of page 8 Mr Mpshe.

ADV MPSHE: Is he perhaps not referring to the affidavit, Mr Chairman?

CHAIRPERSON: You can see this sentence is incomplete, yes.

So maybe the original will have the separate page which was omitted to be photocopied.

MR DE KLERK: May I proceed Mr Chairman?

CHAIRPERSON: Yes indeed, thank you.

MR DE KLERK: Okay, Mr Ndlovu, if we look at page number 3, that is the second form that you filled in. I just want to clarify one aspect. In the nature and particulars it was written down and it seems that it was not your handwriting: 

&#9;"The deceased had been supporting ANC by supplying them &#9;with firearms. ANC was fighting with IFP and they killed &#9;my brother."

Am I clear that your brother was killed after the incident of Mr Gumede?

MR NDLOVU: My brother was indeed killed after we had killed Mr Gumede.

CHAIRPERSON: Was Tabani your only brother?

MR NDLOVU: He was my elder brother. There are other younger brothers but he was older.

CHAIRPERSON: Where any of the younger brothers killed before the Gumede incident?

MR NDLOVU: No.

MR DE KLERK: Then Mr Ndlovu, on page 9 of the original application which you wrote out in your own handwriting. The question was asked and that is point 11(a):

&#9;"Was the act committed in the execution of an order or on behalf of, or with the approval of the organisation/institution/body liberation movement/State Department or Security Force concerned?"

Then you answered there in your own handwriting:

&#9;"I was participated in the offence with the approval of the kwaZulu Government because they were employed me to defend and protect the IFP members whom they were attacked by ANC."

Can you just explain, what did you mean by this paragraph?

On whose behalf did you act and who did you want to protect when you killed Mr Gumede?

MR NDLOVU: What I did, I did under the banner of the IFP. The kwaZulu Government and the IFP are regarded as one and the same thing. I knew them to be one. Whatever I did, I did under the banner of the IFP, that is what I was trying to explain.

MR DE KLERK: Did you receive any moneys or any benefit from this act?

MR NDLOVU: I have never received any money or any reward for this action.

MR DE KLERK: If you could just clarify the following? When you were charged in the High Court and subsequently convicted, during that stage, as I went through the notes and the judgement, am I correct that at that stage you did not mention to the High Court that this was a politically motivated attack, is that correct?

MR NDLOVU: That is correct, I did not mention it.

CHAIRPERSON: In fact I think the applicant pleaded not guilty in the High Court.

MR NDLOVU: Yes.

MR LAX: Why was that?

MR DE KLERK: Can you just explain to the Commission why at that stage you did not tender the excuse of political violence?

MR NDLOVU: I pleaded not guilty in court. I wanted to deny the charges so that I could be acquitted and because the Commission seeks to learn the truth therefore I find it or I see it important that I tell the truth, the entire truth regarding the objectives and the reason for committing this crime.

MR DE KLERK: In the High Court you were also found guilty on the charge of robbery. Was it your intention to go to Mr Gumede and rob him of his firearm?

MR NDLOVU: It was not my intention to rob Mr Gumede of his firearm. We did have firearms at the Mpumuza area. There was no reason for us to drive all the way from Pietermaritzburg to Durban to attack Mr Gumede just for robbing him of his firearm. Our reasons for attacking him were to stop him from supplying the weapons that he gave to the ANC members in Pietermaritzburg, that is why we decided to kill him.

CHAIRPERSON: While you're on this point, sorry to interrupt, Mr de Klerk, but while we're dealing with this point, we have before us a copy of the judgement that was handed down at your trial and I'd just like to read one paragraph, short paragraph, from that judgement, it's on page 30 Mr de Klerk at line 9. This is what the judge said:

&#9;"The key witness on this issue is one Nkosa Nati Ngobo. He testified that a meeting took place at Tabani Ndlovu's house in April 1991 at which he, Tabani Ndlovu, the accused and Bright Dlamini were present. At this meeting Tabani Ndlovu said that they should go to kwaMashu to take a firearm at gunpoint from a policeman."

So that, it would seem Mr Ndlovu, that this witness Nkosa Nati Ngobo says that the prime objective of the mission was to rob a firearm. What do you say to that?

MR NDLOVU: I disagree with that statement because I was seeing him for the first time when he made this testimony but he had been on goods terms with my elder brother. He made a lot of statements in court. He even said that I was responsible and at some other times he would say it was my brother who planned the whole thing, therefore I would not regard him as a reliable witness because at the time he had become a member of the ANC who had fled the Mpumuza area.

CHAIRPERSON: Yes thank you Mr de Klerk.

MR DE KLERK: Mr Ndlovu, if at that stage 1991, you wanted for argument sake an automatic firearm, was it difficult or easy for you to acquire such a firearm?

MR NDLOVU: I did not have difficulty in obtaining a firearm. If I wanted a weapon or a gun I had many avenues open to me in Pietermaritzburg. We would have not driven from Pietermaritzburg to Durban when there were guns in Pietermaritzburg.

MR LAX: Just while you're there, sorry to come in Mr de Klerk, what were those avenues?

MR NDLOVU: We could make our own home made weapons to protect ourselves.

MR LAX: Yes, what else?

MR NDLOVU: That was the way in which we obtained weapons. My brother, Tabani, was also the IFP Youth Leader who had the responsibility of protecting IFP members. He had legal weapons in his possession.

MR LAX: Well you said you had many ways of getting weapons, you've told us two. What are the others? You see a home made firearm is not an automatic firearm. You said you had many ways of getting other weapons, especially automatics. If you're here to tell us the truth, well open up about it.

MR NDLOVU: With regards to the conflict in Pietermaritzburg, IFP supporters and members from other areas would come and they will sell us weapons. Those are the people that we asked for assistance from.

MR LAX: Where would they have got the weapons from?

MR NDLOVU: I would not know where they obtained those weapons because we were only concerned with what they sold to us and we did not enquire from them where they actually got these guns.

MR LAX: Thanks Chairperson.

MR DE KLERK: So Mr Ndlovu, if I understand you correctly, it was easy to buy a firearm in that period of time?

MR NDLOVU: Yes it was easy.

MR DE KLERK: What was the sentence that you received from the High Court?

MR NDLOVU: I was sentenced to 20 years imprisonment.

MR DE KLERK: And how long have you been in prison now?

MR NDLOVU: This is my fifth year in prison.

MR DE KLERK: Thank you Mr Chairman.

NO FURTHER QUESTIONS BY MR DE KLERK

CHAIRPERSON: Thank you Mr de Klerk. Mr Mpshe, do you have any questions to put to the witness?

CROSS-EXAMINATION BY ADV MPSHE: Yes Mr Chairman.

&#9;Mr Ndlovu, do you have an application with you?

MR NDLOVU: No.

ADV MPSHE: Okay I will read to you what is in the application. On page 3 of your application, page 3 of the bundle, Mr Chairman, I'm sorry. Responding to a question under question 10(a) where it says:

&#9;"State political objective sought to be achieved"

You said the following:

&#9;"We wanted to eliminate the enemy's supply and by doing that.."

Now here comes my problem:

&#9;"..we were defending our organisation."

Did you get that?

MR NDLOVU: Yes.

ADV MPSHE: Now from what were you defending your organisation?

MR NDLOVU: We were defending the organisation from attack by the ANC.

ADV MPSHE: Did the deceased in this matter ever attack your organisation or attempt to attack your organisation?

MR NDLOVU: The deceased was behind all those activities organising ANC members and supplying them with weapons to attack IFP members.

ADV MPSHE: Did you, Mr Ndlovu, have any personal knowledge whether this man, the deceased, ever attacked your organisation?

MR NDLOVU: From the information that we received from Sibonelo Dlamini with whom the deceased used to discuss these matters, that was the knowledge we had.

ADV MPSHE: Let's move to page 7 of the bundle, still the application, the second application. Still paragraph 10(a), question of paragraph 10(a). Just to mention to you in passing, you're now bringing something different to what I've just read to you and you state:

&#9;"The political objective sought to be achieved was stopping the confliction of two organisation's supporters which is IFP and ANC. I've achieved for protecting my supporters on that confliction."

MR DE KLERK: Mr Chairman, I have to object. To be fair to the witness and the applicant, I don't see the conflict here. It's just a different way of stating the same thing.

CHAIRPERSON: Let's hear what Mr Ndlovu has to say. Mr Mpshe can, if he believes there's a conflict and make submissions later on that point. I think by Mr Mpshe saying that there was a conflict between this paragraph, telling the others he is expressing his personal view.

ADV MPSHE: That is so, Mr Chairman.

....[inaudible] of two organisations?

MR NDLOVU: The stopping of the conflict between the ANC and IFP, rested on attacking Mr Gumede because he was the one who was perpetrating the conflict because he supplied weapons to the ANC. Therefore, for the conflict to stop between these two organisations he would have to be removed.

ADV MPSHE: Do you then agree with me that stopping a conflict and defending an organisation are not the same thing?

MR NDLOVU: Yes I would.

ADV MPSHE: Let's proceed. Now my learned friend, your lawyer, with regard to page 9 of the papers, paragraph 11(a) elicited from you the evidence that you were doing this on behalf of IFP and the Government, do you still recall that?

MR NDLOVU: Yes I do recall.

ADV MPSHE: Was it the policy of the IFP to kill opponents?

MR NDLOVU: It was not the policy of the IFP to kill it's enemies but there was no policy pertaining to attacks on IFP members, they did not say that we should not defend ourselves when we are being attacked. The IFP policy is that negotiations is what you should endeavour to do but if there were attacks, the IFP had never instructed us to sit back and watch on, we would have to defend ourselves.

ADV MPSHE: Now let's go back to what I'd said to you initially or sometime in the beginning. Before you could attack and kill the deceased, were you told of any physical action by the deceased where he attacked IFP?

MR NDLOVU: We had received information from Sibonelo Dlamini that the deceased supplied weapons to the ANC for them to attack Mpumuza and organising them to actually attack the area. This war went on and some people were injured and killed during the course of the conflict.

ADV MPSHE: Were you told by your informer, once more, as to when was the IFP attacked and as to whether the deceased was involved in that attack by supplying arms?

MR NDLOVU: Sibonelo told us that the deceased was behind all these activities. He supplied them with weapons and he would also instruct them or recommend to them how they should attack the area and he would be amongst them.

ADV MPSHE: When was the last attack on the IFP orchestrated by the deceased on the period?

MR NDLOVU: It was in 1991. There was an ongoing war between January and March 1991.

ADV MPSHE: And your informer told you that the deceased was involved in that fight or war?

MR NDLOVU: Yes, that is what he told us.

ADV MPSHE: Did you tell this when you were being led by your lawyer?

MR NDLOVU: I explained it to my lawyer.

ADV MPSHE: No, in evidence now, when you're giving evidence about the information given to you?

MR NDLOVU: He did not ask me about that, I only responded to questions that were put to me.

ADV MPSHE: Let me remind you, you were telling on your own about the informer who came to you and told you everything. He never asked you questions about informer, you volunteered then you told what happened. Is that not so?

MR NDLOVU: That is correct.

ADV MPSHE: And you did not tell us this portion that you are telling us now?

MR NDLOVU: I am explaining it because you are enquiring about it now.

ADV MPSHE: Don't you think this was an important part because you alleged that you killed this man because he was orchestrating wars against the IFP. Was that not important for your case?

MR NDLOVU: Yes.

ADV MPSHE: Now you discussed this incident, unfortunate incident with your brother, Tabani, and you went and executed your plan by killing the deceased. Did you not have leadership in your earlier IFP leadership?

MR NDLOVU: There were some leaders at Mpumuza but Tabani was the IFP Youth Leader and everything was reported to him. I received many orders from Tabani, I did not see a reason to go report or discuss this matter with other leaders because Tabani was there and he was also a leader, a youth leader, in the area.

ADV MPSHE: Now seeing that you are going to carry out as you allege you carried out this operation on behalf of the IFP, wasn't it necessary for you and Tabani to discuss this with the local leadership, not youth leadership, the local national leadership or any regional leadership?

MR NDLOVU: I assumed that Tabani communicated with the leadership because Tabani was a leader and he was the one who was closest to us as the youth leader and I assumed that he communicated whatever we discussed with the other members of the leadership in the area.

ADV MPSHE: Did Tabani or yourself have any authority in terms of the IFP structures to - can plan and execute a plan and kill a person or authorise any operation?

MR NDLOVU: Yes we had that right to plan that because Tabani was responsible for the security of IFP members in the Mpumuza area.

ADV MPSHE: Are you saying you even have the authority to can authorise a killing of a person on behalf of IFP?

MR NDLOVU: Yes he could have that authority because even the leaders at Mpumuza relied on him. They all came to report to Tabani at Mpumuza about the war and what they suffered. 

ADV MPSHE: Let's turn to page 12.

MR LAX: Sorry, before you go away. Which leaders came to report to him?

MR NDLOVU: IFP youth members from Mpumuza and some other men, people like Mr Ngobo, they were attacked and they would come to Tabani and complain to them that they're being attacked and there he was as their protector and he was doing nothing. Women and children also come to Tabani to report to him.

MR LAX: Yes I asked you which leaders, which leaders at Mpumuza came to him? You said the leaders came and reported to him. I know ordinary people might have come but which leaders came to him?

MR NDLOVU: Mr Ngobo and Mr Phillip Umhlongo reported to Tabani.

MR LAX: And who gave him the authority to look after the security, which senior people?

MR NDLOVU: Tabani used to work in the kwaZulu Police, he had been stationed at the Mpumalanga from Ulundi, he would report at the police station. I do not know who specifically he reported to but it was known that he was in the area protecting IFP members.

MR LAX: Mr Ndlovu, if your brother and this is your oldest brother and it's clear you were close to him and you discussed these matters with him, if he was responsible for the whole of Mpumuza's security, he would have discussed it with the IFP leadership at Mpumuza at least. You've not mentioning any of their names here, why? Why are you not telling us about these other people?

MR NDLOVU: We discussed some things but some of the things he would not tell me because I was younger and maybe he suspected that I may not keep that information to myself but whatever we knew we heard from him. Even if there were meetings, maybe if he had meetings somewhere else he would tell us but he had never mentioned to me the specific leaders who he met because I was younger and I was also afraid to ask him some of the things.

MR LAX: Who were the leaders at Mpumuza of the IFP?

MR NDLOVU: It was Mr Phillip Umhlongo.

MR LAX: Yes, what was his role?

MR NDLOVU: He was the chairman of the IFP.

MR LAX: And what police station was your brother based at?

MR NDLOVU: At the Mpumalanga Police Station in Hammarsdale, that was the one station closest to Mpumuza in Pietermartizburg.

MR LAX: And who was he responsible for guarding?

MR NDLOVU: He was responsible for protecting IFP members in ...[indistinct] and Mpumuza and he also protected IFP members in parliament like Mr Nabisa Ngobe.

MR LAX: Carry on Mr Mpshe.

ADV MPSHE: Thank you. Just to go a little back, the meeting where the plan was done between yourself and your brother, where did this take place?

MR NDLOVU: It was held at my home at Mpumuza.

ADV MPSHE: It was started there and finalised there then execution followed?

MR NDLOVU: Yes.

ADV MPSHE: When you say your brother was a leader, was a youth leader, what position did he hold in the youth leadership?

MR NDLOVU: He was the chairperson of the IFP Youth League.

ADV MPSHE: Would I be correct to state that there was a youth committee in that area as well for which he was a chairman?

MR NDLOVU: I did not fully understand the workings of the youth committee but he was in the youth committee and he was the chairperson.

ADV MPSHE: You don't know whether he was a chair of a committee, all what you know is that he was a chair of the youth?

MR NDLOVU: He was the chairperson of the youth.

ADV MPSHE: At any given moment did yourself and your brother discuss this with any leadership in the youth?

MR NDLOVU: Other people that we could have discussed the matter with that those people that my brother trusted were already deceased.

ADV MPSHE: No I'm not talking about brothers, I'm talking about leaders in the youth leadership, he was a chair of the committee. Were they involved in this planning?

MR NDLOVU: No, they were not involved.

ADV MPSHE: After doing all this, did you report your actions to the IFP leadership?

MR NDLOVU: Tabani reported.

ADV MPSHE: To whom did he report?

MR NDLOVU: He once reported to Mr Phillip Umhlongo that such an incident had occurred but he only reported it after he had been charged with the crime, that was the killing of Mr Gumede.

ADV MPSHE: So your brother informed the chairperson, Mr Umhlongo, only when you people got arrested?

MR NDLOVU: That is correct.

ADV MPSHE: And it's the first time that the IFP leadership knew about this incident, am I correct?

MR NDLOVU: That is correct.

ADV MPSHE: Did you hold in position in the organisation, IFP?

MR NDLOVU: I was a member of the youth and I was involved in the security and protection services in the community.

ADV MPSHE: No, no, no. I'm talking about organisation IFP, did you hold any position of leadership?

MR NDLOVU: No, I was a member, I did not hold a position.

ADV MPSHE: What is a requirement for a person to become a member of the IFP, or to be fair to you what was the requirement then?

MR NDLOVU: For you to join the IFP you would have to formally join and obtain a membership card.

ADV MPSHE: You simply go and tell them you joined and they write and you are a member?

MR NDLOVU: You mention, when you mention that you want to join, you state the reason why and then you join the IFP.

ADV MPSHE: Is there any payment done for you to become a member, subscription of some sort done?

MR NDLOVU: At that time, yes you did, payment of a fee of R10.

ADV MPSHE: Now let's go back to your informer, Sibonelo Dlamini. What made him divulge this information to you?

MR NDLOVU: Sibonelo had fled the Mpumuza area and he had fled to Kaluza which was an ANC stronghold. He had left his parents at Mpumuza and there were rumours that he would come to Mpumuza, he would come there and hide himself because if people saw him they would kill him. He tried to get into contact with Tabana and he requested to see his parents in Mpumuza and he mentioned that he had fled the area because he wanted to continue with his schooling in a peaceful area and because of that he was asked to give information about what happened in Kaluza because his family was residing at Mpumuza and he would be one of the people who would be protected by the information that he would give.

ADV MPSHE: Did yourself or your brother make any attempt at verifying these allegations against the deceased before you could decide to kill him?

MR NDLOVU: Yes we did try, we even contacted the police in Pietermaritzburg. We told them that there were weapons that were being sent to Kaluza, they should try and investigate about it. We discovered one day that there was a gun that had been found in Kaluza and it had been seized in from one house during a raid but this gun had been obtained from kwaMashu. This information we got from a Sergeant Wessel from the SAP in Pietermaritzburg. In that way we confirmed that it must be one of those guns that were being sent by this person from Durban.

ADV MPSHE: Oh, the police investigation did not link this gun to the deceased, you just drew inference that it must have been one of the guns he has been exporting?

MR NDLOVU: That is correct. We made that assumption because the guns used by the KZP were different, for example the 7.65 used by the ZP were different from those used by the SAP. When Sergeant Wessel told us that it was a 7.65 which was used by the ZP's we realised that it must be one of those guns that are brought in to Kaluza.

ADV MPSHE: We have been told many times in other hearings, I need your confirmation, that even within the police force there were certain members of the force who were supplying guns either to IFP or to ANC. Would you say that is correct?

MR NDLOVU: With regards to kwaZulu Natal, it is true that some members of the police force used to collaborate with political organisations, some of them were ANC or IFP members but that is something that is something they would not divulge but it did happen that ANC and IFP members were part of the police force but as a member of the police you were not supposed to show that you indeed collaborate with either party. Many people in KZN assumed that the Zulu police used to work for the IFP which is not true because there were members within the ZP's who worked for the ANC and used to supply them with weapons to attack the IFP. Some of them will give weapons to the SDU's to promote or to strengthen the ANC.

ADV MPSHE: Good. On what you've just explained, it cannot be said conclusively that that gun, investigated by yourself, by the police, was the gun supplied exclusively by the deceased, it could have been any policeman or any other person, will that be correct?

CHAIRPERSON: He has already said that he's inferred that it was the deceased which I think is implicit it could be anybody else from the ...[intervention]

ADV MPSHE: I take the point, thank you Mr Chairman.

&#9;Now let's go to the scene. When you took ...[intervention]

MR LAX: Just before you do, I'd just thought you might be asking something on something else. While we're still talking about how you found out from the police and so on, this Wessels, was it Wessels or Wessel?

MR NDLOVU: Sergeant Wessel.

MR LAX: Where was he from?

MR NDLOVU: He was stationed at Mountain Rise in Pietermaritzburg. He was in the dog unit.

MR LAX: Was he the person you went to speak to? How was it that you were working with him in relation to guns that were being taken from Kaluza? You were a kwaZulu Police, he was SAP, how come you were working with him?

MR NDLOVU: Sergeant Wessel would also come to Mpumuza to look for weapons therefore we told him that they should also go to Kaluza to look for weapons, not just from Mpumuza. We wanted assurance that they also raided Kaluza in the same way that they raided Mpumuza because they would normally come to us looking for weapons and we told them that they should do the same at Kaluza. We were not working with him.

MR LAX: Well how did he come to tell you about the weapon that they raided in Kaluza if you weren't - why should he do that?

MR NDLOVU: He had come to my home to look for weapons and we told him that the people who had given him information that there were guns in my house were also, they also had guns in their possession and later he told us that we were indeed right that there were weapons that were being stored in Kaluza because he had found one in that area.

MR LAX: So you knew this Wessels, you obviously spoke to him on many occasions?

MR NDLOVU: Yes I knew him because he used to come to the area often.

ADV MPSHE: Mr Ndlovu, you told us the reason why the deceased firearm was taken, you gave us a very lengthy reason. But my question is to you, what did you intend doing with it?

MR NDLOVU: We would not have left the gun lying there because I used to work in these areas.

CHAIRPERSON: No, I know, I think the question Mr Ndlovu is once you had - you have given the reason why you took the gun but once you had taken the gun, what was your intention, what did you intend to do with that weapon once you decided to take it and in fact took it?

MR NDLOVU: Tabani said we should keep the weapon so that we should show it to the IFP members.

ADV MPSHE: Was that done?

MR NDLOVU: Tabani said he had informed Mr Umhlongo that there was a gun that had been removed from the deceased but he gave this information after we had been released, upon bail.

ADV MPSHE: So Mr Umhlongo was - let me put it this way - this gun was reported to the IFP leadership four, five months down the line, am I correct? This offence was committed ...[intervention]

CHAIRPERSON: Well no it was about fourteen months down the line because he was released on bail on the 3rd June 1992 and this occurred during April 1991, yes.

ADV MPSHE: I stand corrected. This was reported to Umhlongo months down the line? More than a year down the line?

MR NDLOVU: Yes a long time ...[indistinct]

ADV MPSHE: Now finally, will I be correct to state that yourself and your brother Tabani did not have any authority from the leadership to kill the deceased?

MR NDLOVU: All the information that I received was from Tabani and I assumed that he had communicated to the leadership because I knew him to be responsible for the protection of IFP members in the area and whatever I did I did in assisting Tabani. I was sent by him to monitor and trace this Gumede.

ADV MPSHE: Mr Ndlovu, I'm asking you this question deliberately because on page 12 of the papers, I'm going to quote to you what you've said. You say:

&#9;"The attacks on the victim was our own initiative, we were not instructed by any person."

MR LAX: Just to add to that, in your earlier evidence this morning when you were asked initially whether Tabani had got approval from anybody else, you also said he didn't need approval, he was the youth leader, he could do what he liked, he was charge of the security?

ADV MPSHE: Thank you.

MR NDLOVU: I was trying to explain that this matter had been discussed between myself and Tabani because he was the person closest to me as a youth leader.

ADV MPSHE: Then just let's not confuse it, let's go back to my initial question and just answer that question. Yourself and your brother had not authority, were not given any authority by the IFP leadership to kill the deceased?

MR NDLOVU: I would not lie and say some people had given us that instruction, nobody did.

ADV MPSHE: Now the last question. By killing the deceased, what did you hope to achieve politically?

MR NDLOVU: Our political objective was to stop the supply of weapons by Mr Gumede to the ANC in Pietermaritzburg. We wanted to strengthen our organisation and to defend it against or protect it against attack.

ADV MPSHE: Was the deceased's death going to enhance the political picture of the IFP or the political status of the IFP?

MR NDLOVU: The death of the deceased would have assisted the IFP because the conflict between the two organisations would stop because the ANC would no longer receive those weapons from Mr Gumede.

ADV MPSHE: I don't want to belabour this point but let me put it something as a follow up for the last time. Am I correct from your last answer to state that the conflict between the ANC and the IFP, actually that's what you say in your second application, paragraph 10(a). The conflict between the IFP and the ANC would be stopped, am I correct? Is that what you said?

MR NDLOVU: Yes.

ADV MPSHE: Will I be then correct to state that that would have no political gain for the IFP but simply that there should be peace in the area. Is my conclusion correct?

CHAIRPERSON: What are you trying to get at here, Mr Mpshe?

What do you mean by political gain? In that by stealing the gun they're going to get more voters in the election or not? What do you mean by political gain?

ADV MPSHE: By political gain, Mr Chairman, I'm referring to the enhancement of the political status of the IFP inter alia that they inter alia ...[intervention]

CHAIRPERSON: Well I mean if you've got a war situation and you get peace, doesn't everybody gain from that?

ADV MPSHE: Mr Chairman, everybody would gain but I'm being particular to the IFP because it was during this particularly.

CHAIRPERSON: Alright we can hear it but it seems a little bit obtuse.

MR NDLOVU: There would be peace and people would be able to join the IFP because we wanted to strengthen our organisation. We wanted the IFP to be strengthened at Mpumuza.

ADV MPSHE: That was the question I was expecting, Mr Chairman, thank you it was very clear, my question, thanks.

NO FURTHER QUESTIONS BY ADV MPSHE

CHAIRPERSON: Thank you Mr Mpshe. Mr de Klerk do you have any re-examination?

MR DE KLERK: No questions.

CHAIRPERSON: Mr Sibanyoni, do you have any questions to ask the witness?

MR SIBANYONI: Yes Mr Chairperson.

&#9;Mr Ndlovu, you said at that time subscriptions for IFP was R10. Did you ever pay subscription to be a member of the IFP?

MR NDLOVU: Yes I did.

MR SIBANYONI: At that stage were you as a police officer from kwaZulu Police allowed to be a member of a political party?

MR NDLOVU: I joined the IFP in 1987 before I became a member of the kwaZulu Police. That is how I came to pay that R10.

MR SIBANYONI: So as a member of a political party you would be employed as a police officer in the kwaZulu Police?

MR NDLOVU: Yes they did employ me.

MR SIBANYONI: The deceased was a police officer. You were also a police officer. Was it not the proper thing to report him to the police instead of attacking him?

MR NDLOVU: Because of our support for the IFP we did not see a reason to report the matter to the police because there was already a war going on in Pietermaritzburg. We felt that the deceased should be attacked without having to report the matter to the police.

MR SIBANYONI: When you were before the court for your criminal trial was it not the best thing to say to the court this person was supplying arms to the ANC, he was committing an offence, I was trying to stop him from doing that or defending the IFP?

MR NDLOVU: I pleaded not guilty in court. I thought that because nobody else knew about it, nobody else had the information except for myself, Tabani and Mr Zondo and Mr Zondo did not see anything and therefore I decided to plead not guilty and I decided not to admit that I had indeed committed the crime.

MR SIBANYONI: Is it merely a coincidence that you and the deceased were police officers and the planning was done by you and your brother and it took place at your home and after the operation the firearm was never reported to the IFP. In other words everything just ended between you and your brother. Was it a sheer coincidence?

MR NDLOVU: As far as I knew, I thought that Tabani had communicated and explained and reported the matter to the IFP leadership, that is what I knew because he told me everything was alright and was going well and I was surprised that nobody else had been informed because I knew him to be a trusted member of the IFP.

MR SIBANYONI: Will you perhaps try to clear this perception. The perception would be, or it would seem that this was more of a personal thing than of a political thing, this attack on the deceased? What is your response?

MR NDLOVU: I would strongly disagree with that. We had political objectives. We would not travel from Pietermaritzburg from Durban to kill the deceased just because of a personal grudge. We had received information that he was supplying weapons to the ANC to attack us.

MR SIBANYONI: Thank you, no further questions Mr Chairman.

CHAIRPERSON: Thank you. Mr Lax do you have any questions?

MR LAX: Thank you Chairperson. Just to pick up where my colleague is busy with you. This person came from Maritzburg, it's not like he was some person from Durban that was based in Durban, isn't that so, this deceased?

MR NDLOVU: The deceased will come to Sibonelo Dlamini's place in Pietermaritzburg. He did not reside in Pietermartizburg as according to the information that we received.

MR LAX: So are you saying that Gumede didn't come from Pietermartizburg and he himself didn't come from Kaluza?

MR NDLOVU: Mr Gumede would come to see ANC members in Pietermartizburg but according to the information that I got, he did not reside there but he would come there to see his colleagues.

MR LAX: Why didn't you just go to Gumede and say to him: "Listen Gumede, we know about you, if you don't stop this business we're going to kill you and we're going to report you to the police and we're going to insure that you never do this again."?

MR NDLOVU: I tried putting this opinion forth to Tabani, that I wanted to approach this man. Tabani said I shouldn't do it because if Mr Gumede discovers that I am close to him he may send some people to kill me because Tabani was well known in the Pietermartizburg area and if Gumede knew that I was Tabani's brother they could plot to kill me because Tabani was a wanted person in Pietermartizburg because of his IFP activities. Therefore Tabani realised that I could be placing myself in danger if I approached Gumede.

MR LAX: Why didn't you just go to your IFP colleagues in the ZP of whom there were many and say we now know of one of our colleagues who are supplying the enemy with arms. Let's set him up, let's catch him and let's prosecute him and thereby stop him. You didn't have to kill him? You could have set a nice trap for him.

MR NDLOVU: I would not have had the authority to do that because Tabani was the one who actually instructed me on what to do, I could have not communicated or contacted those IFP leaders.

MR LAX: I wasn't asking you to contact IFP leaders, I was suggesting you could have contacted IFP policemen. Your colleagues in the police, in the ZP, who would have been very happy to catch a colleague who was supplying the enemy?

MR SIBANYONI: Where I was stationed at kwaMashu where we were deployed the people who were close to me with whom I had been trained and were also members of the IFP were not at my police station, they worked in different police stations. I only worked with the people whom I had found at the station and I was not close to them and I did not know just how loyal they were to the IFP. I could be telling somebody who was an ANC member. If I did something like that I thought I could be placing myself in danger because I could be telling this information to the wrong person.

MR LAX: Well then why didn't you go to Wessels. You knew he was neutral, you knew he was looking for firearms, he would be very happy?

MR NDLOVU: As I explained before, Wessel used to investigate weapons and we told him that he should go investigate the Kaluza area.

MR LAX: Why didn't you tell him to go and investigate the deceased?

MR NDLOVU: We did tell him to go and investigate in Kaluza because this person was said to be responsible for supplying weapons in Kaluza. That was when he informed us that he had indeed uncovered a gun in Kaluza which meant that our information was correct.

MR NDLOVU: The point is, why didn't you tell him about the deceased, just give him his name and say this guy from kwaMashu is supplying. What you've just told us about a weapon from kwaMashu, this must be your source. You can easily catch him now, you've got a weapon from kwaMashu, here's the man, this is your man? Instead you go and kill him, why?

MR NDLOVU: As I explained before we did inform Wessels that there was a person responsible for supplying weapons to the ANC, that is Mr Gumede and we asked them to trace this matter, we did explain it to him.

MR LAX: So why didn't you then give him a chance to do his job? Instead you went and killed the man.

MR NDLOVU: When we realised that the situation was ongoing, people were suffering, people were killed and the houses were burnt down and we were also not safe and my home was on the boundary between the ANC and IFP area. We realised that police sometimes took their time in investigating and we don't know even if they did investigate the matter. We did not know how far Wessels was going to take the matter. We therefore decided that this person should be attacked in order to stop this ongoing violence.

MR LAX: Chair, maybe we can take the tea adjournment now?

CHAIRPERSON: Yes alright, we'll take the tea adjournment at this stage.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: When we adjourned Mr Lax was still asking the witness some questions. Mr Lax?

MR LAX: (continues) Thanks Chairperson. 

&#9;Mr Ndlovu, did you fill out any other forms for amnesty?

CHAIRPERSON: Besides the two that are in the bundle.

M. R. NDLOVU: (s.u.o.) I think there were only two.

MR LAX: The reason I'm asking is that your form has a 1996 number and both these forms, if you look at page 5 you'll see the application number is 1632/96. Both these forms are dated 1997 so in order for you to have a '96 number there must have been a prior form of some description. Do you understand? 

MR NDLOVU: Yes.

MR LAX: And I'm just wondering whether you remember whether you might have filled out another one or not. It's not a trick question, it's easy to forget that you might have done another one before this. It's just to help us get our papers right and for us to, if necessary, go and look at that other form and find it before we make a decision.

MR NDLOVU: These are the two forms that I filled in. I was in Westville Prison and thereafter transferred to Pietermaritzburg and the second form was returned to me at the Pietermartizburg Prison and I had to depose to it at a Commissioner of Oaths.

CHAIRPERSON: Mr Mpshe?

ADV MPSHE: I just want to bring your attention, perhaps it may be of some help that the first application, even if it was filled out in 1996, it was received on the 10th May 1997.

CHAIRPERSON: I'm just wondering how it got a '96 number.

MR LAX: Do you see the problem?

CHAIRPERSON: The application number is /96.

MR LAX: If you look at page 5 there's a reference number there, 1632/96.

CHAIRPERSON: Unless of course the person who entered the number made a mistake or wrote '96 instead of '97.

ADV MPSHE: Still on page 5, there's an indication of - it doesn't say when it was written but we used to write by hand, 23rd July 1996.

CHAIRPERSON: Oh well that explains it then.

MR LAX: So it could be that this hand-written form was received in '96, sent back for corrections and re-signature and then in the interim he did the '97?

ADV MPSHE: ...[inaudible]

MR LAX: Yes but in the interim the other form was done in '97.

CHAIRPERSON: Yes, the second form stated.

MR DE KLERK: Mr Commissioner, I know that some of the applications that I took to the Commission was not attested by the prison authorities, I think some of them went back.

MR LAX: Okay, I just wanted to clear it up so we didn't - we weren't left with a situation where there might be a third one and then we were deciding on only these two and not on a third one as well.

&#9;Now you said in reply to a question by Mr Mpshe that your brother didn't tell you everything because you didn't think that he trusted you or you thought that maybe he didn't trust you. Do you remember you said that?

MR NDLOVU: Yes I do remember.

MR LAX: Well if that is the case, why would he take you on this murder mission with him if he didn't trust you or he was a bit worried that you might talk about things and so on?

MR NDLOVU: He knew that I worked in Durban but he's at the kwaMashu Police Station and I knew the area whilst he didn't have enough information about the township.

MR LAX: Yes, the issue is if he didn't trust you why would he involve you, he might have got all the information from you but why would he involve you in a murder if he didn't trust you? It's a very serious thing, a murder, you will agree with me on that?

MR NDLOVU: He does not mean that he did not trust me completely or maybe he mistrusted me completely. The Mpumuza

area and the attacks on Mpumuza were well known issues and Sibonelo had given us information, he had given the information in my presence therefore he knew that I was aware of Mr Gumede's activities and because I worked at kwaMashua, I was in a better position to monitor and trace Mr Gumede and that is how he came to involve me at that time.

MR LAX: Now we understand from you now in your evidence under cross-examination that you were based at kwaMashu?

MR NDLOVU: That is so.

MR LAX: So did you know the deceased?

MR NDLOVU: I knew him by sight because he would sometime come to help during the weekend. I did not have details on him like where he resided or who he was because he was not in the same unit that I was in, I would just see on occasion when he came to the station.

MR LAX: Well, you see if you go to your statement at page 12 and page 13, I'll just read from the bottom of page 12. Well let me read the whole paragraph so we don't lose everything:

&#9;"I then got information that there was a man who was a policeman in kwaMashu who was supplying arms to the ANC members in Kaluza. I also got information that this policeman was known to Sibonelo Dlamini, born from Mpumuza and was staying at Kaluza after running away from IFP at Mpumuza. I learnt that this victim Gumede used to visit Sibonelo Dlamini at Kaluza. I got information that this Gumede was staying in the hostel at kwaMashu. I did not know his home district, I presume it was on the North Coast. On realising this, we made a plot to kill this Gumede. I first made investigation in kwaMashu Police Station until I got a positive identification of the victim, with the assistance of Sibonelo Dlamini."

Now, you knew this man by sight already, you say. You didn't need Sibonelo Dlamini's help to get a positive identification?

You worked with him.

MR NDLOVU: As I explained before, he was one of the people who used to come to the station on weekends to help out as a reservist. I tried to trace him through other police officers and I discovered that he was indeed one of the reservists who used to come to the police station to assist. That is how I got to know that he is the reservist at a police station and that he is residing at the hostel.

MR LAX: But you see I've just asked you a few minutes ago and you said you knew the man by sight, you didn't say you had to find out who he was?

MR NDLOVU: I did say that I knew him by sight when he came to help out.

MR LAX: You're also say in your statement, before you made the plot to kill him, that you knew he stayed in a hostel in kwaMashu. Earlier in your evidence you said you didn't know where he stayed. Please explain this?

MR NDLOVU: From the information that I received form Sibonelo, he said this person lived at the hostel and when I discovered that there were police reservists who came to the station occasionally to assist, I then realised that that indeed was the person, that is Mr Gumede and it happened that I had seen him before at the station.

MR LAX: It still doesn't explain why you told us earlier that you didn't know where this man stayed but you did work with him and you knew him by sight. If Sibonelo had told you that he stayed in the hostel before this you would have known where he stayed?

MR NDLOVU: The hostel itself is a massive place and I did not know whereabout the hostel did he stay.

MR LAX: The point I'm trying to make is just what your evidence told us and in any event you weren't going to go and kill him at the hostel, that would have been too dangerous for you? You also weren't going to kill him at Kaluza because there would be too many people around there as well. That was part of your earlier evidence, do you remember?

MR NDLOVU: Yes.

MR LAX: Did you not maybe have some quarrel with this man?

MR NDLOVU: No, we've never had a quarrel.

MR LAX: This Sibonelo Dlamini, he was scared of you guys, isn't that so?

MR NDLOVU: I do not think that he was afraid of me because I had not harmed him in any way. He had grown up in the Mpumuza area and had fled the area to the ANC area. As far as I'm concerned I don't think he would have been afraid of me.

MR LAX: But you told us that you discovered he was in the area and you sent for him and the only way you would let him stay, carry on staying in Mpumuza was that if he would give you information about Kaluza. So it could hardly have been voluntary on his part? Do you understand what I'm saying?

Now the question I have for you, in the light of that, is how could you trust the information he gave you when he would have just given you anything that you wanted from him so that you would leave him alone and let him be there?

MR NDLOVU: We trusted the information that was given to us by Sibonelo because this person is to come to his place and he also explained that this person worked at the police station and when I traced this person I did discover that that information was true and he also had an interest in protecting his home against ANC members because he also did not want his home to be attacked by the ANC. So for his home or for his family to be safe he also had to help Tabani with that information even where there were people who were supposed to be attacked. His home would be safe and not be attacked because Sibonelo supplied us with information.

MR LAX: Just two last small issues. This witness in your trial, Mr Ngobo, you say you never saw him before you arrived in court, you'd never seen him before?

MR NDLOVU: As I explained before, Mr Ngobo used to stay at Mpumuza but he was an ANC supporter. He was one of the people who fled the area.

MR LAX: You said that you hadn't seen him before he testified in court. That was your evidence earlier this morning. You said that Tabani told you that he knew him, remember?

MR NDLOVU: Yes.

MR LAX: Now the question I want to ask is, how could Tabani have told you that he knew him if Tabani was dead at the time your trial started and at the time Mr Ngobo gave evidence and you had never seen him before to know that there was any connection between them.

MR NDLOVU: Mr Ngobo used to stay in Mpumuza. I knew him from Mpumuza.

MR LAX: How did - do I understand you correctly that Ngobo had no part in these arrangements between you and Tabani to go and kill this man, this Gumede? You're nodding your head, I take that's a yes?

MR NDLOVU: Yes, he was not part of those arrangements.

MR LAX: Well then how did he have such detailed information that he could give at the trial about the conversations that took place and all the planning meetings and so on, if that is the case because the court relied on his evidence to convict you and you are saying that you were correctly convicted?

MR NDLOVU: That is a question that still troubles me up to this day because if you notice he made two statements. In one he will say I had orchestrated the plan and in another he will say Tabani had planned this. He made contradictory statements with regards to killing Mr Gumede. If the Committee would look through those documents. Even the court asked him with regards to who indeed was close to him between myself and my brother.

MR LAX: You see the court accepted his explanations for those contradictions, it's clear from the judgement and that's why it relied on that evidence. What is difficult for us to understand and this is why I'm asking you this, because it seems he couldn't have been told all that information by the police, they wouldn't know that detail. Only someone who was present would know that detail and yet you insisted he wasn't present and so that leaves us with a problem, we can't understand it. That's why I'm asking for your explanation, you see? So it's not a trick question, it's just to help us understand.

MR NDLOVU: Mr Ngobo was an ANC supporter. If he had the information about us, we would have not left him behind when we went to commit the crime because even Mr Zondo who transported us to Durban was not told everything about the crime because we did not trust him completely, therefore we would have no reason to leave him, Mr Ngobo, in Pietermartizburg when we went to commit such a serious crime. I was also surprised and confused as to where he got that information that he testified on in court.

Well in the trial he gave a reason why he didn't go with, that he didn't feel good about the operation and he gave you guys an excuse about why he shouldn't go. You remember that? He said he had to cook food and just didn't want to come. Anyway let's leave that. Thank you Chair, I have no further questions.

CHAIRPERSON: Thank you. Just very briefly Mr Ndlovu, when you proceeded on the operation were you armed? You yourself?

MR NDLOVU: No, I did not have any gun in my possession.

CHAIRPERSON: What sort of weapon did your brother Tabani have?

MR NDLOVU: He had a shotgun.

CHAIRPERSON: A shotgun?

MR NDLOVU: Yes.

CHAIRPERSON: A short gun or a shotgun?

MR NDLOVU: Shotgun, pump action gun.

CHAIRPERSON: A pump action shotgun? Did it spray when it shot or did it shoot a bullet?

MR NDLOVU: He shot the deceased at close range because the bullets that were used were SSG's.

CHAIRPERSON: Now could you just give an indication in this room as to how far away he was from the deceased when he actually shot him?

MR NDLOVU: It might have been just about Mr Mpshe's distance away.

CHAIRPERSON: Would you agree that's plus minus 5 paces and they were running at the time?

MR NDLOVU: Yes he was running.

CHAIRPERSON: And did the deceased at any stage attempt to fire at you or your brother?

MR NDLOVU: He had his gun on his link and he was still trying to aim or to get it off his arm but my brother shot him first. If he had not carried the gun over his shoulder maybe he could have managed to shoot but because he had it on it's link and because he didn't expect this to happen he had the gun on it's link or his shoulder.

CHAIRPERSON: What sort of gun did he have, the gun that you took from him?

MR NDLOVU: An HMC 9 mm parabellum, a sub-machine gun.

CHAIRPERSON: A police issue?

MR NDLOVU: Yes.

CHAIRPERSON: Did you or your brother use that firearm at all after the incident?

MR NDLOVU: No it was never used.

CHAIRPERSON: Thank you. Mr de Klerk, do you have any questions arising from questions that have been put by members of the panel?

MR DE KLERK: No questions.

CHAIRPERSON: Mr Mpshe?

ADV MPSHE: No questions Mr Chairman, thank you.

CHAIRPERSON: Thank you. Thank you Mr Ndlovu, that brings your testimony to an end, you may stand down.

CHAIRPERSON: Mr de Klerk?

MR DE KLERK: That's the only evidence I'm going to lead.

CHAIRPERSON: Thank you. Mr Mpshe?

ADV MPSHE: I'm leading no evidence Mr Chairman thank you.

CHAIRPERSON: Yes Mr Ndlovu?

MR NDLOVU: I would like to convey a message that I wish to reconcile with the deceased family. Everything that I did was not for personal gain, I did not have any grudge with the deceased but it was because of the political situation at the time therefore I would like to apologise to the victim's family. Even if I do not get amnesty, I would like them to accept that it was the situation and I pass my sincerest apologies. I am also a victim because I lost my family members, my mother, my sister and my brother.

CHAIRPERSON: Yes thank you very much Mr Ndlovu, we can understand your distress.

WITNESS EXCUSED

CHAIRPERSON: Mr de Klerk are you in a position to address us?

MR DE KLERK IN ARGUMENT: That's right Mr Chairman.

CHAIRPERSON: Thank you.

MR DE KLERK: Firstly, Mr Chairman, it is my opinion that the applicant should receive amnesty. Firstly, this matter happened quite a while ago and surely there will be some questions asked about exactly what happened and exactly how it happened. That is something that we would expect in circumstances like this.

&#9;It is clear that from the beginning when the applicant applied for amnesty he gave the same story and the golden thread came through until today. It may be asked yes, why did Mr Ngobo testify regarding this matter if he weren't there but the same question may be asked why didn't the applicant implicate him then because there's no gain for him or loss for him to implicate Mr Ngobo at all. Especially if he knew, very well, that according to him Mr Ngobo implied or testified in a certain way, falsely at the court in the sense ...[indistinct]

CHAIRPERSON: Are you saying that there was good reason for him to implicate him, to explain the contradiction between Ngobo's evidence and the applicant's version here?

MR DE KLERK: That's correct, Mr Chairman. It is my opinion that after this whole incident, if he tried to lie and tried to tell a different story of what happened, he would have come to the Commission and say but Mr Ngobo was there, he was one of the perpetrators in this whole thing but he doesn't do that so it seems that in my opinion and this is the problem with these sort of questions, the Commission and anybody that thinks about it, must speculate and that's where the danger comes in. We cannot sit here today and say definitely what Mr Ngobo said during the trial was the truth. We know that criminal courts are not courts of truth, it's courts of process.

CHAIRPERSON: Could be courts of truth but ...[intervention]

MR DE KLERK: I'm talking about ...[intervention]

CHAIRPERSON: What you've saying in reality is probably closer to the mark.

MR DE KLERK: Thank you Mr Chairman. Be that as it may, I don't want to go too much into the facts. Commission has listened to all the facts. The problems regarding these sort of applications is usually the political motive, was there any order or was it on behalf of a political party or organisation. Clearly in these circumstances, according to the evidence of the applicant, there was a political motive. The question usually now derives and that is usually the problem of these situations where we can accept that there was a - let's call it, the applicant also called it - a war situation on the ground. The situation perceived at that stage differs from any other situation in a normal community. The dynamics of that situation was two groups fighting with each other. The one group and it doesn't matter how we look at it, the one group trying to overpower the other group. 

&#9;In this situation and dynamics, the one group will decide to attack the other group and kill people because that will benefit them in some or other way. In these circumstances the applicant said no, it was done to take away the threat. So the motive is clear, the take away the person which they perceived as the person supplying firearms would have been to a great benefit for his party, his community and even as he thought at that stage, his government.

&#9;Then to say, well he didn't have a political motive, well we're almost saying well in a war situation there's two groups and one group wants to overpower the other and somebody dies according to that, there's no political motive, it just can't be. Now the question is usually asked, the IFP especially in those circumstances, had a policy of non-violence. So anybody that was a member of the IFP that had to live in these circumstances where we all know that people died, IFP died and ANC people died, that because they belonged to a party which officially said that there should not be violence, that makes any act of a member of that party doing something against that party's policy because that is not really true because the political party at that stage said and it was said by many of the leaders that the people may protect themself. 

&#9;If these members now say well, we have to protect ourselves and by protecting ourselves we have to take out the persons that is involved in killing us, what is he doing against what his party is telling him?

MR LAX: Are you in essence saying this is a - that that sort of pre-emptive strike, if you like, is a part of defence?

MR DE KLERK: That's correct, Mr Chairman.

&#9;So we sit with a problem that it's very easy to sit back and say well the political, even today say, no violence. For that reason, no amnesty. But we know the truth is that they had to protect themselves.

CHAIRPERSON: Yes, we also know through experience and it's general knowledge that there was huge conflicts within the province of KwaZulu Natal and that conflict involved various political parties. I mean that's common knowledge.

MR LAX: And if I can just add particularly the areas he's talking about, I bear personal knowledge of those conflicts, so that's not an issue.

MR DE KLERK: In this specific instance, there's no indication that there was a quarrel between Mr Gumede and the applicant. It seems that the applicant, as he explained, was under the impression that his brother who was a youth leader was in control of the situation. He didn't deem it necessary to go and ask for permission, go to higher levels to clarify it ...[intervention]

CHAIRPERSON: On that one, Mr de Klerk, the applicant said he assumed that Tabani had done, so we don't know he did or didn't and then after questioning by Mr Mpshe he eventually said "well we didn't have any specific instruction" and that fits, you know, as far as he's aware he didn't think or know that Mr Phillip Ngobo or any of the others had said "okay you go ahead" but he assumed that Tabani may have communicated and got, so there may have been that authority or there may not have been.

MR DE KLERK: Yes Mr Chairman I agree. My argument about that is that for him, his subject of thought at that stage is that there was nothing wrong with it because his brother even told him everything is alright.

&#9;Furthermore, taking into consideration the situation where there was attacks and everything, surely any person at that stage staying in those areas would have acted and would have thought that he actually did a great thing for his community and behalf of his party. The reason why I'm saying that is, if you look then at Section 20, sub-section 2(e) where it says "the omission or offence was committed in the execution of an order of or on behalf of", I'm of the opinion that it is clear from his subjective thoughts at that stage that this was done on behalf of the IFP, his community and the KwaZulu Government which he perceived as one. So in that sense, I think there it should be no question about the fact that this was a politically motivated killing.

&#9;There's only one last aspect I want to mention Mr Chairman and that is my personal opinion regarding applications for amnesty, the fact that it must bring reconciliation also into the picture.

CHAIRPERSON: It's not a requirement, but if one looks at the preamble of the Act, what you say is incorrect.

MR DE KLERK: Because of that, the reason why I'm mentioning that is, if you take that reconciliation part and you put it in to the situation as it was at that stage, it easier to understand why people acted on the information like this, why they didn't go to the police. It was a divided community, it was difficult to go to police, it was difficult to trust people. Sometimes family members did not even trust each other and my request is, taken the situation, taken the fact of the time lapse that has transpired from then until now, I don't see the few contradictions in the evidence as of such a nature to reject the evidence of the applicant. It's clear to me that he didn't try to hide anything. He even, in cross-examination, when specific names was requested from him, he did give names of the leaders that referred back to his brother and so forth. 

&#9;I think that if there is a motive, it must be this motive, there was no other reason for them to kill this person. If they needed firearms it's common knowledge it was easy to get firearms at that stage.

&#9;Even Mr Ngobo initially did not give any reason of a personal nature why this should have happened.

CHAIRPERSON: I don't think there's anything on record at all, certainly not on the documents of a personal ill-feeling between Gumede and the applicant. The only suggestion on the papers is that, according to Ngobo, it was to get the firearm.

MR DE KLERK: I know that was said, my only explanation for that is if that person did receive information at a later stage, we don't know how. He knew that this information was the correct information. Let's say he did testify regarding the information that he got, he wouldn't have known what was the real reason behind it and the only reason at that stage would have been the robbery of the firearm. But I don't think it fits into the logic following of the facts.

MR LAX: Except to say this that the two people worked together. Again it's total speculation but it's a possibility like all others and if one is going to weigh up probabilities, they worked together, he knew he worked in a secluded school, he was easy picking.

MR DE KLERK: Yes Mr Chairman, the only answer that I do have to that, it's clear from the applicant's evidence that he knew him from sight, he didn't know his name. So if you know somebody from sight and somebody else tells you of Mr Ilan Lax, I know you from sight but I don't know what's your name, I still need somebody to point you out or to give me more information about you.

MR LAX: The thrust of my point was, here was somebody from whom a firearm could very easily be obtained. He was an easy target, he's sitting out in a school at night as a guard. I'm just saying that, let's not dwell on it.

MR DE KLERK: Yes, no I accept that but the counter argument can be, it can also be extremely dangerous for that person without an automatic firearm walking up to him, that person could have ...[intervention]

MR LAX: You see, what I'd like you to just address me on, if you look at the post-mortem, the entrance wound was basically 3 cm by 2.5 cm. With a shotgun, that's got to be at very close range and 5 metres would not be sufficient at all, must have been much, much closer than that to have such a small entry wound from a shotgun, it's practically a spread of - it's a little bit bigger than the barrel, literally, of any ordinary shotgun, so that's very close range. That's what worries me, but anyway.

CHAIRPERSON: Well it does say birdshot - it says: "Entrance wound in front of right ear, 3 cm long, 2.5 cm wide, no burn mark, with an abrasion and with birdshot pellets recovered from the left cheek.

MR LAX: Gone right through.

CHAIRPERSON: Probably gone right through and birdshot wounds.

MR DE KLERK: Yes. No I accept that. Once again I would refer to the fact of the time period that has lapsed, the fact that it was dark, the fact that these two people were running away, so it is quite possible that they were much closer than the applicant tried to explain today. 

CHAIRPERSON: Yes and also there's no burn mark.

MR DE KLERK: Yes. The fact remains it could have been possible, let's accept it was only one metre shorter and you take in consideration the length of the firearm and so forth. It could clarify that quite easily. I think the Commission has experienced that quite often, that these distances are so difficult stand and fall by. If it ...[intervention]

MR LAX: No one accepts, Mr de Klerk, that the fluctuation of time and darkness and we don't expect perfect memory from witnesses, honestly, we accept that.

MR DE KLERK: Any other questions, I would love to ...[inaudible]

ADV MPSHE: ...[inaudible] Mr Chairman, I'll just go to the legal part of it, the question of authority and the question of whether he acted on behalf and in interest of an organisation. The section quoted by my learned friend, Section 20, cannot remember what sub-section that is.

CHAIRPERSON: Sub-Section 22(e).

ADV MPSHE: I'm indebted to the Chair. Mr Chairman, what follows under Section 20 is preceded by a preamble wherein that Section 20 connects all those (a) up to (g) to the political objective and all what it means is that for a person or for a community to decide that was a political objective, the following have to be satisfied.

CHAIRPERSON: No, not all of them because they all can't be satisfied because some relate to people in the service of the State as opposed to others relating to people being members of liberation movements, but at least one of them being satisfied.

ADV MPSHE: That is correct Mr Chairman. One of them has to be satisfied. I'm taking particularly the aspect of the order or instruction by the organisation you purport to have been acting on it's behalf. The applicant has put it very clearly that this was their own initiative and that is also on the papers on page 12 and he put it on record under my questioning that they intended informing the leadership of the IFP of this action but that was never done.

CHAIRPERSON: Well it was only done when they landed in the soup, as it were.

ADV MPSHE: Yes Mr Chairman, the Chair reads my mind I want to believe. I was going to say Mr Chairman, but funnily enough this is done 14 months down the line, when they were in the soup, when actually the quagmire was taking charge of them but if really, the intention was to act on behalf of the IFP and report to the IFP, what would you have expected then after the operation before landing in that quagmire to go to leadership, Mr Umhlongo and say "this is what we have done and this is on behalf of the organisation". Fact, that was not done. Then one really questions as to whether this was on behalf of the organisation.

&#9;Mr Chairman, it is true as the Chair also commented or remarked that the people heard from leadership that they had to protect themselves but we cannot go that distance and say the protection meant even the killing. For that matter actually, the applicant said it clearly it was never the policy of the ANC to kill.

CHAIRPERSON: You're now going on the question of proportionality?

MR LAX: Sorry, you said the ANC. You said the ANC.

ADV MPSHE: Oh, my apologies, the IFP. The IFP, that's not the question of the proportionality, Mr Chair, I'm indebted to you, that's Section 23, I want to believe, (g).

&#9;The protection has always been there, by all organisations but more in particular to the IFP it was also there but not to the extent of killing and this is what the applicant has testified to. If this is what he has said then in essence he is saying to us: "I did that which was not sanctioned by the IFP" which would not sanctioned by the IFP that is the killing. So that takes him out of the realm of authority as expected in terms of Section 20.

&#9;Mr Chairman, the war situation, although I must say, refer to the remarks by the bench, particularly the bench to my right, that there was war in that area, the member said particularly in this area. I don't want to say there was no war but what I'm saying is, are we saying this was a reaction to a turbulence or a disorder that was taking place in that particular area. I may jump into Section 23, that is Sub-Section (b) where it says it must be reaction to a disorder to a - to mention those words. Are we saying because of knowledge that this was a war zone at that time when the applicant and his brother approached and killed the deceased, it was a time when there was war?

MR LAX: Mr Mpshe, I don't think we would and I don't think Mr de Klerk either would rely on that Section because that is a question of an imminent response, an immediate ...[intervention]

CHAIRPERSON: It's a sort of situation that Section 23(b) where somebody is at a rally or something of a political nature and the lid blows off and there's a problem and then he does some act in response to the prevailing situation around him. I think that's what that section is referring to rather than like an ongoing war that's been going on for a year and the last battle was two months ago but now we hear that somebody is bringing in guns, let's take that person out.

MR LAX: This scenario certainly, the present scenario wouldn't fit within that context because they planned it, they went out and did it. It was premeditated, it wasn't a matter a matter of simply reacting to a situation. While you're on the issue of proportionality, could you just consider the implication of what the evidence was to a certain extent in that the applicant may have been under his brother's control and other his brother's orders as the leader? From the judgement it's fairly clear that the brother played the dominant role, he actually pulled the trigger. Just bear that in mind, maybe you could just address us on that in particular to Section 20?

ADV MPSHE: Yes I would agree that the brother played a prominent role but if we connect this with Section 20, I want to believe it's on the aspect of the authority.

CHAIRPERSON: I think you - were you talking about proportionality or authority?

MR LAX: I was talking about, well in relation to proportionality, proportionality falls out the window to a certain extent if you're acting on an order or under command of someone else and it's in that context that I'm asking you around authority and command because at one level it may dispose of the proportionality argument, so it's just in that context. They are sort of interwoven in this particular scenario.

ADV MPSHE: To be fair to the applicant and to the question, I do concede and that is what the applicant also said that he was the leader and he gave commands and he ordered us to do whatever that needed to be done, I do concede to that, but I do not think the applicant was not in the position where he could disagree with the brother, more so that information was begotten and a meeting between the two of them ensued and if you think, if you talk of a meeting between two persons, it was this person, these people can negotiate and talk on certain issues on the same level. Perhaps the influence, if it may be referred to, influence of the brother could be put onto the action itself but insofar as the planning and all, it was only the two of them in the meeting. If their brother was so dominating, there won't even have been a meeting between the two of them. The brother would have said, look fine we've got this information now this is what we are going to do and you carry out that. But that is not the evidence, I don't know whether I've addressed this aspect.

&#9;Mr Chairman and Members of the Committee, on the question of the firearm, the intention as testified to by the applicant is that they wanted to give the firearm over to the leadership and to believe if this was the intention and if this was done, given to the leadership of the IFP, then one would be having no problem with the political objective insofar as this firearm is concerned, but the firearm is not even given to the leadership of the IFP. If the leadership of that piece told thereof at court fourteen months down the line, now can it be said that the firearm, the taking of the deceased's firearm was done also on behalf and in interest of the IFP, I think the answer will be in the negative. 

&#9;In conclusion, Mr Chairman and Members of the Committee, my submission is that this, even if there is no such evidence as correctly indicated that there was, there could have been a fight between the applicant and his brother and the deceased, but what is funny here is that the planning is done by two brothers in their own house at home, not involving anybody of the organisation, two blood brothers and it's the two blood brothers from the house who go out and carry out this execution. I find it very absurd. I don't say that he should have called the informer but one would have expected really in the circumstances that I want to tell what has happened, I going to tell the Amnesty Committee that this is what happened and this was my informer and my informer is here to can testify to that effect. We were just told about the informer but no evidence has been led in as far as the informer is concerned to endorse that actually this was done on behalf of the IFP, to protect the IFP. I think, Mr Chairman, that is all, unless the Committee would like me to refer to any other thing. Thank you.

CHAIRPERSON: Thank you Mr Mpshe. Mr de Klerk do you have any reply?

MR DE KLERK IN FURTHER ARGUMENT: One response, Mr Chairman, there is a matter and I know these sort of instances it's always a problem where these attacks that took place on a local situation, that is that there's problems in that area and persons from that area makes a decision to go and retaliate sometimes revenge and the question is usually asked, this is revenge, it's not political. All these matters, political motive is always intervened, so even in the circumstances where somebody’s brother was killed before the time, it was my experience that the mere killing of the other person was not merely revenge, it's still that war situation. 

&#9;I went through some of the previous decisions of the Committee and several of them the same situation applied where there was a localised decision where the people after being attacked decided that they're now going to retaliate, that means the group of IFP or ANC people. There is one specifically, that is the matter of Nsumela whose application 435/96. What happened there, there was also violence and then there was a meeting. Maybe not two people, there was a little bit more there at the meeting and there they decided that they must attack to curb the violence and then they attacked and killed somebody and their perception was that they were curbing the violence, stopping the violence.

&#9;Now we must have a look at this applicant's subjective situation. His brother is the youth leader, the position in that as we know it, especially in Natal, is that these leaders have a lot of power and they are not questioned. This is not the normal situation. Leaders especially in an organisation that is built on the structures and historic structures of the Zulu, it is not easy to question your leaders. Strong men and strong leaders are usually accepted with open arms and accepted as good leaders. So I disagree with this questioning of what the brothers should have decided that maybe it wasn't right or it was wrong. It is accepted, it is normal for these people to accept these sort of decisions if made by a leader, even if it's your brother. That's all I want to say about that.

CHAIRPERSON: Thank you Mr de Klerk. We will reserve our decision in this matter. I'd like to thank Mr Mpshe and Mr de Klerk for assisting us in this matter and a decision will be handed down as soon as possible. Mr Mpshe, I think with regard to the list of the victims, we have to specify the victims. You said that you had difficulty or the TRC had difficulty in tracing the deceased family but if we could nevertheless have all the information relating to the victims name and address etc if possible.

ADV MPSHE: Thank you Mr Chairman. The deceased family is known. He was single and the name that came forward is the name of the deceased's mother and her name is Buyeleni Joanah Ngobo. The address is just written as care of Umvuti, Mapumulo area.

CHAIRPERSON: ...[inaudible] 

ADV MPSHE: Indeed Mr Chairman and when the ...[intervention]

CHAIRPERSON: Umvuti in Mpumalanga area?

ADV MPSHE: Mapumulo area and when the initiators went there to serve the notice, it was established that she was no more there. After this incident she had moved out of the area for fear of her own life and nobody knows where she had fled to. This is very common in this area. Thank you Mr Chairman.

CHAIRPERSON: Thank you Mr Mpshe. 

CHAIRPERSON: Now what is the position with the next application? The application of Messrs Cuba, Syisi and Mgengo?

ADV MPSHE: Mr Chairman, the application is ready. The lawyer is here and the applicants are here and other victims are here. We are ready to kick off at 2 o'clock with that application. Unless Mr Chairman wants to kick off now?

CHAIRPERSON: I see that it's 12.40 and it might be a convenient time to take lunch but we needn't take it right through to 2 o'clock it would be better if we could start at 1.30 or even 1.15, as soon as you are ready after 1.15 as possible that we can get started on that other matter. Thank you, thank you very much. We'll then now take this opportunity to adjourn for the lunch adjournment and we will resume with the next matter on the roll as soon after 1.15 as is possible. Thank you.

COMMITTEE ADJOURNS

 

 

 

 

 

 

 

 

 

 

 

 

 

&#9;TRUTH AND RECONCILIATION COMMISSION

&#9;AMNESTY HEARING

DATE:&#9;&#9;21 OCTOBER 1998

NAME:&#9;&#9;MFUNDI SEYISI&#9;&#9;

APPLICATION NO: AM 6263/97

DAY :&#9;&#9;6

______________________________________________________

ON RESUMPTION

CHAIRPERSON: ...[inaudible] must be in possession of one of these devices. Mr Mbandazayo?

MR MBANDAZAYO: Thank you Mr Chairperson. Mr Chairperson I would like to start by saying the following that the applicants are applying for possession of limpet mines and also further to report the presence of the said weapon and my first applicant will Mr Seyisi, Mr Chairperson, and I will be pleased if he can sworn in.

CHAIRPERSON: Mr Seyisi, do you wish to take the oath or do you wish to make an affirmation?

MFUNDI SEYISI: (sworn states)

CHAIRPERSON: Mr Mbandazayo?

EXAMINATION BY MR MBANDAZAYO: Thank you Mr Chairperson. Mr Chairperson, the affidavit which we are going to use for the purposes of this matter starts from page 12 to page 16 Mr Chairperson. 

&#9;Mr Seyisi, do you confirm that the affidavit which is before the Committee was made by yourself and you stand by it's contents?

MR SEYISI: Yes I do affirm.

MR MBANDAZAYO: Mr Seyisi, can you tell the Committee who was Vuyani Namba and how did you come to know about him?

MR SEYISI:&#9;Vuyani Namba was brought by Comrade Ndoda Mgengo. He had actually come to help the Paso organisation as well as a member of the Paso Commissar, then we were told to stay with him. 

MR MBANDAZAYO: Mr Chairperson, I think the application should be APLA Commissar, not Paso Commissar.

CHAIRPERSON: Thank you Mr Mbandazayo.

MR LAX: Can you just repeat the name of the person who introduced him to you or brought him to you as you said?

Is it the third applicant, I'm sorry, I didn't hear it.

CHAIRPERSON: I think just confirm, the person was introduced him was you say Ndoda Mgengo, the third applicant in this matter.

MR SEYISI: Yes, it's Ndoda Mgengo.

MR MBANDAZAYO: Now Mr Seyisi can you then for the Committee, the last point, how did it happen that on the 30th November 1993 a limpet mine exploded in the municipality bus?

MR SEYISI: On the 30th November we woke up in the morning and left, that is myself and Robert, that is the name he used at that time, he wanted to show me Umbilo Police Station and that is where the limpet mine exploded in the bus.

MR MBANDAZAYO: Now you said to the Committee that he showed you the limpet mine, if I'm correct. Did you know how it operates yourself? How to operate a limpet mine?

MR SEYISI: No, I've go absolutely no knowledge as to how it functions or works.

MR MBANDAZAYO: Do you know how did it explode in the bus before you reached Umbilo Police Station?

MR SEYISI: I have no knowledge thereof.

MR MBANDAZAYO: That is all, Mr Chairperson, ...[indistinct]

NO FURTHER QUESTIONS BY MR MBANDAZAYO

CHAIRPERSON: Mr Nel, do you have any questions to ask the witness?

CROSS-EXAMINATION BY MR NEL: Thank you Mr Chairperson, yes indeed.

&#9;Mr Seyisi, according to your application for amnesty contained on page 11 of the bundle and I refer to paragraph 11(b), there must be some typing error or something left out because I'll read your answer to the question asked in that paragraph where you state:

&#9;"We acted on our"

I can only assume it must have been "our own" you can confirm that later if you want to.

&#9;"Furthermore, no order was given. Vuyani Mamba"

Also must have been a typing error

&#9;"came with limpet mine, we decided to use it"

Is that a true reflection of the position?

MR SEYISI: Could you please repeat your question, I don't think I understood it.

CHAIRPERSON: Sorry Mr Seyisi, do you have a copy of your application form in front of you?

MR SEYISI: Yes I've just received a copy.

CHAIRPERSON: If you take a look at question 11(b).

MR LAX: Does yours - is your pages as well?

CHAIRPERSON: Yes page 11, question 11(b). 

MR SEYISI: Yes I can see.

CHAIRPERSON: Now first of all, before we get to Mr Nel's question, as it stands there, the way it's been typed it doesn't really make much sense, it seems like a word has been left out, it says "We acted on our no order was given"

Now what Mr Nel suggests is that it's probably meant to read:

&#9;"We acted on our own, no order was given. Vuyani Mamba came" or it says come "come with limpet mine, we decided to use it."

Do you see that? What was that answer meant to be, was it "we acted on our own" or what were you trying to convey in that answer?

MR SEYISI: The explanation that I gave was that I knew Vuyani Namba as an APLA cadre and he gave us the limpet mine in the morning. As to whether he came with the limpet mine, we did not know that at first but as an APLA Commissar we knew that he would not go out to act on his own without any particular or specific instructions.

MR NEL: Is this sentence then incorrect: "We acted on our" did you have an instruction from the person, Mr Vuyani Namba, to assist him?

MR SEYISI: That is correct.

MR NEL: Do you know where he got his instructions from?

MR SEYISI: I've got no idea.

MR NEL: You did say in your evidence in chief that "we all woke up together", I take it that you left from wherever you had woken up that morning, together?

MR SEYISI: That is correct.

CHAIRPERSON: There Mr Seyisi, when you say "we woke up and we left" who was it precisely, who was it that left together? Yourself, Vuyani or Robert as he was referred to then, was it anybody else?

MR SEYISI: It was myself Vuyani as well as Xolani.

CHAIRPERSON: Xolani, is that the first applicant in this matter?

MR SEYISI: That is correct.

MR NEL: Where exactly did you leave from?

MR SEYISI: We were from Red Hill, that is where we stayed.

MR NEL: And do I understand it correctly that the three of you got onto a bus somewhere close to The Workshop?

MR SEYISI: Yes that is correct.

CHAIRPERSON: Just for record, you're referring to The Workshop, the shopping complex known as The Workshop?

MR NEL: That is correct, Mr Chairman, somewhere in the centre of town.

MR SEYISI: Yes that is correct.

MR NEL: And do I understand you correctly that you were heading to or heading for the Umbilo Police Station?

MR SEYISI: That is correct.

MR NEL: Now you also made a statement which is on page 65 of the bundle, if I may refer you to that, Mr Seyisi. Specifically if you look at firstly the second paragraph, according to the second paragraph, you went to The Workshop to buy a tracksuit? Is that correct?

MR SEYISI: No that is not correct. At The Workshop we went to board the bus, not to buy a tracksuit.

MR NEL: Well it says according to my papers here that, paragraph 2, fourth line up:

&#9;"I was looking to buy a tracksuit from one of the shops there. At about 10 o'clock I went to the bus rank in Pine Street opposite The Workshop"

Is that incorrect?

MR SEYISI: No, that is not true, that must have been a mistake.

MR NEL: The next paragraph, paragraph 3, you say:

&#9;"I got onto the bus and went to sit on the second seat from the back on the right hand side. While I was sitting I saw a fellow student Xolani Cuba"

who is the first applicant in this matter

&#9;"getting on the bus. Xolani also stays at 85 West View Road during school time. I cannot say whether he was with someone or alone. Xolani walked past me down the passage."

Now do I understand this correctly that you were not with these people or is this a mistake?

MR SEYISI: The truth is that we got into the bus, the three of us.

CHAIRPERSON: When you say we got on the - you mean to say the three of you together got on the bus at the same time?

MR SEYISI: Yes that is correct.

MR NEL: Is this statement then incorrect or is there some misunderstanding by Mr Boshof who took it down from you?

MR SEYISI: At the time that we made the statement I think these are the allegations that we made purposely because we didn't want to disclose the truth.

CHAIRPERSON: Yes I think just for the record, Mr Nel, that statement was taken according to the date contained on it, on the 3rd December 1993 in Durban by a Captain Boshof of the police.

MR NEL: Thank you Mr Chairperson.

&#9;Now Mr Seyisi do you know and excuse me if I pronounce this incorrectly, it looks like and I refer you to page 22 of the bundle 11(b) a Major Sikomiso Sumkiwe Noncuba.

MR LAX: You're referring to paragraph 13(a) of page 23 is that right Mr Nel?

MR NEL: No Mr Chairperson it's page 22, paragraph 11(b).

MR LAX: That's Komiso Sumpiwe Noncuba.

MR NEL: That's correct. My question is do you know this person?

MR SEYISI: I do not know him.

MR NEL: Well according to your fellow amnesty applicant, Mr Mgengo, this would have been the person who ordered him to assist you with the logistics of this matter. Have you got any idea of that?

MR SEYISI: No, I know nothing of that sort.

MR NEL: Mr Mgengo also says that he was, if I look at paragraph 9(a)iv on page 90, he talks about the target being Umbilo or Brighton Beach Police Station in Durban and then he further goes on the next page to say that my assignment was to assist them with all the relevant information and assist them with logistically and financially where need be, further to always become available, either personally or by telephone where need be. Do you know anything about this allegation?

MR SEYISI: The statement that you are reading from is not mine, I think that is not Mgengo's statement.

CHAIRPERSON: The question is, what's being put to you Mr Seyisi is that according to Mr Mgengo's statement he says that his assignment was to assist in this operation either personally or through the telephone, financially or logistically. The question is merely do you know whether that is so or if you don't know, you must just say so.

MR SEYISI: I have no knowledge thereof Mgengo brought this guy and explained whatever he had to explain and that was all.

MR NEL: Because according to Mr Mgengo, it seems from his amnesty application that he was to deal directly with you, Xolani Cuba and the person who died in the bomb blast, Mr Namba. That's according to his application but you bear no knowledge of such assistance logistically or financially as he states?

MR SEYISI: No I have no knowledge.

MR NEL: When did you become aware of the fact that Mr Namba had an MPM limpet mine?

MR SEYISI: On the morning of the day of the incident.

MR NEL: At the time, Mr Seyisi, what was your political affiliation?

MR SEYISI: I was a member of PASO. 

MR NEL: And when you travelled with this person on the bus carrying a limpet mine did you think of the consequences or did you realise what you were going to do?

MR SEYISI: The main objectives of APLA, an APLA cadres was to fight segregation as well as the previous government and I knew somehow that the limpet mine was going to be used for that job in particular.

MR NEL: And I take it that you also then realise that innocent people could either have been injured or killed in the use of this limpet mine?

MR SEYISI: No, a limpet mine is not designated or designed to injure people who were innocent but what happened is that it exploded prematurely.

MR NEL: I have difficulty with that answer because say for instance you planted this limpet mine at the Umbilo Police Station and a member of the public was in the police station complaining about a car accident or the cleaner was sweeping the floor, being an innocent person, did you not realise that would be - could have been one of the implications?

CHAIRPERSON: I suppose it depends, Mr Nel, on the limpet mine. Aren't they usually devices that can be timed, it depends where it was put, what time it was set off to go, if it was put on the police station it could be set of to go off to go at 3 in the morning or it could be - on the other hand it could be set off to go mid afternoon in a very busy place, we don't know that but perhaps if the witness can answer your question, see if he knew where it was to be set precisely and when it was to go off.

MR NEL: Thank you Mr Chairperson. 

&#9;Yes, do you know or did Namba tell you when this limpet mine was to go off?

MR SEYISI: I don't have any further knowledge, Namba knew everything because he was in control of the whole operation.

MR NEL: Was Namba trained in explosives?

MR SEYISI: I do not know.

CHAIRPERSON: Sorry, if I may just intervene. Mr Seyisi, did you see the limpet mine?

MR SEYISI: Yes I saw it on that particular morning.

CHAIRPERSON: Could you just tell me, give an indication as to how big it was? What did it look like?

MR SEYISI: It's about this size.

CHAIRPERSON: He's indicating the size by holding the two palms of his hands in a circular position indicating a diameter of about 20 centimetres. Sorry Mr Nel.

MR NEL: Thank you Mr Chairperson.

&#9;Did Mr Xolani Cuba know about the limpet mine when you left Red Hill would you be able to say?

MR SEYISI: I wouldn't have an idea because when it was shown to me I was all by myself, I was alone.

MR NEL: Was this still in Red Hill when you were shown the limpet mine?

MR SEYISI: That is correct.

MR NEL: You obviously know that a number of people were injured in the bomb blast apart from Mr Namba losing his life?

MR SEYISI: Yes I heard later on about the people who got injured.

MR NEL: Specifically the person whom I'm representing here, Miss Meyer, who was 15 at the time and at school. Due to that bomb blast she had to leave school and underwent major brain surgery to such an extent that she is badly effected by the operation, caused by the bomb blast, to such an extent that she today at the age of 19 cannot work.

MR SEYISI: I'm not aware of that fact.

MR NEL: I take it Mr Seyisi from your evidence with regards to your political objectives this was definitely not what you had in mind causing an injury to a person like Miss Meyer?

MR SEYISI: Yes I had already stated before that it was not meant for it to go off or to explode in the bus.

MR NEL: ...[inaudible] is to view any remorse or anything with regards to unnecessary injuries caused, but what is your position today with regards to the injuries of inter alia Miss Meyer and many other victims?

MR SEYISI: I could say that people like Miss Meyer happened to be caught in the crossfire, they were unintended victims of the whole operation because it was not intended or meant for them to be injured.

MR NEL: I have nothing further Mr Chairperson.

NO FURTHER QUESTIONS BY MR NEL

CHAIRPERSON: Mr Mpshe, do you have any questions to put to the witness?

CROSS-EXAMINATION BY ADV MPSHE: Yes Mr Chairman.

&#9;Mr Seyisi, will I be correct to state that the passengers in the bus were not the target but the police stations?

MR SEYISI: That is correct.

ADV MPSHE: Will I further be correct to state that the passengers in the bus whom we refer to as victims today were injured by mistake?

MR SEYISI: That is correct.

ADV MPSHE: And further that no political objective being attached to that incident?

MR SEYISI: What I can say is, there was a political objective, even though the limpet mine exploded prematurely and even though they were not the intended victims but we were members of APLA and we were soldiers of APLA on a certain or specific mission.

ADV MPSHE: Yes, we agree but what I'm saying is, in as far as the bus incident was concerned because that was not the target, that was not in the plan, that was an accident?

MR SEYISI: Yes they were not the targets.

ADV MPSHE: I want to if you've got a copy of the application, can you look at page 15, that is 15 of the bundle, paragraph 14. That's where you state the political objective envisaged was and then you enumerate them up to point 4. Do you see that?

MR SEYISI: Yes I do.

ADV MPSHE: Do you see that? Before I continue with the questions on this, what is meant by "misurrection", is it action under - or what does it mean?

CHAIRPERSON: If you take a look, do you have that copy before you Mr Seyisi?

MR SEYISI: Yes I do.

CHAIRPERSON: Just take a look at paragraph 14.1, the first line of 14.1 it says to embark on a campaign of misurrection -m-i-s-u-r-r-e-c-t-i-o-n. Now Mr Mpshe is asking what does misurrection mean?

MR SEYISI: That was a way or a technique of overthrowing the then government because at that time the PAC was still involved in the armed struggle so we were not permitted to operate.

CHAIRPERSON: I think it should probably be and I'm guessing, insurrection.

ADV MPSHE: I'm indebted to the Chair.

&#9;Now those points that I've mentioned Mr Seyisi up to 14.4, these political objectives, are these political objectives put in your application to justify the accidental explosion in the bus or the use of the limpet mine?

MR SEYISI: In line with the political objectives of the organisation.

MR LAX: No you haven't answered the question. The question was are these objectives used to justify the accidental explosion in the bus or the use of a limpet mine per se. He's not asking you whether those are the policies of the PAC.

MR SEYISI: The use of the limpet mine.

ADV MPSHE: Am I to assume that you'd mean the deliberate use of the limpet man as per plan, no so?

CHAIRPERSON: Perhaps instead of using the word "use" maybe the possession of the limpet mine. I mean they obviously didn't intend to use it to go off on their own lap or in their immediate vicinity, but they possessed it.

ADV MPSHE: Thank you Mr Chairman, that is fair I think to him as well, yes, thank you Mr Chairman.

&#9;That would mean that these are to justify the possession of the limpet mine, would you agree with that?

MR SEYISI: Yes that is correct.

ADV MPSHE: If you say yes, now let us analyse them one by one, having in mind possession of a limpet mine.

&#9;"14.1 To embark on a campaign of insurrection"

as corrected

&#9;"in the name of my political organisation to make the government authorities aware that we were not in favour of their policies."

How would mere possession eventuate this political objective?

CHAIRPERSON: Sorry, you maybe ...[indistinct] mislead it then by saying possession. I think it's quite clear that from what the applicant has said is that they possessed this mine and they were going to either Umbilo, well he mentions Umbilo Police Station, to use that mine, to put it on a building somewhere and let it go off. So it's not merely the possession but the possession with the accompanying intent to ultimately use it. I mean they weren't taking the limpet mine for a ride on the bus, they were taking it on a bus to get to a point so they could use it somewhere.

ADV MPSHE: Mr Chairman, if that's how the Chair puts it I would agree, I've no cause to gainsay that but my question was a follow up on what he says the possession thereof.

CHAIRPERSON: But that's what probably comes through my fault because you were first of all talking about the use of it and I thought that you were referring to it being used, going off prematurely and then I said maybe the possession but the possession with the accompanying intent to ultimately use it at a specified target.

ADV MPSHE: I take your point very well.

MR LAX: If I could just, I mean it's common cause is it not because limpet mine was intended for use, it's also common cause that it went off accidentally so the issue then becomes not the accident but what was their ultimate goal if you see what I'm saying and it's in that context that one can then see to justify it but I'll leave you to maybe put your questions and then take it from there.

ADV MPSHE: Can I just attend to this note?

&#9;Thank you, I follow that very well, I follow that very well. Turn to page 53 of the bundle. It is a statement made, is it under oath? Or allegedly made by Xolani Cuba particularly the first two lines thereof, I will read it for convenience. It says:

&#9;"On the 30th November 1993 I was going to school and left my home with Umfundo and Robert. When we reached town, Robert asked him to accompany them to Umbilo. We caught the bus from Pine Street terminal and Robert and I were sitting on the back seat, Umfundo was seated in front of us."

Do you see that?

MR SEYISI: Yes I do.

ADV MPSHE: Now how do you connect that with what you say on page 65, paragraph 3 as referred to by my learned friend?

MR SEYISI: I've already explained that I made or we made some statements just to get the matter over and done with, we were not necessarily telling the truth.

ADV MPSHE: And what follows Mr Chairman and Members of the Committee is not a question, I'm through with questioning but I just want to put it to him that one of the victims was in the bus, is in the hall right now and he has sent me a note indicating that his eyesight has been effected but more important that he says: "I forgive them as I am a Christian, I escaped death by the grace of God." He wanted this to be on record. Thank you Mr Chairman, that is all.

NO FURTHER QUESTIONS BY ADV MPSHE

CHAIRPERSON: Thank you very much Mr Mpshe and also thank you to the victim who put the note forward.

&#9;Mr Mbandazayo, do you have any re-examination?

RE-EXAMINATION BY MR MBANDAZAYO: Thank you Mr Chairperson, just a few points just to clarity, Mr Chairperson.

&#9;Mr Seyisi, am I correct to say that with regard to the statement you made to the police is that the statement you made to the police you made it with the intention that you did not want anything to be - you didn't want to be associated with the incident?

MR SEYISI: Yes that is correct.

MR MBANDAZAYO: Secondly Mr Seyisi, am I correct to say or correct me if I'm wrong, did you have any knowledge in the use of limpet mines?

MR SEYISI: I had no knowledge.

MR MBANDAZAYO: Did you know how was it going to be planted at the police station?

MR SEYISI: I do not.

MR MBANDAZAYO: Now can you tell the Committee why did you accompany this person because it's clear that there was no part - you were not going to take any part in the planting of this limpet mine?

MR SEYISI: At the time that I said I knew Robert as a member of APLA and myself being a member of PASO, we had to help each other with any operations that we had to undertake because it was our principle to help members of the APLA in whatever operation as long as it was in the furtherance of our respective political organisations so that we could gain liberation as a nation.

MR MBANDAZAYO: Thank you Mr Chairperson.

NO FURTHER QUESTIONS BY MR MBANDAZAYO

CHAIRPERSON: Thank you Mr Mbandazayo.

&#9;Mr Sibanyoni, do you have any questions to ask the witness?

MR SIBANYONI: Yes Mr Chairperson, just one question.

&#9;Mr Seyisi, in what way were you going to help Robert, what role were you going to play?

MR SEYISI: As a person who did not have any experience, I expected him to specify and tell me as to how I could help in the operation. He had to specifically tell me or instruct me.

MR SIBANYONI: Did he ask you to accompany him and mention that you were going to Umbilo Police Station?

MR SEYISI: He said to us we should go to Umbilo Police Station. He told me during the morning of that day of the occurrence, he also told me that he was going to plant the limpet mine, as to how I have no knowledge.

CHAIRPERSON: Thank you Mr Sibanyoni. Mr Lax do you have any questions to ask the witness?

MR LAX: Thank you Chairperson.

&#9;You said that "he said to us we should go to Umbilo." Who is "us"?

MR SEYISI: Myself and Xolani Cuba.

MR LAX: Where was that?

MR SEYISI: We were in Red Hill.

MR LAX: Was that before or after he showed you the limpet mine?

MR SEYISI: After showing us the limpet mine.

MR LAX: So he showed both of you the limpet mine? You said after showing "us" the limpet mine?

MR MBANDAZAYO: Mr Chairperson, I think it's in the application after he said shown "him" the limpet mine, not "them".

MR LAX: The interpretation we got was after showing "us" the limpet mine.

MR MBANDAZAYO: That's why Mr Chairperson, I'm saying this interpretation because it's thought he specifically referred to himself, not to them.

CHAIRPERSON: Yes I think we accept what you say Mr Mbandazayo and the best way was - when the limpet mine was shown to you, do you know where Xolani was?

MR SEYISI: He was in his room.

MR LAX: Thanks Chairperson. So Xolani was in his room and where were you and Mr Namba?

MR SEYISI: I was also in my room, he came to me to show it to me.

MR LAX: So he came to your room, he showed you the limpet mine. What did you do, did you look at it, did you ask him about, why did he even show it to you?

MR SEYISI: I looked at it and I asked him, he said we were going to accompany him to Umbilo.

MR LAX: What happened after that? He told you that, he showed you the limpet mine, what happened after that?

MR SEYISI: We stayed for quite some time or a while, thereafter we left. We went to board the bus.

MR LAX: Well before you would leave, how did Xolani know that he should come with you?

MR SEYISI: After he left I don't know where he went to, that is why I say we stayed for quite some time or a while, thereafter we left.

MR LAX: Sorry I don't understand your answer. Explain what you are saying to me?

MR SEYISI: Robert left my room.

MR LAX: And so you do not know where he went after that?

MR SEYISI: I do not know where he went thereafter.

MR LAX: Because you said "we" waited for quite some time?

MR SEYISI: What I meant was that we did not leave at that particular moment, we remained in the area for quite a while after having discussed the issue.

MR LAX: Yes. What I'm trying to understand is, he shows you the landmine, he says to you we're going to go and put this at Umbilo Police Station, he then leaves your room and then there's a delay of some time. He didn't discuss any other preparations with you at all?

MR SEYISI: No he never elaborated beyond the fact we were going to accompany him to the police station at Umbilo because he specifically said we were going to accompany them.

MR LAX: Yes. At the time he said you were going to accompany him was Xolani present?

MR SEYISI: I've already said he was in his room.

MR LAX: So when did he tell Xolani to accompany both of you, that's you and he?

MR SEYISI: I wouldn't know, but we left all of us.

MR LAX: You see your earlier evidence was that he told you and Xolani together that you were going to Umbilo. At some point you were together when he told you that. Now you're saying he told him separately from you. I'm a bit puzzled.

MR SEYISI: I was all by myself when he told me but I got the implication that he had told Xolani because we left all at the same time.

MR LAX: You see when I asked you about it, it was right in the beginning when I started asking you questions and I wanted to know about that and you were quite clear that you and Xolani and he were together when he told you you were going to Umbilo.

MR SEYISI: You might have misunderstood me.

MR LAX: Now you were not a member of APLA?

MR SEYISI: I was a member of PASO.

MR LAX: Yes but you haven't answered my question, you were not a member of APLA, yes or no?

MR SEYISI: No I wasn't.

MR LAX: Well when Mr Mpshe was asking you about these issues on your affidavit around paragraph 14 of that affidavit and whether that related to your objective in relation to the accident or in relation to the use of the limpet mine or the possession of the limpet mine, you said:

&#9;"We as members of APLA"

and then you went on to talk about that being an APLA operation. Was that a mistake on your part? Why did you say that?

MR SEYISI: May I please rectify this? Vuyani was a member of APLA. We were members of PASO, but we helped each other, that is PASO and the PAC.

MR LAX: You see, as my colleague asked you what assistance were you going to give this man and you can't give us any indication of what assistance you might be to him. You were totally untrained apart from accompanying him, there is no other possible assistance and even your accompaniment might have been a danger to him rather than an assistance to him?

MR SEYISI: We probably could have helped him when we reached the destination. The time had not arrived for us to help him when the bomb or the limpet mine exploded.

MR LAX: Well how would you have helped him, what possible help could you have given him?

MR SEYISI: As I have already explained before that he was going to tell us as to what sort of help he needed and we were going to render any kind of help that he would have required us to.

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

CHAIRPERSON: Thank you.

&#9;Mr Seyisi, when you got onto the bus did you sit next to Vuyani?

MR SEYISI: No.

CHAIRPERSON: Where did you sit in relation to him and can you also tell us where Xolani sat, where about did the three of you sit on the bus.

MR SEYISI: I was occupying the seat in front of theirs and they were sitting behind me.

CHAIRPERSON: In what was the limpet mine contained when you got onto the bus?

MR SEYISI: It was inside a bag.

CHAIRPERSON: Then when you say a bag do you mean a - what sort of bag, a plastic bag or a sports bag or a leather bag?

MR SEYISI: It was a small bag, it was a leather handbag. It was smallish not a very big handbag.

CHAIRPERSON: Do you know if that bag was opened and the bomb touched at all during the journey on the bus?

MR SEYISI: I did not necessarily see what happened because they were seated behind me.

CHAIRPERSON: When Vuyani Namba showed you the limpet mine at Red Hill did you see a detonator?

MR SEYISI: I did not see the limpet mine as a whole as he actually covered it or it was covered in whatever thing it was covered in, I don't know.

CHAIRPERSON: So you just got a brief glance at it?

MR SEYISI: Yes we just glanced at it.

CHAIRPERSON: Were you injured as a result of the explosion yourself?

MR SEYISI: Yes I was.

CHAIRPERSON: How serious were your injuries?

MR SEYISI: My right ear is - I suffer from a loss of hearing from my right ear and my right side as well.

CHAIRPERSON: Was that the first time that you had embarked on what we can call a military operation with an APLA cadre?

MR SEYISI: Yes it was the very first time.

CHAIRPERSON: And how old were you at the time, Mr Seyisi?

MR SEYISI: I was 21 years old.

CHAIRPERSON: Yes thank you. I believe Mr Lax has indicated he wants to ask you one further question.

MR LAX: Thanks Chairperson.

&#9;Mr Seyisi, just this bag interests me, you say it was a small leather bag. Where did the bag come from?

MR SEYISI: It was Xolani's bag.

MR LAX: Thank you Chairperson.

CHAIRPERSON: Thank you Mr Seyisi, that brings your testimony to a conclusion, you may stand down now.

WITNESS EXCUSED

 

 

 

 

 

 

 

 

 

 

&#9;TRUTH AND RECONCILIATION COMMISSION

&#9;AMNESTY HEARING

DATE:&#9;21ST OCTOBER 1998

NAME:&#9;XOLANI CUBA

APPLICATION NO: AM 3845/96

DAY :&#9;6

--------------------------------------------------------------------------

CHAIRPERSON: Mr Mbandazayo?

MR MBANDAZAYO: Thank you Mr Chairperson, I'm now calling Xolani Cuba to the witness stand.

XOLANI CUBA: (sworn states)

EXAMINATION BY MR MBANDAZAYO: Thank you Mr Chairperson. Mr Chairperson for the purposes of this hearing I'll use Mr Seyisi's affidavit.

&#9;Mr Cuba do you confirm that you have read Mr Seyisi's affidavit?

CHAIRPERSON: That is the affidavit that commences on page 12 of the papers?

MR MBANDAZAYO: Yes Mr Chairperson.

MR CUBA: Yes I do affirm.

MR MBANDAZAYO: And you understand it's contents?

MR CUBA: Yes I do understand.

MR MBANDAZAYO: And you also want it to be part of your affidavit as in as far as it relates to you?

MR CUBA: Yes I will not dispute that but whenever I come across anything that I do not know I'll point it out to the Commission or the Committee.

CHAIRPERSON: So what Mr Mbandazayo is asking you is do you confirm that insofar as this affidavit of Mr Seyisi relates to you, do you confirm that it is correct?

MR CUBA: Yes I do affirm.

MR MBANDAZAYO: Thank you Mr Chairperson.

&#9;Mr Cuba can you tell the Committee whether did you see the limpet mine when you were still in your residence with Mr Namba?

MR CUBA: I never saw the limpet mine.

MR MBANDAZAYO: Were you aware that Mr Namba had a limpet mine with him?

MR CUBA: Yes he had told me that he was in possession of a limpet mine.

MR MBANDAZAYO: At what stage did he tell you?

MR CUBA: I think it was on the 29th November in the afternoon.

MR MBANDAZAYO: Yes, what did he tell you was going to be the purpose what are you going to do with the limpet mine, why did he tell you about the limpet mine?

MR CUBA: He told me that since we knew each other he had been introduced to me earlier on by Ndoda, that he was an APLA cadre. He further told me that he was living in Durban. We were just carrying on some conversation and he told me that he was on a mission. He further explained to me that he was in possession of a limpet mine.

MR MBANDAZAYO: Did he tell you what was going to be his target?

MR CUBA: Yes he did. He said to me it could be Brighton Beach or Umbilo Police Station.

MR MBANDAZAYO: When did you become aware that it's going to be Umbilo Police Station?

MR CUBA: I was not sure that it was going to be Umbilo Police Station but the following day a we travelled, I did suspect that we were heading for Umbilo but I was not yet positive.

MR MBANDAZAYO: Mr Cuba, in your application for amnesty, page 5 at paragraph 10(b) you mention there in one of the paragraphs that "I never knew that he had such articles as described in annexure A until 30th November 1993 when it exploded in the bus we were travelling in. Now can you explain that to the Committee because you have just told the Committee that he told you that on the 29th November he told you that he had a limpet mine. What do you mean by that?

MR CUBA: What I wanted to point out was that I never actually saw the limpet mine but he had told me that he was in possession of a limpet mine.

MR MBANDAZAYO: Now Mr Cuba, it has been testified before this Committee that you were in the bus seated next to Mr Namba. Did you see him handling the limpet mine in the bus?

MR CUBA: No because I did not take any notice of anything that he did during the bus ride.

MR MBANDAZAYO: Did you suffer any injuries as a result of that explosion?

MR CUBA: Yes I sustained some injuries.

MR MBANDAZAYO: Thank you Mr Chairperson.

NO FURTHER QUESTIONS BY MR MBANDAZAYO

CHAIRPERSON: Thank you Mr Mbandazayo. Mr Nel, do you have any questions to put to the witness?

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

&#9;Mr Cuba, when you got on the bus at the Pine Street terminals, did you know where you were going to?

MR CUBA: Yes I knew.

MR NEL: Where were you going to?

MR CUBA: We were headed for Umbilo.

MR NEL: But, correct me if I'm wrong, I thought I heard you saying that you suspected that you were going to Umbilo? Were you suspecting that you were going to Umbilo or did you know?

MR CUBA: I said I knew that we were going to Umbilo but I was not sure as to whether he was heading or we were heading for the area where we were going to carry out the mission.

MR NEL: Well at the time did you know that you were heading for somewhere to carry out a mission?

MR CUBA: No at that time I did not know that we were going to carry out a mission.

MR NEL: Did you ask this person why you're going to Umbilo or why you had to accompany him to Umbilo?

MR CUBA: I never asked him because we were always talking and if you're not a member of APLA but you kept on asking a lot of questions, they would view you suspiciously.

MR NEL: It's for that very same reason, Mr Cuba, that I found it very strange that a member of the armed wing of the PAC would tell you that he's a trained cadre, would take you into his confidence, tell you about his missions, tell you that he's carrying a limpet mine. Are you not today trying to play down your role in this whole issue?

MR CUBA: I'm not running away from the part that I played but I'm not going to agree with anything that I do not know because I told you that as he had told me about this, he did not say that on that particular day we were going to carry out the mission. If that was so, he knew it but I did not know it. The fact that I did not ask him was because he would have viewed me with suspicion, that is my own opinion, I don't say it is so.

MR NEL: Could you please explain to us how this limpet landed up in your black bag?

MR CUBA: We had stayed with him for quite a few days, that is Vuyani. He used to use my bag whenever he went to town so he was using it at the time.

MR NEL: Were you staying with him or was he staying with you at Number 85, something View Street in Red Hill?

MR CUBA: I could say we were staying together because we were sharing a house.

MR NEL: Where did he come from with this limpet, do you know?

MR CUBA: I never enquired as to where he is coming from, he was introduced to us. We were told his name as well as what he had come to do, as to where he came from, I do not know.

MR NEL: In this very same black bag that was found on the scene, your passport was found in the bag?

MR CUBA: That is correct.

MR NEL: And the person who examined the bag, a Warrant du Preez, who according to his statement on page 100 in the bundle, who is an explosives expert, says in his expert opinion on the last paragraph:

&#9;"Ek vermoed dat die eienaar van die drasak direk betrokke is by die onploffing aangesien die stofprop verwyder moet word voordat die ontsteker kan aktiveer word."

Which seems to indicate ...[intervention]

CHAIRPERSON: Did the translator get that Afrikaans translation?

INTERPRETER: It will need to be translated into English.

CHAIRPERSON: Yes, I think if you could just, that portion that you read out in Afrikaans, Mr Nel, if you could give your own interpretation of that but it seems to say that in my opinion the owner of the bag is directly involved in the explosion because the detonator, because they found a detonator in the bag, the detonator which was found in the bag must be removed from the mine before it is activated, is that right? Before it can be activated.

MR NEL: Mr Chairperson yes, that is fairly correct except that the detonator stays in the limpet mine and it is covered with a dust cover, that is the "stofprop".

CHAIRPERSON: "Stofprop" the dust cover. Well if you give your own interpretation, I'm sure it will be better than mine.

MR NEL: Thank you sir. Mr Cuba, according to this explosives expert he says that:

&#9;"The person who fiddled or detonated this device would have had to remove the dust cover that covers the detonator in the bus because that cover was still found in the bag on the scene."

Now your evidence is that you know nothing about this limpet in the bag and you also did not see Mr, if it was him, the deceased Mr Namba, fiddling with the device?

MR CUBA: May I please just rectify you? I never saw him because I did not pay any attention or take any notice of what he was doing.

CHAIRPERSON: Are you saying Mr Cuba that he may have fiddled with the limpet mine but you just didn't see it?

MR CUBA: I would not deny that, he might have fiddled or interfered with it.

MR NEL: You sat right next to Mr Namba on the back seat of the bus?

MR CUBA: That is correct.

MR NEL: Do you recall him talking to a young white lady who also got on the bus and went to sit on the same seat and you and Mr Namba?

MR CUBA: I do not remember.

MR NEL: ...[inaudible] indicates on paragraph 3 of her statement:

&#9;"Die een wat agter gesit het, het my gevloek. Hy het vir my gese: 'go fucking sit in front'."

Do you know anything about that?

MR CUBA: I know nothing of the sort.

MR NEL: Well whoever said that saved Miss Meyer's life because on account of that she did go to the front of the bus and was only partially injured in the accident.

MR CUBA: ...[inaudible]

MR NEL: What I'm trying to say, Mr Cuba, is that we can most probably believe her statement when she says that because on account of those words uttered by either you or the deceased, she left the back seat and went to the front and if it had not been for those words, she would most probably have been also critically injured today or dead. You know nothing about those words being uttered?

MR CUBA: I've got absolutely no clue.

MR NEL: Now you did not make a statement but also you relied on the statement of your colleague, Mr Seyisi, but your statement if I refer you to paragraph 10 on page 4 of the bundle, when we get the question:

&#9;"State political objective sought to be achieved."

There is a one sentence answer there:

&#9;"To overthrow the white regime"

Now firstly, you were not a member of APLA?

MR CUBA: Yes I was not.

MR NEL: Were you a member of any organisation however small?

MR CUBA: I was a member of PASO.

MR NEL: Was it at any stage the policy of PASO, being a student organisation to overthrow the white regime?

MR CUBA: Yes, all the efforts of PASO or the structures that were under the PAC worked hand in hand with the PAC, that is to overthrow the government. If you still remember, that was the time where the PAC was highly active in politics and they were trying to overthrow the past regime and that is the time where PASO also had some slogans, they say PASO by day and APLA by night. It indicated how they worked hand in hand with APLA.

MR NEL: In conclusion, Mr Cuba, we have a detailed explanation by, I take it, the next applicant of where the order or instruction rather, to carry out this mission came from and more or less how it was to be done. Did you ever discuss this matter with your colleague Mr Mgengo?

MR CUBA: No, we never talked.

MR NEL: Did you know that Mr Mgengo was supposed to be your mainline organiser logistically wise and financially wise in carrying out this mission?

MR CUBA: No, I'm not aware of that.

MR NEL: Did Mr Mgengo ever discuss this matter with you?

MR CUBA: No he never did.

MR NEL: Was Mr Mgengo in Durban at the time of this incident?

MR CUBA: Which time are you referring to?

CHAIRPERSON: At the time of the incident at November 1993.

MR CUBA: No, he had gone to his place.

MR NEL: Where was his place?

MR CUBA: Umtata.

CHAIRPERSON: Sorry Mr Nel, just to interrupt, is it correct that you and Mr Seyisi and Mr Mgengo were all students at the M.L. Salton College?

MR CUBA: That is correct.

CHAIRPERSON: And was it that time of the year when the academic activities at the college were coming to an end?

MR CUBA: Yes that is correct, we had just written our final exams.

CHAIRPERSON: Yes, sorry Mr Nel?

MR NEL: Thank you Mr Chairperson. 

&#9;I take it that Mr Mgengo was a trained member of APLA?

MR CUBA: I wouldn't know because I met him in school and he was a member of PASO at that time.

MR NEL: And lastly, you say before Mr Mgengo went back to Umtata, before the 30th November 1993, he never discussed this matter regarding the limpet, regarding the mission with you?

MR CUBA: That is correct, he last introduced Vuyani to us.

MR NEL: Thank you Mr Chairperson, I've got no further questions.

NO FURTHER QUESTIONS BY MR NEL

CHAIRPERSON: Thank you Mr Nel. Mr Mpshe, do you have any questions to ask the witness?

CROSS-EXAMINATION BY ADV MPSHE: Yes Mr Chairman, thank you.

&#9;Mr Cuba, is it correct that PASA and APLA were official structures under PAC?

MR CUBA: That is correct.

ADV MPSHE: Will it be further correct that operations of PASO and those of APLA differed, that is their activities?

MR CUBA: Yes I do agree.

ADV MPSHE: Will you further agree with me then that it is APLA, that is recognised by PAC to carry out operations like planting of limpet mines, attacks and the rest, that is within their powers, is that correct?

MR CUBA: Yes that is correct, that was so.

ADV MPSHE: And further that PASO did not have the power or did not have the jurisdiction of planting limpet bombs making attacks and the like because this was a student organisation?

MR CUBA: That is so.

ADV MPSHE: Wouldn't you agree with me therefore that any political justification that can be advanced by APLA cannot be advanced by PASO because the modus operandi differed?

MR CUBA: The PAC structures work hand in hand in whatever operation that they undertake.

ADV MPSHE: Yes but I'm saying a political objective that may be advanced by APLA for it's physical operations, planting of bombs and other things cannot be advanced as well by PASO because it was not in the jurisdiction of PASO to do those things?

MR CUBA: I do agree with you on that point.

ADV MPSHE: Therefore the political objective that's going to be advanced here, if it will be, by an APLA member cannot be applicable to a PASO member, will I be right?

MR CUBA: I will not agree with you on that aspect because I don't understand your statement but what I want to say is as members of PASO, we were PASO way back then but what we wanted to do was to ensure that we work with structures that fell under the PAC in order to render this country ungovernable.

ADV MPSHE: Mr Cuba, I'm not arguing with you as far as that is concerned, I know you two help one another but the physical activities were carried by different organisations?

CHAIRPERSON: I think this is quite legalistic, it might be a matter that should be rather raised in argument. You can ask him, I'm not preventing you asking him but it seems to be quite legalistic. I mean if you were an ordinary member of a political party assisting a trained cadre, then because he's not a trained cadre and not a member of the military wing himself is getting quite legalistic to separate his motivation from the person who he is assisting merely because of his belonging to another structure within the main liberation movement. It's getting very legalistic but I understand the thrust of your argument but it's quite legalistic.

MR LAX: Mr Mpshe, is it not common cause that they went along to help this guy although how that was going to happen they may not have known at the time but they in essence associated themselves with his activities and isn't that really the sort of gist of the matter?

ADV MPSHE: Yes, but making use of the word associated themselves, I'll rest my matter. No further questions, thank you.

NO FURTHER QUESTIONS BY ADV MPSHE

CHAIRPERSON: Thank you. Mr Mbandazayo, do you have any re-examination?

MR MBANDAZAYO: None Mr Chairperson.

CHAIRPERSON: Mr Sibanyoni, do you have any questions to ask the witness?

MR SIBANYONI: No questions Mr Chairperson.

CHAIRPERSON: Mr Lax, do you have any questions to ask the witness?

MR LAX: Just one question, Chairperson.

&#9;Your colleague that testified before you told us in his evidence that Mr Namba told you you were going to the police station?

MR CUBA: As I have already explained, he did tell me that he had two targets, that is Brighton Beach and Umbilo Police Station.

MR LAX: Now his evidence was that when you left the house that day, from Red Hill, to board the bus to go into town, both of you knew you were going to the Umbilo Police Station, that was his evidence, categorically. So you couldn't have had any space to suspect that you might be going there, you knew you were going there.

MR CUBA: I knew that we were going to Umbilo but I disagree with the fact that he told both of us because I knew it the night before that I was supposed to accompany him to Umbilo.

MR LAX: So he didn't tell you on that day, he told you the night before?

MR CUBA: Yes he told me the night before.

MR LAX: And if you were going to accompany him to Umbilo, what would be the purpose of such accompaniment?

MR CUBA: He never told me or explained.

MR LAX: Well did he not tell you that in the context of telling you about his activities and what his operation was and why he was there as you told us he told you?

MR CUBA: Yes he told me as to why he had come but he did not point out that at the very same time we were going to Umbilo. He only told me about the Umbilo issue at a later stage. 

MR LAX: So when did you first meet this man, how soon before this incident?

MR CUBA: I don't remember but it was a few days I think, it could have been four or five days. It was less than a week.

MR LAX: And you were introduced by the next applicant, Mr Mgengo?

MR CUBA: Yes that is correct.

MR LAX: And what did he introduce you to Mr Namba as, what did he say he was, how was he introduced to you in other words?

MR CUBA: He told us his name as well as our names to him. He told us that his name is Robert and that he was an APLA member. He had come to Durban to help the PAC and other organisations that fell under the PAC, so he wanted us to help him whenever he needed help.

MR LAX: When did Mgengo leave for Umtata?

MR CUBA: I don't remember but I should think it was two days before the incident.

MR LAX: Did he come and tell you he was leaving for Umtata?

MR CUBA: Yes he did.

MR LAX: What else did he tell you? Did he say to you I'm going to be at a certain address or here's my phone number or when am I coming back or what else did he say? Did he say he'd see you after the holidays, what?

MR CUBA: No he never told us anything.

MR LAX: He just said "I'm leaving"?

MR CUBA: That is correct.

MR LAX: He didn't give you his phone number where you could contact him?

MR CUBA: He never did.

MR LAX: Thanks, Chairperson.

CHAIRPERSON: Yes thank you. Thank you Mr Cuba, that brings your testimony to a conclusion. You may stand down now.

WITNESS EXCUSED

 

 

 

 

 

 

 

TRUTH AND RECONCILIATION COMMISSION

&#9;AMNESTY HEARING

DATE:&#9;21ST OCTOBER 1998

NAME:&#9;NDODA MGENGO

APPLICATION NO: AM 6386/97

DAY :&#9;6

--------------------------------------------------------------------------

CHAIRPERSON: Mr Mbandazayo?

MR MBANDAZAYO: Thank you Mr Chairperson, my next applicant is Mr Mgengo, Ndoda Mgengo.

NDODA MGENGO: (sworn states)

EXAMINATION BY MR MBANDAZAYO: Thank you Mr Chairperson. &#9;Mr Mgengo, the two applicants testified before this Committee and told the Committee that you brought to them Vuyani Namba. Now I want you to tell the Committee how come did you bring Vuyani Namba to them and why was he brought to Durban?

MR MGENGO: I'll start off by saying even though I was a student in Durban, I was also a member of APLA. Secondly, I was able to communicate with structures and members of APLA when they wanted me to do so. I received a message or I can say instructions specifically from one of the commanders of APLA that I should go from Durban to Umtata with the aim and purpose to finalise the arrangements which were already at an advanced stage that members of APLA should carry out an attack on one of the police stations that is in Durban. I went to Umtata as per instruction. I was given further instructions to the effect that I should go back to Durban. 

&#9;I went back to Durban. Per his instruction I phoned back in Umtata. I received an instruction or was notified that Vuyani had been sent to Durban and I had to go pick him up. I went to pick Vuyani up. As we had already arranged before, I took him to my place. That is where I was living with Xolani Cuba and Mfundi Seyisi. There isn't much that I had to discuss with Mfundi and Xolani with regard to the matter but I introduced Vuyani as a member of APLA as it was so. He was on a special mission. I think I am through.

MR MBANDAZAYO: Can you tell the Committee who was this commander who called you to Umtata you talked to?

MR MGENGO: It was Comrade Sikumiso Ngonumba.

MR MBANDAZAYO: Where in Durban did you pick up Vuyani Namba?

MR MGENGO: At the station.

MR MBANDAZAYO: Now can you tell the Committee what happened thereafter, after you have arrived at where you were staying with the other two applicants, what did you do with the exception of introducing him to them and them to him?

MR MGENGO: As we were not staying in our own place it was -or the owner of the house instructed us that whenever we have visitors we should bring them to him and introduce them so that whenever were not within his premises he should know that whoever was there was permitted to be there because he was with us. After I had introduced Xolani I went to speak to the owners of the house, that is the landlord as well as the landlady. I explained to them that we have a visitor. It was imperative that I did not tell him as to why the visitor was there. I explained that the visitor was going to stay for quite a while because he had come to look for a school for the following academic year. I told them his name. There was no problem thereafter, he remained with us.

MR MBANDAZAYO: Did you know that Vuyani, did he bring any weapons with him when he came to Durban?

MR MGENGO: Yes he did bring some weapons.

MR MBANDAZAYO: Did you know what type of weapons, can you tell the Committee if you know about them?

MR MGENGO: Yes there were explosives or limpet mines or a limpet mine.

MR MBANDAZAYO: Was that the only weapon that he had?

MR MGENGO: Yes, according to my knowledge he had one limpet mine.

MR MBANDAZAYO: Now can you tell the Committee about the planting of the limpet mine at Umbilo Police Station or the other police station, did you know about those plans and how did you know about it, were you part of that planning and what role did you play?

MR MGENGO: Yes, the planting of the limpet mines was not my job description. I think the person who was going to plant it was responsible for it and he knew where and how to plant it but my duty ...[intervention]

CHAIRPERSON: Sorry, Mr Mgengo, I think the question was, that Mr Mbandazayo put to you was were you aware of the plan that the limpet mine would be placed at the Umbilo Police Station. Were you aware of that operation?

MR MGENGO: Yes I was.

MR MBANDAZAYO: Were you part of the plan of the placing of the limpet mine at Umbilo Police Station?

MR MGENGO: Yes I did have a role that I had to play because I had to ensure that Vuyani Namba is a soldier or an APLA cadre and any other soldier who was going to be brought would be welcomed or received without any disturbance with regards I could say there had to be sufficient security and to ensure that the atmosphere was conducive for him to be able to carry out the mission successfully. There were people who knew as to where he stayed but at the same time I had to ensure and see to it that whatever he needed was within reach. I also had to see that he gets all the information that was necessary for him to be able to carry out the mission either from the commanders or from the structures of the PAC.

&#9;With regard to finance I had to ensure that I carried out all those duties. If he wanted any assistance that I could myself render, I had to see to it that he does receive such assistance.

MR MBANDAZAYO: Mr Mgengo, did you know that on the 30th November 1993 Mr Namba was going to plant a limpet mine at Umbilo Police Station and how did you know about it?

MR MGENGO: Yes I knew, I had earlier pointed out that. Vuyani and myself were constantly communicating.

MR MBANDAZAYO: How did you communicate?

MR MGENGO: Per phone.

MR MBANDAZAYO: Now it is known to this Committee that at the time of this incident you were not around Durban. Now when did you last communicate with him with regard to the planting of this limpet mine at Umbilo Police Station?

MR MGENGO: I last spoke to him a day before the planting or the intended planting of the limpet mine, that is the day the member of APLA and Mfundi were on their way to Umbilo.

MR MBANDAZAYO: Did he tell you - what did you talk about by telephone?

MR MGENGO: We didn't say much to each other except for him to inform me that the preparations were at an advanced stage and he promised to phone me the following day to fill me in as to how the operation went and he stated that the following day they were going to go out to carry the mission.

MR MBANDAZAYO: Did he phone you the following day?

MR MGENGO: He was not able to because he died.

MR MBANDAZAYO: Thank you Mr Chairperson, that is all.

NO FURTHER QUESTIONS BY MR MBANDAZAYO

CHAIRPERSON: Thank you Mr Mbandazayo. Mr Nel do you have any questions to ask the witness?

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

&#9;Mr Mgengo, this person who died in the incident, was he from Durban or was he situated in Umtata?

MR MGENGO: He was from an area called Xala but we met in Durban.

MR NEL: Did he know Durban at all?

MR MGENGO: I'm not sure as to whether he did, I cannot confirm as to whether he had come to Durban before or not.

MR NEL: Why was it necessary for you to introduce him to your fellow applicants who have testified here today?

MR MGENGO: So that if I was not present or I was not within reach, the other people that I had introduced him to would help him whenever he needed any help. Even besides that it's part of humanity to introduce a person to others who you work with.

MR NEL: Do I understand you correctly that in your absence these two gentlemen could assist them in carrying out the operation, for instance a simple matter like how to get to Umbilo on a bus?

MR MGENGO: I said the help that he could have required he would have received from the two that I introduced him to.

MR NEL: You did say that when you introduced Vuyani to Mr Seyisi and Mr Cuba you did not have much to discuss. What did you discuss?

MR MGENGO: Mfundi and Xolani, I think the relationship between us comes a long way. We've been together in PASO and there was nothing that I had to discuss with them with regard to an APLA operation because they were not APLA members.

MR NEL: Mr Mgengo, you are sent from Durban to finalise a very advance staged plan, you then bring Vuyani to two people in Durban who would assist them in your absence and you say you didn't have much to discuss with them?

MR MGENGO: What I'm trying to convey to you is that there was some co-operation between APLA and PASA, a high level type of co-operation in such a way that PASO was a banker of APLA, that's how we were able to get members. Some of them are playing a very important role in the present political situation. For instance Major General Xundu was member of PASO. I was also a member of PASO. There wasn't much I could talk to Xolani with regard to the operation besides the message that we should co-operate or they should co-operate and work together with the person that I introduced to them.

MR NEL: That is what I'm trying to establish. What exactly was the message you as a role player from APLA giving the message to the role players from PASO in the form of your two colleagues applying to amnesty here with regard to the mission because your two fellow applicants seem to know or seem to indicate that they know very little about this total mission, the whole mission?

MR MGENGO: There isn't much that I can say besides to reiterate and say that Xolani and Mfundu didn't have much role with regard to the planting of the bomb, the limpet mine, but what was required of them was to co-operate with that particular member of APLA who was on a special mission to plant the limpet mine.

MR NEL: Did you ask Mr Seyisi and Mr Cuba to co-operate with Vuyani who is on a special mission to plant a bomb?

MR MGENGO: I've already said there is nothing to discuss with Xolani Cuba and Mfundu Seyisi with regard to the planting of the bomb because the main person whose duty it was to plant the bomb was Vuyani. They were going to help him insofar as he needed or required to be helped.

MR NEL: The question was, did you ask Mr Seyisi and Mr Cuba to assist Vuyani in his special mission to plant a bomb, whatever assistance he needs, whether it was just to accompany him, whether it was to check for traffic or whether it was to check whatever, did you ask them to assist him in his mission to plant a bomb?

MR MGENGO: I never did.

MR NEL: What did they think they were going to accompany him for to Umbilo?

MR MGENGO: I had already said that the person who is going to plant the bomb was Vuyani Namba. If he said Xolani and Cuba should accompany him, I do not know, I cannot shed any light because I was not present at that time.

MR NEL: I find it difficult to understand that as the logistics officer and the political commissar, you introduced to people who were scrutinised, I assume, to assist somebody in planting a bomb and you don't even tell them that this person is going to plant a limpet mine. Is that how you operated?

MR MGENGO: According to my knowledge we worked on a need to know basis.

MR NEL: How was Mr Seyisi and Mr Cuba selected to assist in this mission?

MR MGENGO: I had already pointed out that the relationship between myself, Mfundu and Xolani especially with regard to matters of the PAC as well as PASO matters. I also mentioned earlier on that we had some connections, we worked together, that is members of PASO and members of APLA so as I knew them personally and as a person who stayed with them and we shared the same residence, I felt that they were fit members who could help out and they were potential members of APLA.

MR NEL: Yet once again, your trust in them was such that you thought they were potential members of APLA but still they know nothing about the mission at all according to your evidence?

MR MGENGO: I think that this doesn't depend only upon not trusting them or their trustworthiness but details with regard to the APLA movement were not discussed openly, we worked only on a need to know basis so if we thought that there was no need for a person to know more, we did not volunteer information.

MR NEL: Mr Chairperson, if you could just bear with me for a second? I've nothing further Mr Chair.

NO FURTHER QUESTIONS BY MR NEL

CHAIRPERSON: Thank you Mr Nel. Mr Mpshe do you have any questions to ask the witness?

ADV MPSHE: Mr Chairman, I have no questions thank you.

CHAIRPERSON: Thank you Mr Mpshe. Mr Mbandazayo, do you have re-examination?

MR MBANDAZAYO: None Mr Chairperson.

CHAIRPERSON: Mr Sibanyoni, do you have any questions to ask the witness?

MR SIBANYONI: No questions Mr Chairperson.

CHAIRPERSON: Mr Lax?

MR LAX: No questions.

CHAIRPERSON: Yes thank you, Mr Mgengo, that's the end of your testimony, you may stand down.

WITNESS EXCUSED

CHAIRPERSON: Mr Mbandazayo?

MR MBANDAZAYO: Mr Chairperson that's the applicants' case.

CHAIRPERSON: Thank you. Mr Nel?

MR NEL: Thank you Mr Chairperson, I'm not leading evidence in this matter.

CHAIRPERSON: Mr Mpshe?

ADV MPSHE: Thank you Mr Chairman, I'm not leading any evidence in this matter but perhaps Mr Chair, if the Chair allows, I have a second note from another victim I would like to read it onto the record?

CHAIRPERSON: Yes certainly.

ADV MPSHE: Mr Chairman, this is a note by Jabulisile Mkhize J-a-b-u-l-i-s-i-l-e Mkhize. Jabulisile Mkhize is the daughter to one of the victims, her mother died later on after this incident and she states the following. The mother was Grace Mkhize listed as one of the victims but she is deceased. She says:"I forgive them. If I don't, will my mother come back? No. We have to learn to forgive though losing my mother was very traumatic for all of us. We are five children. May the perpetrators build the nation that they once destroyed."

Thank you Mr Chairman, that is all.

CHAIRPERSON: Thank you and thank you to Miss Mkhize for that. Just some information that's not patent from the document. I gather from the tenor of the note that Jabulisile's mother Grace died but was that death as a direct result as injuries received in the explosion on the bus?

ADV MPSHE: Mr Chairman, I have not been in a position to can establish that, but that can be established very soon because she is within the hearing.

CHAIRPERSON: Yes thank you. Yes what remains now is submissions. Are you prepared to make your submissions now?

MR MBANDAZAYO: Yes Mr Chairperson.

CHAIRPERSON: Mr Nel?

MR NEL: Yes Mr Chairperson.

ADV MPSHE: Yes Mr Chairperson, perhaps after just a short break, it's so terribly hot in here Mr Chairperson.

CHAIRPERSON: We'll take a very short break and then the legal representatives will present their argument to the panel. If you could call us as soon as you're ready gentlemen, we'd appreciate that, thank you.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Mr Mbandazayo?

MR MBANDAZAYO IN ARGUMENT: Thank you Mr Chairperson.

&#9;Mr Chairperson, I will start by quoting Section 20, Sub-Section 1 of the Act which provides as follows:

&#9;If the Committee after considering an application for amnesty is satisfied that an application complies with the requirements of the Act, the act, omission or offence to which the application relates to, an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provision of Sub-Section 2 and 3 and the applicant has made full disclosure of all relevant facts, it shall grant amnesty in respect of that act, omission or offence.

&#9; Section 20, sub-section 2 provides: In this Act unless the context indicates otherwise, acts associated with political objective means any act or omission which constitutes an offence or delict which according to the criteria in sub-section 3 is associated with political objectives and which was advised, planned, directed, commanded or committed within or outside the Republic during the period of 1st March to the cut off date by any member or supporter of a publicly known political organisation or liberation movement on behalf of or in support of such organisation in furtherance of political struggle, which by such organisation against the State. Any of member of a publicly known political organisation in the course and scope of his duties and within the scope of his express or implied authority. Any person referred to, paragraph (d) who on reasonable grounds believed that he was acting in the course and scope of his duties within the scope of his express or implied authority.

&#9;Mr Chairperson, I submit that the applicants have complied with the requirements of Section 20, sub-section 1 and sub-section 2, that they were quite clearly acting on behalf of APLA a publicly known political organisation and liberation movement which was engaged in a political struggle against the State at the time.

&#9;Mr Chairperson, I also submit that the applicants did not act for personal gain or out of personal malice or ill will or spite directed against the victims. It is quite clear, Mr Chairperson, that they had no personal knowledge of the people and that they were merely sent by APLA, they were merely sent to assist a member of APLA in their operation.

CHAIRPERSON: No that's the first and second applicants. Yes I think the third applicant he had a deeper knowledge of the nature of the operation and although he didn't participate on the ground activity, he assisted in the preparation thereof.

MR MBANDAZAYO: Thank you Mr Chairperson. Yes, Mr Chairperson, with regard to the first two applicants Cuba, Seyisi and Cuba, Mr Chairperson, definitely they assisted Mr Chairperson and a member of APLA and of course Mr Chairperson the target, although they did not reach the target unfortunately it ended up killing and maiming other people and killing one of them Mr Chairperson. Mr Chairperson, with regard to the third applicant, it's clear Mr Chairperson that he participated fully in the operation, he was aware, he was the person who knew how this member of APLA came to Durban and he knew about the mission though he did not participate Mr Chairperson. Also that Mr Chairperson he told this court, this Committee Mr Chairperson, that the person who ordered, who instructed him to assist though he was a member, he was a senior member of APLA Mr Chairperson, though of course Mr Chairperson, I did not elicit that, just for the record, Sikumiso Ngobo, Mr Chairperson, he died in a car accident I think it was 1996 if I'm not mistaken Mr Chairperson. A Member of the Committee, Mr Ilan Lax maybe can help me.

MR LAX: I can confirm we've heard testimony to that effect in other hearings. I can't remember the exact precise date but it is correct. Other witnesses have testified to that effect.

MR MBANDAZAYO: Thank you Mr Chairperson and that Mr Chairperson is not disputed that he was a high-ranking member of APLA, a member of the high command and he was in a position to give orders to other cadres, Mr Chairperson. 

&#9;Mr Chairperson, with the testimony of the applicants, there's nothing to contradict what they have put before this Committee, that what they have told the Committee is not the truth and the whole truth about their participation regarding that fateful day and the knowledge of the particular weapon which is the limpet mine which exploded on the day in question and therefore, Mr Chairperson, it is my respectful submission and I ask this Honourable Committee to grant the applicants the amnesty as they have complied with all the requirements of the Act, Mr Chairperson, unless the Committee wants me to address it on a specific point. That's all.

CHAIRPERSON: Thank you Mr Mbandazayo. 

CHAIRPERSON: Mr Nel do you have any submissions?

MR NEL IN ARGUMENT: Thank you Mr Chairperson. Once again I just want to state that I act on behalf of one of the victims, Miss Meyer, who is present at these or had been present at these proceedings. My instructions from her and also her mother who is also here today is that they do not oppose the application for amnesty by the three applicants and in the spirit of reconciliation they have also, like the other persons who indicated to my colleague Mr Mpshe, forgiven the three applicants for what has happened, but I have been asked to add that it is with regret that we note that none of the applicants expressed their remorse for what happened to thirteen innocent people who as the first applicant stated who were unfortunately in the crossfire and we know it's not a requirement of the Act for the people to say I'm sorry, but as I said in the spirit of reconciliation it's with regret that we note that none of that was forthcoming. Thank you Mr Chairperson.

CHAIRPERSON: Thank you Mr Nel. 

Mr Mpshe do you have any submissions to make?

ADV MPSHE IN ARGUMENT: Thank you Mr Chairman, Members of the Committee. Mr Chairman and Members of the Committee, my learned friend Mr Nel and I are paddling the same canoe and I've no address to make.

CHAIRPERSON: Mr Mbandazayo, do you have any reply?

MR MBANDAZAYO: Thank you Mr Chairperson. Except with the question of remorse, Mr Chairperson. I know that it's not a requirement of the Act but of course Mr Chairperson, I've discussed with the applicants about this matter, Mr Chairperson. They - we were of the view that they will be - I was going to approach the legal representative of the families, they wanted just to talk to them separately about his matter.

CHAIRPERSON: Yes they can certainly do that privately and if it's done and there is some accord between them and then that would be a very good thing if it could come about.

MR MBANDAZAYO: Thank you Mr Chairperson, that is what we were intending to do Mr Chairperson, we wanted to talk to them separately about the whole incident.

CHAIRPERSON: Thank you, Mr Mbandazayo. Thank you, we will reserve a decision, it will not take long to make a decision in this matter but I prefer to hand down a written decision than give extempore matters. 

&#9;Mr Mpshe, sorry there's also the question, I almost forget it, we will require for purposes of the decision the identification of all the victims as well as, if possible, their addresses for purposes of referring their names to the Reparations Committee of the TRC. So Mr Nel, if you could give details of the person you represent to Mr Mpshe and if Mr Mpshe could please compile a list for us of the victims and I think in the case of the Mkhize, I think if Mrs Grace Mkhize died as a result of the bomb blast then the victims will be her next of kin.

ADV MPSHE: Mr Chairman, on the issue of Mrs Grace Mkhize the deceased, the daughter has confirmed that she was hospitalised for three months, discharged but thereafter she could not make it and in fact she died as a result of this incident.

CHAIRPERSON: So then the next of kin of Mrs Mkhize, Mrs Grace Mkhize will be regarded in terms of the Act as being victims of this incident.

ADV MPSHE: That is correct, Mr Chairman. Mr Chairman may I for purposes of the names of the victims without addresses, may I apply that the contents of page 14 of the papers, this I've checked and confirmed, Mr Chairman, be incorporated in the record as people or victims who were injured in the bus? I will further make a commitment that when the addresses are made available, this will be conveyed to the relevant authorities, but for purposes of the record, contents of page 14 contains names of all victims, Mr Chairman. May that be incorporated?

CHAIRPERSON: That's eight of them.

MR LAX: There's a couple more at the bottom as well.

CHAIRPERSON: Yes, there's some down at the bottom. But then I doubt whether this will, when I say doubt it may be that this doesn't - you see this includes Grace Mkhize who is obviously a victim but not for purposes of reparation, it should be her next of kin.

ADV MPSHE: That is so Mr Chairman.

CHAIRPERSON: Her daughter and of course if her daughter's got brothers and sisters, them as well.

ADV MPSHE: Yes Mr Chairman, she will be included and we will get more information as to whether there's an elder sister or brother and this will be conveyed.

CHAIRPERSON: Thank you Mr Mpshe and then I'd appreciate that if that could be forwarded to me as soon as possible.

ADV MPSHE: That will be done Mr Chairman. Thank you.

CHAIRPERSON: Thank you. I'd then like to thank the legal representatives, Mr Mpshe, for their assistance in this matter and we will now adjourn.

COMMITTEE ADJOURNS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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