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

&#9;AMNESTY COMMITTEE

DATE:&#9;3RD NOVEMBER 1999

NAME:&#9;MFANELO DAN MATSHAYA

DAY:&#9;&#9;3

--------------------------------------------------------------------------CHAIRPERSON: Good morning everybody. I am Judge Pillay and I want to ask my colleagues and the various representatives, to do the same and announce themselves on the record, for the purposes of identification on the record.

JUDGE POTGIETER: My name is Denzil Potgieter.

ADV SIBANYONI: I am J.B. Sibanyoni, a member of the Committee.

MR MAPOMA: I am Zuko Mapoma, the Evidence Leader.

MR MGXAJI: I am Sitembele Mgxaji, representing the victims, specifically the Mapipa family.

MR MALUSI: I am Tembekile Malusi, representing the victims with regard to the death of the APLA 5 in Port St Johns.

MR MGIDLANA: I am Tanwasika Mgidlana for the applicants in respect of the incidents that took place at Port St Johns.

CHAIRPERSON: For the benefit of the public, I am told that the translations are as follows - on channel 1, it would be translated into Sotho, channel 2, English and channel 3, Xhosa. Yes, Mr Mgidlana.

MR MGIDLANA: Chairperson, will begin by indicating that I have been instructed by one of the applicants who appears in the bundle of documents, who is applicant number 6, Pumulele Civilian Hermans, who is sitting next to me, that he had indicated in his application that he was accused of being involved in the killing of the APLA 5 as well as the killing of the late Mr Mapipa. He indicates that he was not there and I am instructed therefore to withdraw the application in respect of himself regarding those incidents.

CHAIRPERSON: All of the incidents?

MR MGIDLANA: All of those incidents. 

CHAIRPERSON: I assume you have explained to him what the implications thereof are?

MR MGIDLANA: Yes, I did Judge. I did. As it turns out, he says that he was not there at all, it is just that he has been cited criminally in respect of those incidents.

CHAIRPERSON: Mr Hermans, have you heard what your Attorney has said?

MR HERMANS: Yes sir.

CHAIRPERSON: Do you understand what he has told us?

MR HERMANS: That is correct sir.

CHAIRPERSON: Are you satisfied with what he told us?

MR HERMANS: Yes sir.

CHAIRPERSON: And I understand him to say that you are withdrawing your application in respect of all the incidents which we are going to discuss in this application?

MR HERMANS: That is correct sir.

CHAIRPERSON: Very well. Then your application is then withdrawn. You are excused.

MR MGIDLANA: As it pleases you Chairperson.

CHAIRPERSON: Yes Mr Mgidlana?

MR MGIDLANA: As it pleases you Chairperson, I will then call Mfanelo Dan Matshaya who appears as applicant 5 in the bundle of documents to come over and take the stand.

CHAIRPERSON: Mr Mgidlana, let us just get something straight, as I understand it having read the papers, we are going to discuss in the course of this hearing, three incidents, are we agreed?

MR MGIDLANA: Yes, we are agreed.

CHAIRPERSON: One of them being a shoot-out at which at some time, members of the South African Police Services were involved?

MR MGIDLANA: That is correct.

CHAIRPERSON: The second one is an attack in which five members of APLA were killed?

MR MGIDLANA: Yes, that is correct.

CHAIRPERSON: I am not saying that is the order in which we are doing it, I am just identifying the incidents. What is the third one?

MR MGIDLANA: The third one is the killing of the late Mr Mapipa.

CHAIRPERSON: Yes. Which one are we going to start with?

MR MGIDLANA: The one that I intend starting with Judge, is the one involving the shoot-out at the Voter Education Workshop at a high school, which as you indicated, also involves the involvement of the, also the involvement of the police as well as the Transkei Defence Force members.

CHAIRPERSON: Where would we find this applicant's application, on what page?

MR MGIDLANA: It is on pages 57 to 66 of the bundle.

CHAIRPERSON: Yes. 

MR MGIDLANA: May I proceed Judge?

CHAIRPERSON: Oh, I am sorry. Mr Matshaya, what language would you prefer to use?

MR MATSHAYA: I am going to use Xhosa.

MFANELO DAN MATSHAYA: (sworn states)

CHAIRPERSON: Please be seated. Yes, Mr Mgidlana.

EXAMINATION BY MR MGIDLANA: As it pleases you Judge. Mr Matshaya, can you give us your full names and where you reside?

MR MATSHAYA: I am Mfanelo Dan Matshaya, residing in 31 Spruit Street in Umtata in the former Transkei.

MR MGIDLANA: Are you a member of any political organisation or State organ?

MR MATSHAYA: I am a member of the African National Congress.

MR MGIDLANA: Since when have you been a member of the African National Congress?

MR MATSHAYA: Since 1980.

MR MGIDLANA: Were you a member of any of the organs of the African National Congress?

MR MATSHAYA: Yes, I was an Umkhonto weSizwe member.

MR MGIDLANA: Since when did you join Umkhonto weSizwe?

MR MATSHAYA: Since 1982.

MR MGIDLANA: Did you undergo any military training as a member of MK?

MR MATSHAYA: I got military training in Angola in 1984 and I proceeded to Yugoslavia in 1985.

MR MGIDLANA: When did you return to South Africa?

MR MATSHAYA: I came back in 1987.

MR MGIDLANA: Did you continue being a member of the ANC as well as Umkhonto weSizwe?

MR MATSHAYA: Yes, I continued.

CHAIRPERSON: Tell me, of your fellow applicants, were they also members of the ANC or any of them?

MR MATSHAYA: One of them, they were all ANC members sir.

CHAIRPERSON: Yes, and any of them trained, members of MK trained?

MR MATSHAYA: Only one of them which is Mr Mdlulwa.

CHAIRPERSON: Was he trained?

MR MATSHAYA: Yes, he was trained.

CHAIRPERSON: Yes, carry on.

MR MGIDLANA: Do you know where he was trained so that we could just finalise that point? Do you know where he was trained?

MR MATSHAYA: I do not know, but I just only met him in Angola. As to where he did his further training, I do not know.

MR MGIDLANA: It is common cause that the ANC was unbanned in 1990, you recall that?

MR MATSHAYA: That is correct sir.

MR MGIDLANA: And after its unbanning, where were you based?

MR MATSHAYA: I was based here in the Transkei.

MR MGIDLANA: And did you continue with your activities as a member of MK?

MR MATSHAYA: Please explain your question.

MR MGIDLANA: What I mean, were you as a trained member of MK, were you sometimes called upon to do some work on behalf of the organisation?

MR MATSHAYA: That is correct sir.

CHAIRPERSON: You know why you are here today?

MR MATSHAYA: Yes, I am aware sir.

CHAIRPERSON: Tell us in respect of the shoot-out at the school, at the Workshop, what happened there?

MR MATSHAYA: At that time, I was in the Security Branch of the ANC in Umtata.

CHAIRPERSON: What time was that. When was that?

MR MATSHAYA: It was in 1994.

CHAIRPERSON: Yes.

MR MATSHAYA: Myself and comrade Dumisa Mdlulwa, we were on duty on that day.

CHAIRPERSON: As what?

MR MATSHAYA: As security officers.

CHAIRPERSON: Yes?

MR MATSHAYA: We got a report from the ANC office, or rather an order to go to St Johns, where there was a Voter Education that was going on and there has been a shooting.

MR MGIDLANA: From whom did you get that report?

MR MATSHAYA: It was from our Head, Joe Jongile.

MR MGIDLANA: Did you proceed to Port St Johns?

MR MATSHAYA: We left Umtata, myself and comrade Mdlulwa and a third comrade that we found at the office, which was comrade Zukhuru.

CHAIRPERSON: He is not one of the applicants?

MR MATSHAYA: No, I haven't seen him here.

MR MGIDLANA: Was this Zukhuru his - what are his full names? Is Zukhuru his full name or one of his name or is this a pseudonym?

MR MATSHAYA: I do not know him that well. Commander Joe Jongile would be the one who could give us those details.

CHAIRPERSON: Yes, carry on.

MR MGIDLANA: And then what did you use to travel to Port St Johns, did you use public transport of private transport?

MR MATSHAYA: We were driving in a car that we normally used for security purposes at the office, the three of us, myself, comrade Mdlulwa and comrade Zukhuru.

MR MGIDLANA: Were you carrying any firearms with you?

MR MATSHAYA: Yes, we were heavily armed.

MR MGIDLANA: Having reached Port St Johns, what did you do?

MR MATSHAYA: On our arrival at Port St Johns, we reported at the ANC office there, and we met the Chairperson there and we were given the directions where the shooting was taking place, which is the school. We proceeded in that direction and we found a person who guided us to the shooting place. 

MR MGIDLANA: Do you know that person's name?

MR MATSHAYA: No, I do not know that person's name.

MR MGIDLANA: Is he not amongst the applicants who are here in respect of the incidents that took place at Port St Johns?

MR MATSHAYA: No, I haven't seen him.

MR MGIDLANA: Proceed. You then proceeded to the school?

MR MATSHAYA: On our arrival at the school, as soon as we entered the gate, we heard gunfiring, they were shooting at our car. There were already chaos and there were adult people because there was Voter Education that was going on. There were lots of people in the school. After having been shot at, we alighted the car and we took cover and - we took cover and we positioned ourselves appropriately. 

MR MGIDLANA: Yes, and what happened?

MR MATSHAYA: The shooting continued and we could see from what direction it came from.

MR MGIDLANA: Yes?

MR MATSHAYA: We divided ourselves and we gave each other the task of evacuating all the adult people who were in the premises and to try and stop all this.

MR MGIDLANA: Was there still this gunfiring?

MR MATSHAYA: Sorry?

MR MGIDLANA: Was there still shooting?

MR MATSHAYA: Yes, the gunfiring was continuous. Fortunately for us, there was a comrade who was residing in Port St Johns and they joined us in.

MR MGIDLANA: You say how many were they?

MR MATSHAYA: They were many in number, but the other one who was carrying a firearm, he is the one that we worked with closely.

CHAIRPERSON: Who is he?

MR MATSHAYA: I think he is present here in the hall.

CHAIRPERSON: Who is he, I am not asking if he is present.

MR MATSHAYA: I do not know his name.

CHAIRPERSON: Is he a fellow applicant?

MR MATSHAYA: Yes, he is a fellow applicant.

CHAIRPERSON: Who may that be Mr Mgidlana?

MR MGIDLANA: It is Guleni, Fundisele Guleni.

CHAIRPERSON: Guleni, Fundisele Guleni?

INTERPRETER: Could the applicant kindly bring the microphone closer?

CHAIRPERSON: Carry on.

MR MATSHAYA: We deployed ourselves and we fired back, and the firing was just going on continuously. 

CHAIRPERSON: Yes, carry on, what happened next?

MR MATSHAYA: Thereafter we heard that there was a soldier that was reported to be dead, and the people were evacuated and...

CHAIRPERSON: Did you return fire?

MR MATSHAYA: Yes, we did.

CHAIRPERSON: Yes?

MR MGIDLANA: You said the firing continued for some time (indistinct)

MR MATSHAYA: The firing continued and we tried to suppress them, but they outnumbered us. The process of evacuating the people was quite difficult, because we were trying to use backdoors and windows. There were cars that were being shot at.

CHAIRPERSON: Was the building, the school building, then being attacked?

MR MATSHAYA: Yes sir.

CHAIRPERSON: So you had proceeded from the gate where you were shot upon, to the school building?

MR MATSHAYA: Yes, we managed because the terrain was bushy, so it was easy.

CHAIRPERSON: Okay, carry on.

MR MATSHAYA: At about five o'clock in the afternoon, there were no more policemen and soldiers at that time, and when we realised that it was becoming dark, and the police Commander, he heard that there was shooting, he was coming from Umtata and we told him that he must ask his policemen to stop the shooting, but this continued an hour after I have told him, but we tried to retreat at about five o'clock, when all the people were all evacuated from the school premises and we decided to move away as our mission was accomplished or over.

CHAIRPERSON: Why do you think the school was being attacked?

MR MATSHAYA: When we enquired as to what is happening because we did not know who was firing at who, but we knew that they were shooting from a Mr Mposelwa's house. As we were firing, we could not fire back at that house because there were small children that came out of the house, of the age of 5.

CHAIRPERSON: I know that, but why were they attacking the school? Was it just ordinary criminal reasons or political reasons or what?

MR MATSHAYA: It was for political reasons, because the ANC and the PAC were fighting in St Johns at that time. It was not the first report that we got.

CHAIRPERSON: Were there ANC people in the - why do you say that the school was being attacked because there was a fight between the members of the ANC and the members of the PAC?

MR MATSHAYA: The Voter Education that was going on at that time, was conducted by the ANC. Thus, I think that they wanted to disrupt the Voter Education that was going on. I don't have any other reason that I can give.

CHAIRPERSON: And you went to St Johns to do your duty as a result of an order from your Commander?

MR MATSHAYA: That is correct sir.

CHAIRPERSON: You say after an hour, after you reported to the police Captain, the shooting subsided as I understand it?

MR MATSHAYA: No sir, what I said is that after having spoken to the Commander at the police station, the firing continued. Nobody came to try and stop it.

CHAIRPERSON: Did you go to the police station?

MR MATSHAYA: Fortunately the police station was just behind us, and we saw the police, they took cover, they were just watching, they did nothing.

CHAIRPERSON: I see.

MR MATSHAYA: The Station Commander drove, passing by with a van and we stopped him. He was on his way back from Umtata.

CHAIRPERSON: How many of your co-applicants were involved in that incident? You have told us about Guleni and Mdlulwa. Anybody else?

MR MATSHAYA: It is only the three of us, sir.

CHAIRPERSON: Only the three of you? 

MR MATSHAYA: Yes sir.

CHAIRPERSON: And those other comrades of yours that didn't come too close, do you know who they were?

MR MATSHAYA: No, I do not know sir.

CHAIRPERSON: Could there have been one of your co-applicants involved with that lot, who never came too close, but came to assist?

MR MATSHAYA: Please repeat your question sir.

CHAIRPERSON: Could there have been one of the co-accused that came in that group that didn't come too close to you? Remember you said there at Port St Johns there were many comrades, only one who was armed, came very close, he was Mr Guleni. I assume the others stayed further back. Do you know Mr Poyo?

MR MATSHAYA: No sir.

CHAIRPERSON: And Mr Pato? Do you know him?

MR MATSHAYA: No sir.

CHAIRPERSON: You say in any case, the three of you were in close vicinity of each other during that incident?

MR MATSHAYA: That is correct sir.

CHAIRPERSON: Okay, carry on.

MR MGIDLANA: Were there others who could have also participated, but whom you cannot identify?

MR MATSHAYA: Yes, there are. There were many because there were elderly people and women, there was chaos and there were men who were also helping us out to carry the old people and helping through windows.

MR MGIDLANA: You said that this firing was coming from the direction of Mr Mposelwa, one Mr Mposelwa's house?

CHAIRPERSON: Can you spell that, I cannot hear what you are saying.

MR MGIDLANA: M-p-o-s-e-l-w-a.

CHAIRPERSON: Mp?

MR MGIDLANA: Yes, Mposelwa.

CHAIRPERSON: Who was this person?

MR MGIDLANA: He says in his testimony that the firing was coming from the house of one Mr Mposelwa. 

CHAIRPERSON: Just hold on, something is crossed here on the microphones. Is English still on channel 2? Okay, let us - I asked you who was Mr Mposelwa?

MR MGIDLANA: Mposelwa.

CHAIRPERSON: Who was he?

MR MGIDLANA: Can you tell us who Mr Mposelwa was?

MR MATSHAYA: Mr Mposelwa was a PAC member, a senior member of the PAC in Port St Johns.

CHAIRPERSON: Is it from that house from which there was shooting towards you?

MR MATSHAYA: That is correct, sir.

CHAIRPERSON: How far is that house from the school?

MR MATSHAYA: There is just a fencing between the two buildings.

CHAIRPERSON: Can you show us now from the school building, let's say the school building is where you are, can you point out a position here in this room? Can you do it?

MR MATSHAYA: The school wall might start ...

CHAIRPERSON: Aikona, the school wall is where you are sitting, show us now where ...

MR MATSHAYA: Okay, the school wall might be where I am sitting, and Mr Mposelwa's house might be there by the door.

CHAIRPERSON: Would the legal representatives agree with 15 metres?

MR MALUSI: Yes Chairperson.

CHAIRPERSON: Do you agree Mr Mgidlana?

MR MGIDLANA: Yes Chairperson.

CHAIRPERSON: Yes?

MR MATSHAYA: We were at an edge and we crawled towards the edge which was dividing the two premises.

CHAIRPERSON: Is there anything more you want to say on this incident?

MR MATSHAYA: When we left in the evening, policemen arrived, or rather the army from the Special Force. It was, there would have been three of them, and they told us that we have to leave because the government Forces have been arranged to come and monitor the situation. That is when we withdrew, at that stage.

CHAIRPERSON: Yes.

MR MGIDLANA: During the whole incident, was anyone killed or injured, that is at the time when you were still engaged in the...

CHAIRPERSON: He said they had heard later that a soldier had been killed.

MR MATSHAYA: Yes, during the shooting, a soldier was shot. We saw him being shot, because he had just told us that he was going to the PAC group and another man who was just walking passed, he was shot as well.

CHAIRPERSON: Who shot that soldier?

MR MATSHAYA: He was shot by the PAC members.

CHAIRPERSON: Have you been charged with this incident, or are charges pending in respect of this incident?

MR MATSHAYA: Are you referring to the shooting of the soldier?

CHAIRPERSON: Yes, that whole incident, any charges arising out of that incident?

MR MATSHAYA: No sir, no charges.

CHAIRPERSON: Any of your co-accused, do you know?

MR MATSHAYA: No sir, no policeman came to us. The only thing that we saw the following day, were the casualties and the reports that there were Security Forces and that people were killed, and we did not know who might have died, but seeing that we realised that lives had been lost there, we decided to apply for amnesty.

CHAIRPERSON: So you are not too sure whether you were the cause or any of your colleagues were the cause of those deaths? You only know of one death, that is the soldier, and you know that he was killed from the firing from the PAC members?

MR MATSHAYA: That is correct sir.

CHAIRPERSON: Anything else you want to tell us about that incident or have you done with that?

MR MATSHAYA: There is nothing else Your Honour other than the fact that people died.

CHAIRPERSON: Let's proceed.

JUDGE POTGIETER: Tell us just, what were you using to shoot with?

MR MATSHAYA: I was carrying an AK47 rifle.

JUDGE POTGIETER: And the other one, Mr Mdlulwa?

MR MATSHAYA: I am not certain, but I was the only one who was carrying an AK47 rifle. As to whether he was carrying an R4 or an R1, I am not sure.

CHAIRPERSON: Mr Guleni?

MR MATSHAYA: It seems that he was carrying an Uzzi sub-machine gun.

MR MGIDLANA: Did you aim at any object when you were shooting?

CHAIRPERSON: Or any person?

MR MATSHAYA: We were crawling towards the fence. Because of the bushy terrain and you could not see your target clearly, but to suppress them for the purpose of our mission, we wanted them to see that we were shooting them, but sometimes I would just be shooting openly.

MR MGIDLANA: was your AK47 on manual or on automatic?

MR MATSHAYA: I kept on changing it because I did not have enough ammunition, because we did not know what was the situation, therefore I kept on alternating the positions, manual to automatic. And one other thing that happened there, that didn't - we did not shoot at the house because there were children who were coming out of the house. Because we noticed later that this is actually a residential house, and there were shooting, but from all over the house. They were shooting from inside the house, we were going to throw in handgrenades, but because of the presence of the children, I stopped them.

MR MGIDLANA: You never saw any bullet from your firearm striking any person?

MR MATSHAYA: No, but I had aimed at somebody who had just arrived with a car. Whether I struck him, whether he fell or not, I could not tell, because I just fired and they would just return the firing.

MR MGIDLANA: Thank you.

CHAIRPERSON: ... the next incident in which he is involved, or is that his ...

MR MGIDLANA: It is only this incident, Your Worship.

NO FURTHER QUESTIONS BY MR MGIDLANA

CHAIRPERSON: Mr Mgxaji?

MR MGXAJI: Yes Judge, Judge so far the testimony profit by the applicant, doesn't seem to relate to ...

CHAIRPERSON: To your clients?

MR MGXAJI: To my clients, but I am not too sure whether His Lordship may allow me to just ask one question relating to Guleni.

CHAIRPERSON: Is it - relevant to which act, incident?

MR MGXAJI: Relevant to the Mapipa case.

CHAIRPERSON: Well, ask the question, let us see how ...

CROSS-EXAMINATION BY MR MGXAJI: Mr Matshaya, Mr Guleni is also the applicant before this Committee, in relation to the Mapipa murder case, right? I want to find out if you know him, is he or was he a member of MK?

JUDGE POTGIETER: Don't touch this thing here, it is very sensitive on the headphones. Switch it on again.

MR MATSHAYA: I know Mr Guleni. I met him in Port St Johns. I knew him as the member of the SDU in Port St Johns.

CHAIRPERSON: Do you discount the possibility that he was a member of MK or is it that you just don't know?

MR MATSHAYA: As far as I am concerned, as a member of SDU, I don't draw that much difference from the MK because the SDU's would get their training from the MK people, therefore I don't know who to answer this question.

CHAIRPERSON: To differentiate? Now let's put it this way, can you say whether he was trained outside the country or not? Can you say?

MR MATSHAYA: No, I don't think so. I don't think so.

CHAIRPERSON: Is that all Mr Mgxaji?

MR MGXAJI: That is all, Judge, thank you.

NO FURTHER QUESTIONS BY MR MGXAJI

CHAIRPERSON: Mr Malusi?

MR MALUSI: Thank you Mr Chairperson, I don't have any questions for this applicant.

NO CROSS-EXAMINATION BY MR MALUSI

CHAIRPERSON: Thank you. Mr Mapoma?

MR MAPOMA: I have no questions, Chairperson.

NO CROSS-EXAMINATION BY MR MAPOMA

CHAIRPERSON: I don't suppose you have any re-examination, Mr Mgidlana?

MR MGIDLANA: No re-examination Chair, thank you.

NO RE-EXAMINATION BY MR MGIDLANA

CHAIRPERSON: Yes, thank you, you are excused.

WITNESS EXCUSED

CHAIRPERSON: Mr Mgidlana, I just want to ask you, in respect of this applicant, should we find that he was party of a group responsible for any crime at that incident, what would he be applying for, which offences?

MR MGIDLANA: Judge it seems to me that it would be an offence of public violence, secondly I am not so certain ...

CHAIRPERSON: But he was defending people, that is not public violence?

MR MGIDLANA: Since there was a shooting ...

CHAIRPERSON: Let's put it this way, at the end of the hearing, we are going to ask you to argue. You can think about it.

MR MGIDLANA: Think about it, as it please you Chairperson.

CHAIRPERSON: Let's proceed.

NAME:&#9;DUMISA MDLULWA

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ON RESUMPTION:

MR MGIDLANA: May I then call Dumisa Mdlulwa, Judge, to come over?

CHAIRPERSON: Mr Mdlulwa, what language would you prefer to use?

MR MDLULWA: Xhosa.

CHAIRPERSON: What language, I didn't get the answer?

INTERPRETER: The witness is going to be testifying in Xhosa.

DUMISA MDLULWA: (sworn states)

CHAIRPERSON: Please be seated. 

EXAMINATION BY MR MGIDLANA: Mr Mdlulwa, could you give us your full names and where you reside?

MR MDLULWA: My name is Dumisa Mdlulwa, I reside at Zimbane.

MR MGIDLANA: Where is Zimbane, which town?

MR MDLULWA: In Umtata.

MR MGIDLANA: During the time of this incident, were you a member of any organisation, that is the incident of the shoot-out at the school?

MR MDLULWA: Yes, I was a member of the African National Congress.

CHAIRPERSON: Were you a member of MK as well?

MR MDLULWA: Yes, that is correct.

CHAIRPERSON: Is it correct that you were part of the Security section of the ANC at that time, of the incident?

MR MDLULWA: Yes, that is correct.

CHAIRPERSON: And were you one with Mr Matshaya that was deployed to Port St Johns on that day?

MR MDLULWA: Yes, that is correct.

CHAIRPERSON: Did you listen to Mr Mashaya's evidence as to what happened there that day?

MR MDLULWA: Yes, that is correct.

CHAIRPERSON: Do you agree with that or don't you?

MR MDLULWA: Yes, I agree with his testimony.

CHAIRPERSON: Is there anything that you would like to change?

MR MDLULWA: No, there is nothing I would like to change, except for the fact that there is a minor detail that he has left out.

CHAIRPERSON: I was going to ask you, if there is anything that you wish to add.

MR MDLULWA: The cars that were there, our car was at the back and the other car was, the car that was in the front, it was shot at and that is actually the proof that they were shooting at the direction of the school. The driver was inside, but inside the car he was not hit and he tried to reverse and he left and his shoe was left inside the car, and we tried to get some spades to take our car, to try to remove our car, and we left the scene. That is what I wanted to add.

CHAIRPERSON: Is that all?

MR MDLULWA: No, there is nothing else. He mentioned everything.

CHAIRPERSON: Yes, Mr Mgidlana?

MR MGIDLANA: Were you carrying any firearms, yourself personally?

MR MDLULWA: Yes.

MR MGIDLANA: What firearm was that?

MR MDLULWA: It was an Uzzi.

MR MGIDLANA: Amongst the - did you notice anyone else other than the ones that Mr Matshaya has mentioned, as having participated in this shoot-out from your side?

MR MDLULWA: There was a lot of confusion, full of people, I cannot remember who else was there. During this shoot-out there was a pandemonium, the others were crying on the other side as we were also returning fire, we also had to save them, try to remove them and try to calm them down.

MR MGIDLANA: From your own firing, did you see anyone amongst the people who were struck by a bullet from your firearm?

MR MDLULWA: No, I do not remember seeing anyone, because the area was bushy and people would see only shadows because even if you would try to peep through and you would hear a bullet hitting nearby and you would try and take cover.

MR MGIDLANA: Did you have a license in respect of this firearm that you were using?

MR MDLULWA: Yes, we got the licences - we got the firearms from the Commander, I did not have my own license for the firearm.

MR MGIDLANA: You have already indicated that you confirm what has been stated by Mr Matshaya regarding the incident?

MR MDLULWA: Yes, I confirm that.

MR MGIDLANA: That is all Chairperson.

NO FURTHER QUESTIONS BY MR MGIDLANA

JUDGE POTGIETER: When did this happen?

MR MDLULWA: If my memory serves me correctly, I think it was around March, but I cannot remember the date.

JUDGE POTGIETER: In 1994?

MR MDLULWA: Yes, in 1994.

JUDGE POTGIETER: Thank you.

CHAIRPERSON: Mr Malusi?

MR MALUSI: Thank you Judge, no questions for this witness.

NO CROSS-EXAMINATION BY MR MALUSI

CHAIRPERSON: Mr Mgxaji?

MR MGXAJI: No questions, Judge.

NO CROSS-EXAMINATION BY MR MGXAJI

CHAIRPERSON: Mr Mapoma?

CROSS-EXAMINATION BY MR MAPOMA: Just one Chairperson. Mr Mdlulwa, in your application, I just want you to clarify this point, on page 52 of the paginated pages, you say on paragraph 9(b) where the question is "state whether any person was injured", you say "yes, TDF soldiers and some people killed by the bandits", what do you mean by that?

MR MDLULWA: Will you please repeat your question, sir?

MR MAPOMA: In your application form there some part where you say that TDF soldier was killed and you say and some "people killed by the bandits".

MR MDLULWA: You want to know more about the bandits?

MR MAPOMA: Yes.

MR MDLULWA: I think that is the language used by the person who was helping me writing this statement, because I never mentioned that term, bandits. Poswa, the person who was helping me writing the statement, may have used his own language.

MR MAPOMA: I see. Thank you, no further questions, Mr Chair.

NO FURTHER QUESTIONS BY MR MAPOMA

CHAIRPERSON: Mr Mgidlana, I don't suppose you have any re-examination?

MR MGIDLANA: There is none Judge, thank you.

NO RE-EXAMINATION BY MR MGIDLANA

CHAIRPERSON: Thank you, you are excused.

WITNESS EXCUSED

NAME:&#9;TEMPLETON ZAMHIKHELE PATO

--------------------------------------------------------------------------MR MGIDLANA: May I then call Templeton Zamhikhele Pato?

CHAIRPERSON: Mr Pato, what language would you prefer to use?

INTERPRETER: The witness is going to testify in Xhosa.

TEMPLETON ZAMHIKHELE PATO: (sworn states)

CHAIRPERSON: Mr Pato, you may be seated.

MR PATO: Thank you.

CHAIRPERSON: How are you employed at the moment?

MR PATO: Yes, I am employed. I am working at the Legal Advice Centre at Port St Johns, in the office of the Human Rights.

CHAIRPERSON: Those spectacles or sunglasses that you have, are they prescriptive?

MR PATO: No.

CHAIRPERSON: Would you please remove them? Yes, Mr Mgidlana?

EXAMINATION BY MR MGIDLANA: As it pleases you, Judge. Would you give us your full names for the purposes of the record, Mr Pato?

MR PATO: My name is Templeton Zamikhele Pato.

CHAIRPERSON: Mr Mgidlana, we are still busy with the same incident?

MR MGIDLANA: With the same incident, Judge, yes. Where do you reside?

MR PATO: I reside in Port St Johns, at Ntibane in the township.

MR MGIDLANA: At the time when the incident under discussion took place, that is the shoot-out at the Voter Education Workshop at one of the schools at Port St Johns, were you a member of any organisation or a State organ?

MR PATO: Yes, I was a member as I am still a member, even today.

MR MGIDLANA: Give us the organisation, when did you join it?

MR PATO: I am a member of the African National Congress, I joined the ANC in 1993, I beg your pardon in 1983. I don't know whether you want to get more details as to the Branch. I joined at Mbekweni in Cape Town.

MR MGIDLANA: When this incident took place, you were still a member of the ANC?

MR PATO: Yes, that is correct sir.

MR MGIDLANA: Where were you stationed, or where were you residing, were you still residing in Port St Johns?

MR PATO: I was residing in Port St Johns at this place called Ntibane township.

MR MGIDLANA: On this day of the shoot-out at the school, where were you?

MR PATO: On this particular day, I was at school, Port St Johns Senior Secondary School. We went there for a Voter Education. 

MR MGIDLANA: Could you tell us what happened when you were there?

MR PATO: As I was there, we had a Workshop that had started eight o'clock in the morning. Damdile came, one of the people who were there, his name was Damdile, he came to the class and enquired about the person who was at the school gate and he was also swollen just underneath his nose, he was hit with the firearm by someone who asked him about Mandela's firearms. He said this person was a soldier from the Transkei. This person was ill-treating people who were wearing a camouflage uniform, camouflage military uniform of the Transkei soldiers. I am not sure if your question is answered.

MR MGIDLANA: May I just spell the name of the person that is named. It is D-a-m-d-i-l-e. And then what happened, could you just give us a full picture of what happened?

MR PATO: It was myself, Sibusiso - myself and Sibusiso, we were sent to go and check out what was happening at the gate, and we went to the gate. There was a man who was there wearing this camouflage uniform for the Transkei Defence Force. When we enquired as to what was happening, because we were thinking that perhaps this is a soldier from Transkei or a person who was drunk. He did not respond properly and it looked like he was also prepared to hit us with this firearm and we heard a gunshot from the other direction, the junior, Port St Johns Junior School and on the other side of the road was Mr Mposelwa's house and we heard a firing coming from that direction of Mposelwa's house.

MR MGIDLANA: Yes, and what happened?

MR PATO: After that, we ran away. As the people who were unarmed, we were not expecting that to happen. We ran to the police station. We found Mr Guleni at the police station and the previous Chairperson of the ANC who were reporting about a matter that had happened and Mr Guleni was wearing some dirty clothes, as if it is someone was put into some ditch or mud. They told us that they would attend to us later, and to be honest, even the police from Port St Johns were afraid of these APLA guys. When we reported this matter, they told us that they would come back later to us, they first had to attend to this Guleni matter that had taken place at Bantu. We went back to the school, because we were worried about the elderly people who had attended the Voter Education. After arriving at the school and on the other side of the fence, the firing was still going on.

MR MGIDLANA: What happened?

MR PATO: We realised that this shooting was intensifying and they were now hitting straight at the verandah where the Workshop was, the verandah of the class where the Workshop was. I don't even know at what time did they get in, that is Mr Guleni and the others. As we were still taking cover there, and requesting the people not to get out, because we were going to be hit and we advised that the people should remain inside. We saw a car, a red car, coming in, a Jetta. Those were the MK soldiers, three of them. When they came, we were not sure as to who were they. We thought that the people who were attacking, had some reinforcement, but we later realised that those were the people who were coming to protect the people who were there attending the Voter Education, at school. I am not sure if I am going fast, is it okay?

MR MGIDLANA: Proceed, it is okay.

MR PATO: I stood next to them, because I didn't know what to do because I was unarmed. I didn't know which one of them, this school, there was a high school, we were at the high school and from there it was a bushveld, and behind there, there was Mr Mposelwa's house. Those people were just shooting randomly and the people were shooting from the direction of Mr Mposelwa's house, shooting, directing at us and I saw a firearm, an Uzzi, falling from one of the APLA soldiers. He was also running away, this APLA soldier and his firearm fell, that is when I got hold of a firearm to protect the people, the people who were there at school. That is when I got that firearm and this other person ran away towards the bushes.

MR MGIDLANA: And you picked up this firearm, is that correct?

MR PATO: Yes, I kept this firearm.

MR MGIDLANA: Did you use it to fire at the people who were running away or who were firing at you?

MR PATO: Yes, I used this firearm. Though I was not directing or directing at a specific target, I was just shooting randomly because it was not easy for us to see those people, because they were hiding in the bush and they could see us because we were not hiding.

MR MGIDLANA: Were you a member of either MK or the Self Defence Unit of the ANC?

MR PATO: Unfortunately I was not an MK member, I was not a member of the SDU at the time.

MR MGIDLANA: And you heard the narration by Mr Matshaya about what happened after they had arrived, do you confirm what happened after they had arrived?

MR PATO: Yes, I do confirm that, because it is as he is narrating the story. But I am not sure if I am allowed to add anything. I also want to mention that we did not know one another at the time and it was very difficult for me to trust them up until such time, they came to our side and started shooting towards the bushes, and I later discovered that they were coming from somewhere else, though I didn't know who told them about the incident, but that is when I realised that those people were on our side.

MR MGIDLANA: Were you charged for any offence regarding that particular incident, that is the shoot-out incident?

MR PATO: No, I was never charged or arrested concerning this incident.

MR MGIDLANA: Is it correct that you are one of the accused in the APLA 5 case?

MR PATO: Yes, that is correct sir.

MR MGIDLANA: Did you participate in the events leading to the killing and disposal of the bodies of those members of APLA? Those five members of APLA did you participate in the activities leading to their killing, their actual killing as well as the disposal of their bodies?

MR PATO: No, I was never part of that, the only incident that I was involved in was during the shooting on that particular day, that was the only, the first and the last incident.

CHAIRPERSON: Which shooting, at the school?

MR PATO: Yes, at school during the Voter Education.

CHAIRPERSON: Is that the only ...

MR MGIDLANA: Is the only, yes, are you therefore saying that you are not applying for amnesty in respect of the killing of the APLA 5 because you were not there?

MR PATO: Yes, I do not have any application concerning that matter, the APLA 5, because I was not involved.

MR MGIDLANA: Judge, I may mention that his application appears from page 14 up to page 20 of the Bundle, and that he does mention this particular incident, regarding the APLA 5 on page 16, on page 17, Judge, I am sorry, under paragraph (b) where it says "the second case of which I am involved as accused 4 is not known to me", so I wanted to clear that one. That is all, Judge.

NO FURTHER QUESTIONS BY MR MGIDLANA

CHAIRPERSON: Mr Malusi?

MR MALUSI: I have no questions Judge, for this witness, since he says he is not involved in the incident I am dealing with.

NO CROSS-EXAMINATION BY MR MALUSI

CHAIRPERSON: Mr Mgxaji?

MR MGXAJI: No questions, Judge.

NO CROSS-EXAMINATION BY MR MGXAJI

CHAIRPERSON: Mr Mapoma?

CROSS-EXAMINATION BY MR MAPOMA: Yes, thank you Chair. Mr Pato, what act is it that you committed on that day for which you want this Committee to grant you amnesty?

MR PATO: Thank you sir. First of all, during the shoot-out, as a person who managed to get hold of a firearm, I do not know whether anyone was injured in that incident, because there were bushes there next to the junior school of Port St Johns. My application is about the fact that that was not my aim to shoot a person, but it happened, and it is also possible that I injured someone during that incident, that is why I am here for amnesty, but I cannot say for sure, and state explicitly.

MR MAPOMA: Did you shoot at all?

MR PATO: Yes, I did.

MR MAPOMA: Thank you Chairperson, no further questions.

NO FURTHER QUESTIONS BY MR MAPOMA

MR MGIDLANA: There is no re-examination, Judge.

NO RE-EXAMINATION BY MR MGIDLANA

CHAIRPERSON: Thank you, you are excused.

MR PATO: Thank you Your Honour.

WITNESS EXCUSED

NAME:&#9;FUNDISELE GULENI

--------------------------------------------------------------------------CHAIRPERSON: Yes, Mr Mgidlana?

MR MGIDLANA: Judge, may I then call Guleni, Fundisele?

CHAIRPERSON: Mr Guleni, which language would you prefer to use?

MR GULENI: Xhosa Chairperson.

FUNDISELE GULENI: (sworn states)

CHAIRPERSON: Please be seated.

EXAMINATION BY MR MGIDLANA: Thank you Judge. Could you give us your full names and where you reside?

MR GULENI: My name is Fundisele Guleni, I reside at Dubana, Dubana AA in Lusikisiki, the Administration Area.

CHAIRPERSON: In 1994, where were you residing?

MR GULENI: I was residing in Port St Johns.

CHAIRPERSON: Yes.

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

MR GULENI: Yes, that is correct.

MR MGIDLANA: Which organisation and when did you join it?

MR GULENI: I was a member of the African National Congress and I joined in 1986.

MR MGIDLANA: You have heard the evidence of Mr Matshaya regarding the incident that took place at the Voter Education Workshop at one of the schools there, is that correct?

MR GULENI: Yes, that is correct.

MR MGIDLANA: Could you tell us when, about your involvement in the whole incident, starting from where did you learn about the problems that were taking place at the school?

MR GULENI: Are you talking about this day of Voter Education?

MR GULENI: Yes, the Voter Education Day, yes.

MR GULENI: What happened was this, as I was going to Umtata as a District Co-ordinator, to a meeting of the District Co-ordinators of the ANC, I was employed at the time, as I was hitch-hiking, I was attacked by the members and when I looked at them, to me they looked more like APLA members because they were in the company of Mr Mposelwa. They attacked me there at Bantu, but I managed to run away, or escape. I escaped without injuries. As I was still taking cover, then on the bushes, next to the place where I was attacked, I was saved by two soldiers and I remember there was Hermans who was also in Port St Johns, they were coming from the meeting in Umtata. He signalled to me, to lay down, because it looked like it was still bad for me to get out of the bushes. The people, I heard people crying who were watching this incident. After a long time, when I stood up, he made a signal to me to come to him and he asked me as to what was happening. I told him that I know nothing, but I was just attacked, and at that time, I was coming out of mud and I had only one shoe and I got into his car and he took me to Mr Mfeketho who was a Chairperson of the ANC at the time, and I told him about this incident and a decision was taken for us to go and report the matter to the police station.

MR MGIDLANA: Mfeketho is spelt as M-f-e-k-e-t-h-o. You are saying that Mr Mfeketho was the Chairperson of the ANC?

MR GULENI: Yes, Mr Mfeketho was the Chairperson of the ANC at the time.

MR MGIDLANA: Okay, then proceed.

MR GULENI: When we got to the police station, we reported the matter, a statement was taken. As we were still busy there, Damdile arrived, that is the person that I saw, I realised, and he told us that they were hit with firearms at the school where the Voter Education was taking place. After getting that report that something was taking place at the school, they decided that we should first go to the scene where I was attacked, they looked for empty cartridges. They found one of them. After that, we went back to town and when we got there, Mr Mfeketho took me in his car, a van, to my house or home, to change the clothes and after that I took a firearm that I had at the time.

MR MGIDLANA: What firearm was it?

MR GULENI: An R4 rifle. We followed the comrades who were coming from Umtata as they came to the office as we were still reporting about this story, and when Mr Mfeketho was taking me home, these comrades proceeded to the school, after getting the report. After coming back from home, when we got to the school, there was already a firing and we shot.

CHAIRPERSON: Did you return fire?

MR GULENI: No, not at that time, but that happened after some time.

CHAIRPERSON: Do you know whether you injured or killed anybody with your firing?

MR GULENI: No, I do not remember hurting anyone.

CHAIRPERSON: Yes?

MR MGIDLANA: Yes, and what happened?

MR GULENI: During this whole process, We had taken a decision not to fire back until their ammunition was finished, and reserve ours, but after some time, it was realised that we had to take action, we had to fire back. That is what happened and we fired back. After some time, during the shoot-out, Ndumiso Sgotyana came who was coming from Port St Johns, he joined. As the people were trying to remove the cars ...

MR MGIDLANA: Just a minute, Judge, may I just ask as to the spelling of Ndumisa Sgotyana? N-d-u-m-i-s-o S-g-o-t-y-a-n-a. Is he one of the applicants here, this Ndumiso Sgotyana?

MR GULENI: No. He is not an applicant.

MR MGIDLANA: He is deceased, is that correct?

MR GULENI: Yes, that is correct.

MR MGIDLANA: You may proceed.

MR GULENI: When we realised that this shooting was intensifying, we had to try some means to remove the cars inside the school premises. When Mr Mfeketho came in, the Chairperson, he tried to reverse, to put the gear on reverse before starting the car, and there was firing, but fortunately when he got in, he took cover inside the car, but the bullet missed him and his shoe was left in there, and I told the other comrade to pick up his shoe, but when he was trying to take this shoe and some bullet rang out and he later got hold of that shoe. Mr Mfeketho was armed with a .38 firearm. We realised that it was difficult for us to remove those cars and this car was, Mr Mfeketho's car was next to the tree. Ndumiso's car was taken during the night and all the cars were there until the following morning. They tried to remove Mr Matshaya from the back, that is what happened at that time. This firing continued and Mr Matshaya decided to go back and we were left at the scene. I was told by Damdile who found me in one of the premises there, and there was a wall made of stones in this yard where I was. Damdile came to me and told me that it is not safe for me to be there, because I don't know what kind of a person the owner was, and he told me that the TDF soldiers were there, and he told me to step back and I did so. We went back to the office where we found a certain Judge who was also there during the pre-election processes. As we were still giving him the story, the Judge, that is, we heard gunfiring and we went to inspect. As we were next to the bridge, we saw two soldiers of which we thought those soldiers were APLA soldiers, we saw them laying there, and we - there was also, the roads were barricaded by the people of Port St Johns, because they didn't want innocent people to get to the danger zone. When we enquired about these soldiers who were laying there, we were told those people were shot at by the TDF soldiers because they came from Mposelwa's direction, going up the street, that is the story that we got from the people and they met with this soldier, the one who was shooting at Port St Johns.

MR MGIDLANA: Otherwise during the time that you were involved in the shoot-out, was there anyone who was injured or killed from the opposing side?

MR GULENI: No. We did not hear of anyone who was injured there.

MR MGIDLANA: Did you see anyone injured because you say you did not hear?

MR GULENI: No, not at all. Not at that time. We were dealing with the people whom we could not see, therefore we could not see anyone who was hurt during that process.

MR MGIDLANA: During this shoot-out at the school, did you see - you mentioned Matshaya, did you see Mdlulwa who is also one of the applicants here? During the shoot-out, did you see Mdlulwa, Dumisa Mdlulwa who is one of the applicants?

MR GULENI: Yes, I saw him.

MR MGIDLANA: Did you see Pato also participating in the shoot-out?

MR GULENI: No, I did not see him shooting, but he was among the comrades who were there.

MR MGIDLANA: Could you then give us, you are also involved in applying for amnesty in respect of the Mapipa case, is that correct?

MR GULENI: Yes, that is correct.

MR MGIDLANA: Judge, may I just indicate that I would also like him to get into this other incidents? You heard Matshaya saying that as far as he knew, you were a member of the Self Defence Unit, is that correct?

MR GULENI: That is correct sir.

MR MGIDLANA: From whom did you get training, from which structure? Did you get training from MK or from the TDF?

MR GULENI: I was trained by the MK members.

MR MGIDLANA: When did you get such training and where?

MR GULENI: I got the training inside the country, I never went into exile, in 1987. We were trained by a comrade called Thami, who was a Unisa student and Isaac Mbomvu. I was together with two other comrades that were from Durban, but I do not know their names.

MR MGIDLANA: And where was this, in which part of - was this training taking place in Port St Johns or somewhere else?

MR GULENI: It was in Lusikisiki then, at a place called Mfohlozi, in a dipping tank in a forest.

MR MGIDLANA: Then could you just tell us as to what happened regarding the killing of the late Mr Mapipa?

MR GULENI: Firstly regarding the issue of Mr Mapipa, there was a great fighting between the PAC and the ANC in Port St Johns. This started when there was a rolling mass action called for by the ANC. We were fighting with the existing municipality of Port St Johns at the time and the rate payers were effected by this. As the Mass Action Committee we had the intention of to bring down the municipality that was existing at that time, and this brought this faction that was existing between us and the ANC led by Mr Mposelwa. We saw that all of a sudden now, they were being guarded and whenever there was a meeting that consisted of all structures regarding Port St Johns problems, he would be escorted. It is Mr Mposelwa who was being escorted. This continued and it was - this faction grew beyond the borders of the town of Port St Johns, even in Nzimbene where there were APLA soldiers staying there, which was a place where Mr Mapipa stayed. It was also discovered that there were APLA members who were staying in the farmers, in the Port St Johns area.

MR MGIDLANA: Sorry, this Nzimbene falls under the, does it fall under the area of jurisdiction of Port St Johns?

MR GULENI: That is correct sir, it is under the Port St Johns jurisdiction.

MR MGIDLANA: Is it a township or an Administrative area?

MR GULENI: It is a village.

MR MGIDLANA: Yes, proceed?

MR GULENI: There were a lot of provocation between our groups. I remember when we had a memorial service for Mr Thambo where a PAC member was giving a message of support, which was the late Mr Makhabula. He was also talking as he pleased, because he said, uttered statements like "that white man, Joe Slovo, would be killed if he were to come here in Port St Johns". There were some attacks that were launched by the PAC members. This started on Pumulela Hermans and this attack happened in January 1994. He managed to get away from that and he left Port St Johns and sought homage in Umtata. The second incident was the attack on his father, which is Mr Hermans, in his house. Fortunately he managed to get away. All these fights continued and the unrest caused by these soldiers. At some stage there was an attack on a Coke truck and also a passer-by who was just driving passed on his tractor, was also shot. A TDF soldier tried to fight back to defend this person. Also another kombi was blocked on its way to Lusikisiki and it was shot. It was all such incidents that happened, to the extent that Sadtu called a meeting that was intending to bring together all the Heads of Departments in Port St Johns, the Heads of Departments were from the police and from the Justice and from the investigating unit from the police and from the Station Commander. The purpose of the meeting was mainly to question why were the people of APLA out of control and nobody was trying to control them. But the answer that was given by the Station Commander was the fact that it is difficult for them to intervene or to address this matter, because when Gen Bantu Holomisa was in power, he said that after the certain family were beaten, these people can defend themselves whenever they pleased, but all these incidents, we would report at the police station and we would find the Assistant-Station Commander who would say to us "this MK or the ANC, isn't it giving you arms to defend yourselves"? 

CHAIRPERSON: Let's forget about all that now, let's get to the actual incident.

MR GULENI: Okay. Firstly whilst I was at the Port St Johns office of the ANC, Mzwandile Jagu arrived who was from Port St Johns. He said "there are rumours that the APLA members are going to attack us" and the Voter Education thing was due any time. Ndumiso Sgotyana from Etombo arrived, as well as accompanied by comrade Mula in a sedan car. I was not sure whether it was a Cressida or not, but it was white in colour. They said that they got information to the effect that "we might be attacked today", there might be shooting taking place or an attack. Whilst we were still sitting there, Mzwandile arrived at a later stage, but he talked to me first and said we must go and look for Ndumiso as there is a rumour that "we might be attacked today" because Mr Mapipa's car and some soldiers had entered the town. As he was still telling us about these news and these rumoured attack, this car arrived and it was dark at that time, it was already passed sunset. He pointed out this car, Mzwandile. Ndumiso who was saying that we must follow with his Cressida, but Mzwandile suggested that we should use his 4x4 van as it was faster. We got into the 4x4 and we took an R4 and an Uzzi which was in Ndumiso's car and in Mzwandile's car there was a G3. We went into Mzwandile's car, it was myself, comrade Mula and Mzwandile. This comrade Mula is late, he is from Etombo. We were following this car, Mzwandile was driving, I was sitting at the back and Mzwandile was sitting in front. Me went passed Mampube to Ncabazi. Mzwandile took another route, that was being used, a detour that was being used due to constructions. I think he had a 9mm and I had an R4 rifle. Ndumiso had a G3 and Mule had an Uzzi. After having parked the car, we crossed the road into some bushes, where we lay there in waiting and as this car approached, Mzwandile pointed it out and he could clearly identify the car, because it had only one light that was functioning and that is when he said that we must start firing and we did, and as we did, the car lost direction and it stood still.

CHAIRPERSON: Was Mzwandile the Commander of that group, the unit maybe?

MR GULENI: Mzwandile was a Commander there, because when he came, he introduced himself as an MK member in Port St Johns, and he was very resourceful and he had the weapons and he also had a car.

CHAIRPERSON: You regarded him as a Commander?

MR GULENI: Yes, yes, we did sir.

CHAIRPERSON: Thank you, proceed.

MR GULENI: (No interpretation) After having hid the car, two people came out, running, of the car, Mr Mapipa's car, and they ran into the bushes. Mzwandile said to Ndumiso Sgotyana "we should go up to the car", but Ndumiso did not want that, he might have been scared, but I was not sure as to why didn't he want to come with. I went then with Mzwandile and when - he had a balaclava on, but he could be clearly identified. When he got there, he asked them in English as to "where are the others and what is it that you need from the ANC" and Mr Mapipa was alive then, but Mzwandile finished him off with his firearm that he had. Thereafter he started the car, but before he did, we found a pumpgun that he took, and there was a plastic full of ammunition in this car, but we left those laying there on the road, we just took the pumpgun which is a self-made gun and we went back to our car. Whilst he was driving, on our way back, just near Dumase, he stopped the car. They got off and he opened the small window and Ndumiso said, they both got off, "gentlemen, you must never disclose this to anyone, otherwise it would land us in trouble". We proceeded back to the town. On our arrival there, we went separate ways and I found the ANC Chairperson, and I reported the matter to him. That is all I have to say regarding this case.

MR MGIDLANA: Prior to the actual taking place of this incident, did you sit down and plan that you must attack these people, after having heard that they were in town and that you were about to attack?

MR GULENI: No, we didn't sit down and have any planning, we didn't have a chance. As he was telling us, Mzwandile, about the details and how he got the information, that is when this car arrived, and we decided to follow it. There was no planning done around it.

MR MGIDLANA: Since when did you know this Mzwandile, or when did he arrive in Port St Johns?

MR GULENI: I would not know exactly when did he arrive in Port St Johns, but I saw him at the beginning of 1994 in January, if I recall well. I used to see him driving around with a van, called XJ, and he used to be in the Etombo area a lot. I got to know him well when he came to the ANC office, introducing himself as an MK member, driving in a brand new 4x4 that was red. He had a small cave on the road towards Silimela in Mpeleni, also he used to come in handy by assisting with his car when we were preparing for voting. That is when I got to know him better, as he was assisting in the ANC office.

CHAIRPERSON: Whatever the case may be, you accepted that he was knowledgeable in ANC activities and you were prepared to regard him as the leader of that unit?

MR GULENI: I do not want to agree with you fully, although we used to have a lot of disagreements on some issues that I might quote, as he was always armed we would ...

CHAIRPERSON: I am not asking you to prove it, I am just asking you is that a fact, you regarded him and accepted him as the leader?

MR GULENI: Yes, sir.

CHAIRPERSON: And you honestly believed that he was what he said he was?

MR GULENI: Yes, initially we did not doubt him, but as time went on, we had our doubts about him, but we could not question him as to whether was he a trained MK member or not, but we had to accept it on the face of it.

CHAIRPERSON: You believed that that was so, when he told you that?

MR GULENI: Yes, we believed him.

CHAIRPERSON: Can we proceed to the next incident?

MR MGIDLANA: Were you then, just to finish off Judge, were you then charged in respect of this Mapipa case?

MR GULENI: Yes sir.

MR MGIDLANA: And the trial is still proceeding before the Umtata High Court?

MR GULENI: That is correct sir.

MR MGIDLANA: How many are you as the accused persons in that case? You are an accused person, who are the other accused persons, the number?

CHAIRPERSON: Does it matter how many other accused there are? The fact of the matter is he is an accused amongst others for this matter.

MR MGIDLANA: As it pleases you, Judge, in fact I just wanted to clear one aspect that there are other people who are accused in that particular case, but I just wanted to enquire about that.

CHAIRPERSON: But he himself says he is guilty.

MR MGIDLANA: He is guilty, yes.

CHAIRPERSON: And that is why he is making the application? Let us not complicate matters further.

MR MGIDLANA: As it pleases you, Judge. May I proceed Judge, to the other incident, as it pleases you. You are also an applicant in respect of the killing of five APLA PAC members, is that correct?

MR GULENI: That is correct sir.

CHAIRPERSON: Do you know their names?

MR GULENI: No, I do not know their names, sir.

CHAIRPERSON: Proceed.

MR MGIDLANA: Could you please tell this Committee what happened during that particular incident?

MR GULENI: We were about to have an ANC rally, campaigning for the elections. The rally was to be addressed by Gen Bantu Holomisa. On the eve of this rally, we were camping at Majola as SDU members, with the marshals. 

MR MGIDLANA: Where was this rally going to be held?

MR GULENI: It was going to be held at Majola, at the playground called Tini.

MR MGIDLANA: Do you recall the date on which it was going to be held?

MR GULENI: No, I cannot remember the date, but I think it was just a few days before the election or before the voting.

MR MGIDLANA: So it was in 1994?

MR GULENI: Yes, in 1994.

MR MGIDLANA: All right, proceed.

MR GULENI: From our place where we were camping, I went to town to make some preparations for the rally that was to take place on that particular day. After preparing, getting ready to go to town, I was with Mguja who was there to help in the preparing of food. Mr Kanandyana came, driving in a car, with Lusindiso telling us that there was a report that there were APLA people who were present there and there was a rumour that they were going to disrupt the rally and we enquired more about this people, how do they look like, and so on. He said they were on their way, they were seen on the road, coming from the direction of Bantu. The people who were involved in the catering, we decided to leave them there and decided to go up and see what was happening. We drove in Mr Kanandyana's car.

MR MGIDLANA: Sorry for interrupting you, I just want to find out is this Lusindiso, the first applicant herein, that is Lusindiso Poyo or is it somebody else?

MR GULENI: Yes, that is correct, it is Lusindiso Poyo.

MR MGIDLANA: You may proceed.

MR GULENI: That was Lusindiso Poyo and Teso. We left with Mr Kanandyana to look at this matter. On our way, after driving passed Mampube, they pointed out to us these people. They tried to stop the car, or rather hitch-hiking and we stopped and we enquired as to where they were going, and they told us that they were going to Umtata, and they asked for a lift. I told them that we can give them a lift, but we were to get to a certain place, in order to get a spare wheel and after that, we would proceed to Umtata. They did so, we drove and when we were at a place called Mfhadla, we took a right turn, going to this other place where the rally was going to be held. When we arrived there, at Majola, at the rally, we stopped next to the play grounds, and there were people already there. I started looking for Mzwandile, I called him aside with the other members, a few members, SDU members who were there nearby and a few marshals who were there, and I told them about this story that we got these people whom were suspected, but we did not ask them any questions, but Mzwandile told us to question them. We took them to Mr Mqiza's house, whose house was next to the place of the rally. We first searched them and we realised that they were unarmed. When we questioned them about their aim, where they were coming from and where they were going, but they failed to answer that question. They kept on contradicting themselves or they would rather keep quiet at some stage. Mzwandile decided that we should take them to another place where there were no people, and we took them in our car, in a car with Mzwandile and Zalisele Matushane.

MR MGIDLANA: Was this car the same car you used when you first gave them the lift?

MR GULENI: The car that we came with, we left it with Mr Kanandyana, we took this 4x4 belonging to Mzwandile.

MR MGIDLANA: And how many were you, can you recall?

MR GULENI: I cannot remember the number, but I think we were about seven, it was myself, Mzwandile, Teso and Lusindiso Poyo, Zalisele Matushane and this other comrade from Bantu, but I cannot remember his name, he had passed away, he was also an SDU member.

MR MGIDLANA: You were saying that he is now deceased?

MR GULENI: Yes.

MR MGIDLANA: All right, proceed.

MR GULENI: We stopped on the way towards Buje, but it was not very far from the rally. We just stopped the car on the way, we questioned them as to where they were coming from and who they were and where they were going. They said they were APLA soldiers, they were coming from Msigaba, they were going to Umtata. We asked them to explain to us as to what was happening at Msigaba. They were not free when responding to these questions. When one of them was about to answer, one of them would try and stop them and answer. That is when Mzwandile told us to divide them and the others would be asked on the other side, and the other group would be asked on the other side. We did so, I was left with one group and Mzwandile continued questioning this group. Among us, there were people like myself, I had a 9mm pistol. There was Mqiza with an R4 rifle, there was Mzwandile with a G3, Poyo was armed with a pumpgun. He questioned them and the others were watching and I was questioning this other group, that is when we realised that these people were in the camps at Msigaba in a process of integration. They said there was a misunderstanding there amongst them, because they were satisfied with this integration process, because there were people who wanted to continue in the battle. They were not satisfied about this integration, therefore they decided to take their own way. We asked them about the people who were responsible in this TDF, because they said in this process the TDF soldiers were in charge, because those were the camps of the TDF's, as we were still listening to this and questioning these people, we heard a gunshot. When we looked, we realised that the person who was shooting here was Mqiza. Mqiza was shooting directly at this group, the one that I was questioning, and I enquired. Mqiza said that he thought that Mzwandile was giving an order, because Mzwandile was standing behind me and the slope was a little bit steep. Mzwandile said that he did not give the order, therefore we were in trouble. These people who were trying to escape, run away, we called them back and we tried to solve this problem. I advised that we would rather take these people to the nearest clinic or hospital.

CHAIRPERSON: Before you carry on, when that accidental shooting took place, did anybody die?

MR GULENI: No, no one died at the time, but it was clear that one of them was severely injured. We came to an agreement that we would take these people to the nearest hospital, but during that process, before leaving that scene, Mzwandile said "if we do this, we would be putting ourselves in trouble." It was not possible for us to take these people to the hospital and escape prosecution. I said that was a minor issue because it was clear that we did not intend to hit these people, and Mzwandile insisted that these people would later become dangerous to us. Mzwandile said, suggested, that we take these people because we were on our way, and on the way, on the road, he suggested that we take these people away from the rally and go to a safe place. The aim was to kill all these people, that is what he was suggesting. That became more difficult because we couldn't come to an agreement about that. Mzwandile said that we were already in trouble, and we had no other alternative, no one was going to do as he liked. We got into the car, we drove passed Malanganyana, we drove passed the rally. He was just driving slowly. He further suggested that there was a place next to Sinangwana, towards the Slimela Hospital.

MR MGIDLANA: Before you proceed, you talked about Malanganyana, are you referring to a place or are you trying to indicate the time?

MR GULENI: It was in the afternoon, I beg your pardon, the Malanganyana refers to the time, in the afternoon, late in the afternoon. We drove towards the place called Nangwana, where he turned left and we stopped the car. We couldn't solve our problem, still there and we didn't know what to do, we didn't know whether to take these people to the hospital or not. Mzwandile told us that we had two cases now, we were going to be assaulted and be prosecuted. He said we should finish those people off so that we can get out of that trouble, but now the trouble was who was going to do that and we had to be there with those people and divide them as we had divided them initially. Two of them were injured and they were in the car. It transpired that if we finished them off, the sound from the shooting would alert the people in the area, they decided that these people should be stabbed. Knives be used, but it also became impossible and a decision was taken to take them into the van and leave those who were injured and the others, were taken in a van to a place just away from Cwele junction towards Umtata. It was already dark at the time, and there was some drizzle. We got to a bushy area there. Mzwandile suggested that these people be finished off there. He said the person who had started, Mqiza that is, should finish off the job and Mqiza did that. Now after, another question came, what was going to be done with these people after they were dead, and Mzwandile suggested that we go to Bantu so that we could get the tools to dig up for these people. He was residing at Mrs Toyga's place and he took these tools and we went to this place and dug up in the sand for these people, that is what happened on that particular day, that is the role that I played on that particular day.

MR MGIDLANA: Sorry, how many were these guys?

MR GULENI: I think there were six of them. I know I might be mistaken, but they were six, if I am not mistaken.

MR MGIDLANA: Prior to meeting them, did you, prior to meeting them on that particular day, did you know them?

MR GULENI: No.

MR MGIDLANA: When you say you divided them into two groups, how many were they in a group and therefore how many were they in the other group?

MR GULENI: I think I was faced with three people and three people were with Mzwandile on the other side.

MR MGIDLANA: Whilst you were still at the first spot where the shooting took place, how many were injured at that spot, amongst those people?

MR GULENI: Two of them were injured.

MR MGIDLANA: And they were from your group, is that correct? Are you saying that they were from the group that you were questioning?

MR GULENI: Yes, that is correct.

MR MGIDLANA: And then, when you are now at the last spot where the other killing took place, how many were killed there at that spot? Is it four, because you said you left two at one spot who were already injured, and then is it the whole four, assuming there were six?

MR GULENI: Yes, I think there were four of them.

MR MGIDLANA: Do you know what happened to the other two that you had left at that spot? Did you see them again that day?

MR GULENI: I don't know what happened to those two. When we went back there, we did not find them there, and we later heard that two people were found injured, that means they managed to crawl and the people from the community found them and they took them to the hospital.

MR MGIDLANA: So you are saying that you personally did not take part in the actual shooting?

MR GULENI: Yes, I never took part in the actual shooting.

MR MGIDLANA: Did Poyo, Lusindiso, take part in the shooting?

MR GULENI: They also did not take part, he also did not take part.

MR MGIDLANA: So as I understand it, it is only one person who did the shooting which is Mqiza?

MR GULENI: Yes, that is correct.

MR MGIDLANA: Now, during this digging and burying of their bodies, did you participate in the digging, or who dug those, or how did you bury them? Did you bury them in one hole or in different holes?

MR GULENI: It was one big hole. I did not take part in the digging. We were just watching, guarding the place, because we knew that we could get some disturbance.

MR MGIDLANA: Who dug that hole?

MR GULENI: The other marshals, I cannot remember their name, except for Zalisele Matushane and this gentleman from Bantu and if my memory serves me correctly, I am sure that myself, Lusindiso and Mzwandile, we were just standing there, we did not dig the hole. I cannot remember those gentlemen, because we took ordinary marshals and the other people that I can identify because they were closer to me.

MR MGIDLANA: Where did you get the firearms from?

MR GULENI: The firearms were always in Mzwandile's car. At first there was this R4 that I got from Ndumiso, it was always kept in Mzwandile's car, and the G3 belonging to Mzwandile and the Z88 and the Uzzi also, belonging to Ndumiso, but it was also always in Mzwandile's possession. When we were to use these firearm and even when we were still at the rally, these firearms were in the car, meaning that the firearms were always in Mzwandile's position.

MR MGIDLANA: And what were you going to do about these guys after you had questioned them?

MR GULENI: After questioning them, we wanted to collect all that information and try and verify that with the TDF, the TDF that was in charge of integrating the Forces. After that, we would report that to the organisation and tell them that there was that process. We were asking them, because we did not know what is it that they heard, but we wanted to, we had the aim of verifying this information with the TDF. 

MR MGIDLANA: Have you been charged regarding that particular incident in any court?

MR GULENI: Yes, that is correct, yes.

MR MGIDLANA: Has the case been proceeded with to finality yet, up to now?

MR GULENI: No, not at all.

MR MGIDLANA: Out of all these people who were from your group, as it were, what - were they also members from, apart from the marshals, how many were members of the SDU?

MR GULENI: The SDU members were Zalisele Matushane, and this other comrade whose name I cannot remember, there was Notheza, that was the surname of this other person, the third person. Those were the people who were SDU members at the time and myself.

MR MGIDLANA: And the members from MK, apart from Mzwandile whom you believed to be a member of MK, was there any other one who was a member of MK?

MR GULENI: No, no one.

MR MGIDLANA: So the rest were the marshals?

MR GULENI: Yes, they were marshals and the other two were just ordinary comrades, like Mqiza was not a marshall, but he was just a comrade from this other place, and Poyo.

MR MGIDLANA: After having dumped them in that, all right, before they were put in this hole, were their heads or any of their limbs severed from their bodies?

MR GULENI: No.

CHAIRPERSON: What is the point of the question?

MR MGIDLANA: Chairperson, it is just that I want to get it clear because I understand that they talk of the skulls as if there were severing of the bodies. I just wanted to be certain.

CHAIRPERSON: I don't think that is going to affect our decision, whichever way it goes.

MR MGIDLANA: As it pleases Judge.

CHAIRPERSON: All it serves is to raise emotions.

MR MGIDLANA: Yes. 

CHAIRPERSON: Further questions Mr Mgidlana?

MR MGIDLANA: Is there anything that you would wish to add regarding this incident in particular?

MR GULENI: Yes, I would like to say something else.

MR MGIDLANA: Yes, proceed?

MR GULENI: What I would like to mention is that after this whole incident, I reported to the ANC Chairperson. Secondly, I indicated that I was sorry that this happened and when I heard about this Truth Commission, we told ourselves that we have to appear before this Commission to ask for amnesty because we know that it was not a very good thing and it was not our plan for us to do that at that particular time. Even when we were questioning them, we wanted to get those details and use them and make sure that we were protected. It was so unfortunate that someone decided to pull the trigger without any planning from our side. Lastly, because of the fact that this act is not acceptable and I also want to apologise, not only because I want to escape conviction or prosecution, but I am apologising because I feel it is necessary for me to do so, because truly speaking this all happened because we believed that it was necessary for us not to let things happen as they were happening because our lives were endangered and we couldn't let things happen like that, without questioning. But the shooting came, though it was not planned, it was not our intention. 

MR MGIDLANA: Thank you, that is all Judge.

NO FURTHER QUESTIONS BY MR MGIDLANA

CHAIRPERSON: We will take the lunch adjournment.

COMMITTEE ADJOURNS

ON RESUMPTION:

FUNDISELE GULENI: (s.u.o)

CHAIRPERSON: Yes, Mr Malusi?

CROSS-EXAMINATION BY MR MALUSI: Thank you Mr Chairperson. Mr Guleni, are you known by the alias Mutsi?

MR GULENI: (No reply)

MR MALUSI: If I got your testimony correctly sir, it is to the effect that when you first abducted the APLA members, your intention was to get information from them and then to verify their information with the TDF and report to the African National Congress, is that correct?

MR GULENI: We wanted to get information from these members so that we should be able to give a report to the organisation, the ANC.

MR MALUSI: Yes. At what time in the morning did you abduct them or did you give them a lift at the bus stop, if you can still remember?

MR GULENI: I cannot recall precisely the time, but it was just before nine o'clock.

CHAIRPERSON: There is one thing that I just want to check on the chronological order of the incidents - of the three incidents that we are busy with today, which occurred first?

MR MGIDLANA: As I understand it Judge, the first incident was the ...

CHAIRPERSON: No, I am asking the witness.

MR GULENI: The first incident is Mr Mapipa's.

CHAIRPERSON: Yes, and the second?

MR GULENI: The second one is the Voter Education one.

CHAIRPERSON: Now, listen to this question very carefully, there was an ongoing battle between the members of the ANC and the members of the PAC in that area, correct?

MR GULENI: That is correct sir.

CHAIRPERSON: When did the ANC take a decision to combat the problems that it perceived the PAC was causing it?

MR GULENI: I could not say there was a precise time to it, but whenever these threats were imposed by the PAC on the ANC, the regional office will receive a report about that. The ANC was aware all the time that there was a faction between the PAC and the ANC in Port St Johns.

CHAIRPERSON: Look, I don't want a long story. A simple question, from the evidence you give, there was a time when the ANC said "look, we are going to retaliate and we are going to deal with the PAC because it is interfering with our political activities", all I need to know is when did that threshold, when was that threshold crossed? Mr Mapipa was apparently shot because of his association at least with the PAC. The PAC members in Mr - whose home was that - Mposelwa, his house was almost handgrenaded because of the PAC problems, so some time before then there must have been a decision "look, we cannot take this any more, we are going to retaliate". All I want to know is when did that occur?

MR GULENI: A decision was reached when the Chairperson heard about the incident of the Voter Education and he said to us should there be a firing, we must just fire back, but there was a point when it was said "enough was enough", but the decision was just taken that with that incident at that time, he just said that should there be firing, we should just fire back.

CHAIRPERSON: Was a decision about what you should do if you heard that there was an impending attack on you, the ANC?

MR GULENI: When there was a meeting held, but there was no meeting called specifically to deal with this matter. This was reached by people who had just received the message including me. Before we could reach a decision in a formal meeting, this car appeared there and there, but there was no official decision taken by the ANC.

CHAIRPERSON: You are misunderstanding me, you are not the ANC alone, understand that. When was there a policy decision to take on the PAC in that area? I am not talking about your personal decision, I am talking about the organisational decision.

MR GULENI: There was no policy based decision from the organisation.

MR MALUSI: Thank you Mr Chairperson. My instructions on the point I was at, you say you met them at nine in the morning, my instruction is that you met them at seven in the morning, but let's take your nine o'clock in the morning. You picked them up from the hiking spot at nine o'clock in the morning, when was the first shooting by Mqiza, at what time approximately did Mqiza shoot the three people he was interrogating?

MR GULENI: I want to rectify this by saying it was not after nine, I did not say it was nine o'clock. Secondly, it took us some time and when I estimate it was more than an hour, after meeting them, from the time when we met them up to when this shooting incident took place.

CHAIRPERSON: Mr Guleni, you know, I know it is not the first time that you are appearing to make application, we are not a court of law, you don't have to go through all these long details. We would appreciate you answering the question and you don't need to fear that you may be tricked, because if any of these Attorneys are busy leading you up the garden path, I will protect you, do you understand that, so you don't need to fear, do you understand that? You don't need to fear that you are missing out the detail. Just answer the question as simply as you can. You tend to give long stories that we have heard before. Sometimes it is not in your interest to give long answers. Please proceed.

MR MALUSI: If I may remind you, the question is simply this, sir - at what time did Mqiza first shoot at the APLA members he was interrogating, approximately - you may not remember the exact time?

MR GULENI: I can say it was between eleven and twelve o'clock, that is estimation.

MR MALUSI: When you took these APLA members from the hiking spot, if I've got your testimony correctly, it is to the effect that you just wanted information from them, is that correct?

MR GULENI: Yes, we wanted some information, but we didn't know as to what kind of people we were dealing with, meaning that we wanted information, that we were expecting anything to happen.

MR MALUSI: My question then would be, if indeed you wanted details by the time Mqiza shot the three APLA members he was interrogating, you already had those details, that is you already knew they were from an APLA or TDF base in Lusikisiki, that they were on their way to Umtata, that they were not armed, they had no arms on them, is that correct?

MR GULENI: We were still going on, I cannot say yes, that is true, we were still continuing interrogating them or questioning them, but we had some information, we got some details from them at the time.

MR MALUSI: If you had the details I have just related to you at the time Mqiza shot these people, what more could you be asking for, what more could you be looking for from them?

MR GULENI: what we were looking for was to see if we could reconcile these stories from the two groups, because we wanted to see if they were actually telling the truth and their stories were the same, and they were intimidated before we divided them into two groups. We were still getting informations, therefore we wanted to reconcile the stories, the two stories from each groups.

MR MALUSI: Yes. If I got your testimony correctly, it is to the effect that after Mqiza shot the three Apla members, you would then - or you then suggested that they be taken to hospital, is that correct?

MR GULENI: Yes, that is correct.

MR MALUSI: Mzwandile or some other member of the group then suggested that they be silenced so to speak, that is they be killed, is that correct?

MR GULENI: Yes, that is correct.

MR MALUSI: Do you associate yourself with that decision?

MR GULENI: Yes, I associate myself with that decision.

MR MALUSI: What was the reasoning behind that decision, that the APLA members should be silenced? What did you hope to achieve by silencing them?

MR GULENI: First of all what came to our mind, was that there was no way that we could escape that situation and secondly Mzwandile had emphasised the fact that we had no alternative and even amongst us, the atmosphere was not as good.

CHAIRPERSON: I cannot understand your answer. First you say you didn't agree with the plan to kill these members, you argued with Mzwandile and in fact you did not participate in anything to do with their killing, do you recall you said so?

MR GULENI: Yes, that is correct.

CHAIRPERSON: And now you concede that you agreed with that decision, how does that make sense?

MR GULENI: I am saying that I was part of that agreement because after ...

INTERPRETER: Something is wrong with the speaker's microphone.

MR GULENI: After Mzwandile had suggested this, saying that we could not escape that situation, we came to an agreement that we should take his suggestion to silence them. That is why I see myself as part of that agreement.

MR MALUSI: Would I then Mr Guleni, be correct to say you took the decision to kill the APLA members so that you could silence them, so that there could be no testimony to that you shot them? That is Mqiza had earlier shot the other three?

CHAIRPERSON: Is that a proposition you are putting to him or is it the result of his evidence?

MR MALUSI: It is a proposition I am putting to him, I want his comment to that, Judge.

CHAIRPERSON: It must be properly put then, is that the reason.

MR MALUSI: As you please Judge.

CHAIRPERSON: What is the reason that these people were killed?

MR GULENI: The reason to kill these people, it became apparent that as these people were injured, they would be dangerous to us, that was one reason. They would also assault us.

CHAIRPERSON: How would they provide this danger? What kind of danger would they pose?

MR GULENI: These people first of all were APLA members and we knew very well that they were going to fight back, that is the kind of danger that they were posing. Secondly, as the other people were injured and we knew that we were going to be prosecuted.

CHAIRPERSON: Is that the two reasons?

MR GULENI: Yes.

MR MALUSI: Mr Guleni, I want to put it to you that the reason you decided to kill all the APLA members was to silence them so that no prosecution could result from your actions. What is your comment to that?

MR GULENI: Yes, I agree with you and taking also this reason that we were expecting them to revenge.

MR MALUSI: Could you possibly explain to the Committee how could they revenge, because as far as I know, they were not from your area, they did not have any arms on them.

CHAIRPERSON: I think he is talking about a PAC retaliation rather than a personal retaliation. Maybe you can clear it up if you want to.

MR MALUSI: As you please Chairperson. Can you clear this for us, my understanding is that you say you had to kill them so that they do not pose a danger to you, so that they could not retaliate. My question then is, how could they possibly retaliate? First they were not from your area, secondly it appears that they were just in transit, they were passing through Port St Johns and they did not have any arms on them, can you explain that?

MR GULENI: What they were going to do, what came to our mind, was the fact that they were going to report back to their organisation and secondly as has happened during this questioning, we were not convinced that those people were just in transit, we took them as the people who were going to give the report back and come back and retaliate.

MR MALUSI: Your role in the entire incident, you have testified that more than anything, your role was a passive role in that you are saying you did not shoot anyone? When the graves were dug, you were just standing around. Mzwandile according to your version, was the one who was giving orders, is that the case?

MR GULENI: Yes, that is correct.

CHAIRPERSON: Did you not keep guard?

MR GULENI: Yes, I said I was guarding the place with Mzwandile.

MR MALUSI: I just want your comment on this, my understanding of the situation is this that of all the people who were involved in this, you were the only office bearer of the African National Congress, the rest of them were just ordinary members, they were marshals and Mzwandile who it appears, according to your version, was in charge, was an ordinary MK member. You were the only office bearer of the group that was involved there, will you confirm that?

MR GULENI: Yes, that is correct.

MR MALUSI: I want to put it to you that you were not just an office bearer, you were the Chairperson of the Tripartite Alliance in that area and my understanding is that a person of so senior a rank, surely you would have been in charge in that situation?

MR GULENI: Yes, that is correct, yes, I was a Chairperson, but at that time, I was a District Co-ordinator for the elections.

CHAIRPERSON: Were you at a time the Chairman of the Branch or the Region or the District of the ANC?

MR GULENI: I was a Branch Secretary.

MR MALUSI: Be that as it may, the point I am trying to put through to you is that Mzwandile could not have been in charge when you were the senior member? What is your comment to that?

MR GULENI: If we were dealing with any military matters, Mzwandile would be our senior or would be in charge.

MR MALUSI: In fact, Mzwandile has made a statement and it is on page 85 of the Bundle, page 85 onwards. I do not intend to go into his statement in detail, but briefly his statement is to the effect that you were the person who was in charge during the entire incident. You were the person who was giving orders. For example on page 86 of the statement, on page 86 of this Bundle, it is on paragraph 3 on page 86, Mzwandile says -

&#9;"... Mutsi instructed the boy carrying a rifle to shoot. This boy shot two boys."

&#9;What is your comment to that?

MR GULENI: I disagree with that statement in the sense that even when we went to him, we went there because we went there because we knew that his presence would be more effective in this whole process. Secondly if we had an intention or if I had given order to Mqiza to shoot, that wouldn't be done in that busy area, and we would find ourselves in a problem and it is not possible that I couldn't have told Mzwandile to shoot, but what happened is that Mzwandile fired and everyone was shot and he said he thought that Mqiza was giving an order to shoot. I disagree because everyone got a shock when a shot rang at that time.

MR MALUSI: In fact, the statement by Mzwandile that the first APLA members to be shot, were shot on a direct command from one of the ANC members, Mzwandile is saying the command was from you. My instructions from Mr Gasmeni who survived this incident, is to the effect that they were not just shot by accident. They were shot on an instruction from one of the ANC members. Mr Gasmeni does not know who, but Mzwandile is saying that it is you who ordered that they be shot. What is your comment to that?

MR GULENI: I disagree with that statement. I disagree because I never issued any instruction or order and I got a shock when the people that I was questioning, were shot at.

MR MALUSI: According to a statement, your statement, on this Bundle, Mzwandile suggested that these people be stabbed, so that there could be no noise from a firearm, but no one was prepared to stab the APLA members, will you confirm that?

MR GULENI: Will you please repeat the question?

MR MALUSI: According to your statement which you made regarding this incident, it is to the effect that no one was stabbed, none of the APLA members were stabbed, do you confirm that?

MR GULENI: I did not say that no one was stabbed there, but no one - the stabbing was not successful, because we had to leave that other area and go to the other place, because they couldn't be stabbed.

MR MALUSI: Since you are now saying that you did not say that no one was stabbed, in effect, was anyone stabbed at all during the entire incident?

CHAIRPERSON: Your witness, Mr Malusi, the one that you referred to just now, was he a survivor of the stabbing or a survivor of the shooting?

MR MALUSI: Mr Chairperson, he was a survivor of both. He is Michael Gasmeni, he was part of the group of ...

CHAIRPERSON: I accept that. I thought you know, they shot two by accident and they left those two, I presume, hoping to let them die and then they took the other three somewhere else and then there was argument whether they should be shot or stabbed and there is where the balance of the survivors of the shooting, were then stabbed and left for dead. I just wanted to clear up in my mind, that the survivor that you have here as a witness, is he perhaps a survivor of the stabbing or the shooting, but you say he was a survivor of both?

MR MALUSI: My instructions from Mr Gasmeni are to the effect that he was part of the group that was initially shot, but when the first two were dropped off, he was not dropped off, he was then taken with the four that were later shot at. Mr Guleni, if we could get back to the point. I was asking are you now saying someone was stabbed during the course of this incident?

MR GULENI: I cannot say someone was stabbed or not.

INTERPRETER: The speaker's microphone was not on.

MR MALUSI: If I can refer you to page 48 of the Bundle.

INTERPRETER: The last answer is not yet on ...

MR GULENI: I just wanted to give that picture. The place where it was suggested that they be stabbed, was quite a distance from where we were, and that was not successful. That is why we had to finish up the job somewhere else. Those people were at a distance, but at the same area, (indistinct), but I cannot say what happened there where this was taking place, because we were still with the others who were still alive at the time.

MR MALUSI: If I get your answer correctly now, you are saying you were left with the two APLA members who were the first to be dropped off, you do not know exactly what happened to the four who were to be silenced later on?

MR GULENI: That is not what I am saying. We were with these survivors, these APLA members. It was suggested that they be stabbed and the others were in Mzwandile's car that was at a distance from where we were and the aim was for the people who were with us, not to know what was happening there on the other side, but we couldn't execute that plan or go on with that suggestion, leaving the other people who were injured and go and shoot the other people somewhere else.

MR MALUSI: Mr Guleni, let's not labour the point, the Judge had warned you earlier that just confine yourself to answering a question as simply as you can. My question is simply this, that according to your testimony no one was stabbed during the entire course of this incident, would you agree that no one was stabbed, or don't you know if anyone was stabbed at all? A simple yes or no would suffice?

MR GULENI: I do not know whether anyone was stabbed there or not.

CHAIRPERSON: You certainly gave me the impression at least earlier today, when you testified that there was a discussion as to whether they should be shot or be stabbed, and it was decided that they would be stabbed, and you even went on to say that the person who had caused the problem, I forget his name now, was then instructed to do the stabbing. Do you recall you told us that?

MR GULENI: Yes, that is correct.

CHAIRPERSON: Did you not see him stab these people?

MR GULENI: No, I did not see him stabbing.

CHAIRPERSON: Where were you then when this was supposed to have been happening?

MR GULENI: This place is in the same vicinity but from where we were, we couldn't see the car, because we were in some bushy area.

MR MALUSI: You would like the Committee to believe that you were left with the two members who were initially injured in the shooting by Mqiza, you do not know exactly what happened with the four other APLA members, is that what you would like the Committee to believe?

MR GULENI: I know what happened to the four people, APLA members.

MR MALUSI: If you know what happened to them, can you say categorically that they were stabbed or were they not stabbed, that is all I am asking you?

MR GULENI: I can say that a decision was taken to stab them and it was said that they were not going to be stabbed at one place, to avoid the screaming and the other people who were in the car, were going to do that and I was still with these other people. If that plan was successful, even the others would be fetched and stabbed at that particular place, but a report came that it was impossible to stab these people and it was suggested that they should be finished off somewhere else.

MR MALUSI: Mr Guleni, my instructions from Mr Gasmeni are that although he was injured, his recollection of the incident is that the two members who were initially left behind, the two who were the first to get injured, were just dropped off without any guard and then the bakkie moved off with the other four members who had survived, what is your comment to that?

MR GULENI: Yes, I agree with that statement, that is correct. Yes, he was taken because this plan of stabbing them failed, meaning that these four APLA members were taken with, because they were going to be finished off by shooting, because we couldn't stab them.

MR MALUSI: Yes. Were you in the bakkie when the bakkie left with the four APLA members, were you there in the bakkie?

MR GULENI: Yes, I was in the bakkie.

MR MALUSI: Before the four APLA members were finally shot, were they stabbed at all?

MR GULENI: No, I do not remember seeing anyone with a stab wound.

MR MALUSI: My instructions from Mr Gasmeni are that whilst they were in the bakkie, the four of them, they were actually stabbed. He showed me at least five stab wounds on his back before they were shot. They were stabbed by members of your group, do you remember seeing that?

MR GULENI: No, I do not remember seeing wounds. I did not see whether they were stabbed or what.

MR MALUSI: The question may seem obvious, but now with your testimony it is not so obvious, what are you applying amnesty for with respect to this Port St Johns incident, the killing of the five APLA members, what is it exactly that you would like the Committee to give you amnesty for?

MR GULENI: I apply for amnesty for the following, shooting of the members, APLA members and killing them and to hide their bodies. Those are the offences that I apply amnesty for.

MR MALUSI: But first with regard to the shooting, you did not take any part in the shooting, according to your testimony?

MR GULENI: Yes, that is correct.

MR MALUSI: With regard to the burial or the concealment of the bodies of the deceased, according to you, you were just standing aside, you did not dig the graves, you did not put in the bodies, is that correct?

MR GULENI: Yes, that is correct. I was never involved in the digging, but I was involved when we went to fetch the tools and the other people were digging and I was there, guarding the place, that was my role.

MR MALUSI: So in brief, you are saying to the Committee "I did not do these things, I was there, but I ask the Committee to give me amnesty"?

CHAIRPERSON: Isn't one interpretation of his evidence that he is guilty on the basis of common purpose? That he kept watch while the others did all these things? Doesn't his criminal liability flow from that?

MR MALUSI: It may well flow from that, Mr Chairperson.

CHAIRPERSON: ... that he did not do anything, he participated in the event which may or may not make him guilty of something?

MR MALUSI: That is why earlier on in my questioning of the applicant, I asked him specifically does he associate himself with these events, because I had that in mind. I beg your pardon. A final question sir, Mr Guleni, I want to put it to you that in the killing of the five APLA members, you had no political objective, the killing was purely personal on the part of your group. It was an attempt to avoid prosecution? What is your comment to that proposition?

MR GULENI: I disagree with that in the sense that when we were told that they were suspected APLA members, we had to rush because we wanted to prevent them from doing things that was threatening us as the organisation, and as we were questioning them, we knew that APLA members were once in Port St Johns and area, were dangerous in different, many ways. When we went to search them there, we wanted to see because if they were armed, we would then say their intention was to disturb our rally and be violent. We questioned them, but this shooting - the shooting incident without my order, took place and we did not know that we were going to be told about the people, APLA members, who were present in the area. It is political in the sense that this whole incident in political because we went there with the aim of preventing eminent attacks, more especially on that particular day, there was going to be this big rally that was going to be addressed by the General.

MR MALUSI: Even if we were to accept your proposition, even if we were to accept what you are saying, on your own version, it may have been political to first abduct them, to avert a precipitated attack, it may have been political to question them about their motives to establish clearly that they wanted to attack you or they did not want to attack you. It may even have been political to assault them during the interrogation, but the point I am putting to you is simply this, according to your own version, they were shot by accident, and after being shot by accident, you decided to kill them. I am saying the killing of the APLA members was then no longer political? There could be no political objective with the actual killing, the killing was purely to cover your backs, so to speak?

MR GULENI: As far as I am concerned, first of all we did not know these people, there was no reason for us to kill them if this whole thing was not political. What led us to finish them off, it is because there are those reasons as we have stated, but above that, we knew that if they could go back and report back to their organisation, and tell them what had happened, we knew that it was going to put us in trouble, because we were always attacked, all the time.

MR MALUSI: Let's get to what you are saying, you are saying if one of them goes and makes a report that he was attacked by the ANC, he was attacked by your group, it would give you problems. Indeed two of them did survive that. Did the counter-attack materialise? Did you get into any other trouble of a counter-attack by the PAC, problems with the PAC, except for your prosecution by the criminal justice system? Except for that, did anything else materialise?

MR GULENI: No, I do not remember them coming back, the survivors that is.

CHAIRPERSON: Did you not participate in the Workshop incident?

MR GULENI: Yes, I was present.

CHAIRPERSON: Have you been charged for anything arising out of that?

MR GULENI: No, I was never charged.

CHAIRPERSON: That is why I am saying, listen to the question.

MR MALUSI: If you will pardon me, if I recollect correctly, the killing of the APLA 5 members was after the other two incidents, that is the attack on the Workshop and the attack on Mapipa, am I correct in that?

MR GULENI: Yes, that is correct.

MR MALUSI: In effect, after Mr Gasmeni survived the attack and after the bodies of the deceased were recovered, would I be correct to say there was no further attack on the ANC by APLA, resulting from the abduction and the killing of the five APLA members?

MR GULENI: No, I do not remember about any attack that took place.

MR MALUSI: What would your comment be then if I put it to you that this fear on your part that there would be a counter-attack, retaliation by APLA/PAC is merely a fabrication, an after-thought on your part?

MR GULENI: That is not correct and if you can allow me the opportunity, I will give you the reasons.

MR MALUSI: Certainly, give the reasons.

MR GULENI: First of all, after this shooting incident that took place in the school, there were roadblock operations that were conducted by the military and the police. The APLA members were arrested at that time and the firearms confiscated, they were at the police station. That was a sign that we could not undermine the fact that they would go back and report and come back and retaliate. Though the statutory forces intervened, they managed to be - they were always arrested on their way to Port St Johns with firearms in the roadblocks.

MR MALUSI: A final question, my instructions from Mr Gasmeni are that even after he and the other survivor were submitted to the Port St Johns Hospital, members of the ANC so he believes, actually visited the hospital and attempts were further made on their lives. They had to be transferred from Port St Johns Hospital to other hospitals in the Transkei, do you have any knowledge of this?

MR GULENI: No, not at all.

MR MALUSI: So I take it that you would not have been involved in that?

MR GULENI: Yes, that is correct.

MR MALUSI: Thank you for your time, sir. Thank you Mr Chairperson, no further questions.

NO FURTHER QUESTIONS BY MR MALUSI

CROSS-EXAMINATION BY MR MGXAJI: Thank you Mr Chairperson. Mr Guleni, on page 24 of the Bundle of documents, in the application form, you are requested to state the political objective in the act for which you filed the application for amnesty. You say -

&#9;"... we believed Mapipa and others were out to destabilise the ANC election campaign in Port St Johns."

&#9;I will stop there. Do you still advance that as the political objective for the Mapipa case?

MR GULENI: That is correct.

MR MGXAJI: Mapipa was murdered, I use the term murdered deliberately, on the 23rd of March 1994, right?

MR GULENI: That is correct, but I cannot confirm the date.

MR MGXAJI: The Voter Education Workshop was held on the 28th of March 1994, do you have a recollection of that?

MR GULENI: That is correct.

MR MGXAJI: Mr Mapipa at Nzimbeni owned a shop and was therefore a businessman, is that correct?

MR GULENI: That is correct.

MR MGXAJI: In your testimony proffered by you here, in all the alleged clashes you enumerated the meetings held by structures in which ANC and PAC were involved, you only mentioned Mr Mposelwa and you did not mention Mr Mapipa. Would you change that as an after-thought or do you still adhere to that?

MR GULENI: I would not change that.

MR MGXAJI: Therefore even in the Ratepayers Association alleged clashes in relation to the municipality governance in Port St Johns, Mr Mapipa residing at a rural locality, Nzimbeni is certainly not involved, are you with me?

MR GULENI: I would not say that he was not involved, but he was not personally there.

MR MGXAJI: And therefore at no stage in relation to the Voter Education, in relation to the incidents you enumerated in your evidence, he was not as Mapipa involved, right?

MR GULENI: Please rephrase your question, or repeat your question.

MR MGXAJI: In relation to the alleged clashes relating to the municipality at Port St Johns, Mr Mapipa as Mapipa, was not involved? Do you agree with me?

MR GULENI: Yes, that is so.

MR MGXAJI: I have indicated that Mapipa is owning a shop at Ngqeleni. That shop was burgled into on the 25th of March 1994, do you have any knowledge of that?

MR GULENI: I don't have any knowledge regarding that.

MR MGXAJI: The Transkei Defence Force ransacked Mr Mapipa's house. My instructions are on the 26th, at dawn on the 26th of March and there was nothing in terms of arms that were found in terms of strangers that were found at his house. You may not know this, but will you dispute it?

MR GULENI: I don't have any knowledge thereof, therefore I cannot add or subtract on that.

MR MGXAJI: In so far as the election activities or campaign by the ANC, in your evidence, you have not at any given moment, testified about Mapipa's involvement, right?

MR GULENI: That is correct.

MR MGXAJI: Okay. Mzwandile Jagu, to whom you attribute almost everything in your application for amnesty, was he known to you as in 1994, March?

MR GULENI: Yes.

MR MGXAJI: And you make this Committee believe that he was an MK member?

MR GULENI: According to him, yes, he was one.

MR MGXAJI: On page 74 of the Bundle of documents, the ANC Branch Port St Johns says about Mzwandile Jagu - I will read for you -

&#9;"... Mzwandile Jagu availed in ANC office in 1994, there is not that much I know him, except that he introduced that he is an MK member and such he voluntarily assist ANC in his vehicle."

&#9;Right?

MR GULENI: Yes.

MR MGXAJI: Are you a trained MK member? Whether you were trained inside the country as he have so stated?

MR GULENI: I have been trained as a Self Defence Unit member.

MR MGXAJI: You certainly knew MK combatants? Did you know Mzwandile Jagu as a Commander of any Unit? I will tell you why I put that question. 

MR GULENI: I do not know whether he was a Commander or not.

MR MGXAJI: Before I proceed, let me tell you this - Mzwandile made a confession on the 20th of April 1995 before a Magistrate at Elliotdale about this Mapipa incident. Do you have any knowledge about that?

MR GULENI: I don't have any knowledge thereof.

MR MGXAJI: You certainly wouldn't dispute that Mzwandile is the State witness in the High Court case in which you and others are the accused, right?

CHAIRPERSON: Is Mzwandile a State witness did you say?

MR MGXAJI: Yes, in the High Court case. You certainly would not dispute that? If you dispute, I tell it, it is so. What is your answer?

MR GULENI: I don't have any knowledge thereof.

MR MGXAJI: Mzwandile further made a statement to the Investigating Officer about this Mapipa incident and that statement is available. Would you also dispute that?

MR GULENI: I would not dispute that.

CHAIRPERSON: Mr Mgxaji, do you intend calling Mzwandile to testify?

MR MGXAJI: In fact, I intend applying to this Committee that Mzwandile Jagu being alive and around, further he being the person to whom the applicant in his testimony, he attributes almost everything as the person who commanded him, I would strongly take this earnest view that the Committee in adjudicating on this application, shall subpoena Mzwandile Jagu for its advantage and for doing justice to the application before this Committee.

CHAIRPERSON: We will cross that bridge when you choose to raise it. I just wanted to know whether you were going to call him as a witness, otherwise you have serious difficulties putting to this witness the contents of those statements.

MR MGXAJI: His Lordship's response, I didn't get it clearly, I am not too sure whether it deals with my intended application or it deals with what it perceives will be the inability on the part of the applicant, not to be able to answer to what I put to him and as having obtained from a statement in the police docket.

CHAIRPERSON: Mr Mgxaji, all I am saying is that it is pointless putting the contents of any statement to a witness unless you are going to call that witness to testify.

MR MGXAJI: Before I proceed My Lord, may I perhaps get an intimation on Mzwandile being subpoenaed by this Committee for purposes of obtaining his testimony about a matter in which he is so implicated and in relation to which he is presently a State witness? Can I get an indication as to the attitude of the Committee.

CHAIRPERSON: It is not a question of attitude, we have not subpoenaed anybody to come testify in this hearing, we have no intention of doing so, unless otherwise persuaded. 

MR MGXAJI: Mr Chairperson, having indicated that given the material nature of Mzwandile's testimony, wouldn't this Committee subpoena him?

CHAIRPERSON: I have just said we have no intention of subpoenaing anybody. If you want to subpoena him, you can do so at your leisure.

MR MGXAJI: If I put to this witness what I am instructed to put, certainly this witness is in a position to say "I do not know" or tender an explanation. It is within his powers, would the Chairperson also forbid putting such questions emanating from my instructions?

CHAIRPERSON: No. You cannot put as a fact the contents of a statement without calling such witness, but you can ask for commentary. You are of course stuck with the answer.

MR MGXAJI: As His Lordship pleases. Now, my instructions Mr Guleni, are that Mzwandile Jagu was a shopkeeper at Port St Johns, he coming from Kokstad, in fact, that he is from Kokstad also appears in his statement attached to the Bundle of documents. Would you dispute that?

MR GULENI: At that time, I did not know where was he from. All I knew is that there was a shop that was in Port St Johns in Ngqeleni.

MR MGXAJI: That is the shop in which you always met him if you wanted him, am I right?

MR GULENI: That is not so. I only went there once when he actually went there to show me the shop, driving in his van.

MR MGXAJI: You have made mention of Ndumiso Sgotyana, I will come back to Mzwandile, is it correct that Ndumiso Sgotyana was killed in the taxi violence in Port St Johns?

MR GULENI: That is correct.

MR MGXAJI: Now, was he an MK member?

MR GULENI: No, he was not.

MR MGXAJI: Mzwandile, according to you approached you at Port St Johns reporting about a Unit in town that was to attack you? Do I recall you well?

MR GULENI: That is correct.

MR MGXAJI: Where were you when you received this report?

MR GULENI: I was in town, Port St Johns town when I got that report.

MR MGXAJI: At what time was it, sir?

MR GULENI: It was in the afternoon, I cannot really remember the precise time, but I was in town, it was in the afternoon.

MR MGXAJI: Estimably at what time, I will tell you why I pester you to come out clearly on that issue of time. 

MR GULENI: I have said that I am not sure exactly, but I heard this during the day and again in the afternoon, late in the afternoon through Ndumiso.

MR MGXAJI: Let's begin with during the day, from whom did you hear it?

CHAIRPERSON: Mr Mgxaji, please you have to help the Panel. I assume that the families are opposing the granting of amnesty in this respect, is this correct?

MR MGXAJI: That is correct sir.

CHAIRPERSON: Can you tell us on what grounds the opposition is based?

MR MGXAJI: On the basis that one, the applicant murdered Mr Mapipa not for a political objective, secondly that in relation to Mr Mapipa's murder, he did not make a full disclosure.

CHAIRPERSON: What do you say really happened there?

MR MGXAJI: Am I not perhaps putting the cart before the horse, shouldn't that be what I ask from the witness as emanating...

CHAIRPERSON: No, Mr Mgxaji, I need to know on what basis you are cross-examining. We are not going on a fishing expedition, that you can be sure of. We need to follow your ...

MR MGXAJI: On the basis of the statement made by the applicant and that statement appears in printed form, on page 36 of the Bundle of documents. Is His Lordship satisfied?

CHAIRPERSON: You carry on then, I am trying to work out on what basis, page 36, carry on.

MR MGXAJI: May I express this view or impression which I seem to hold that I do not want to believe that His Lordship will be able to tell me what question to put, if it emanates on what the applicant has said in his statement in the Bundle of documents?

CHAIRPERSON: Mr Mgxaji, all I asked you is on what basis is the opposition. We haven't got time to busy ourselves with fishing expeditions, if there is a concrete case, then let's get on with it. That is all I am saying.

MR GULENI: My Lord, I don't want to believe that I will be here if I don't believe on the instructions of the applicants, they do not have a concrete case.

CHAIRPERSON: Let's hear it then.

MR MGXAJI: Mr Guleni, you say you first heard of this alleged attack during the day, my question is from whom did you hear that? My question is from whom did you hear that?

MR GULENI: Mzwandile was the first person.

MR MGXAJI: And that is during the day? Now, in your statement you say immediately after the sundown, you were informed by Mzwandile, do you still say so?

CHAIRPERSON: What was he informed by Mzwandile after sundown?

MR MGXAJI: From the statement he says he has seen Mapipa and his Unit driving out of town.

CHAIRPERSON: ... that is quite different from being informed that Mapipa is going to attack us.

MR MGXAJI: On the first paragraph it reads -

&#9;"... on the following day ( if I start the sentence in the middle) we were informed that Mapipa's Unit has arrived in Port St Johns town to attack us."

&#9;And I asked that they were to be attacked by this alleged Unit, from whom did he get it, he says during the day, I first heard it and then a little bit in the afternoon, I am not too sure. My follow up question was, let's begin with during the day, from whom did you hear it.

CHAIRPERSON: He says Mzwandile.

MR MGXAJI: During the day you heard it from Mzwandile and you say even though you are not able to tell the time, but it was in the afternoon. Let me first ask, when you heard it from Mzwandile during the day, where were you?

MR GULENI: I was in town.

MR MGXAJI: In the afternoon, from whom did you hear it?

MR GULENI: I said in the afternoon, Ndumiso told me that, I was hearing it for the second time.

MR MGXAJI: Estimably at what time in the afternoon?

MR GULENI: I cannot be sure, but it was well in the afternoon.

MR MGXAJI: You also are not sure when you were told by Mzwandile during the day, at what time was it?

MR GULENI: Could I perhaps explain this.

MR MGXAJI: Yes.

MR GULENI: I heard from Mzwandile that we might be attacked, and Ndumiso confirmed that. When he came back from Lusikisiki, late in the afternoon, he said this group has already arrived in Port St Johns. In the afternoon he had already come to confirm, he called them the Third Force, that it had arrived. Whilst he was still explaining to us, that group came. He was just stressing what he had already highlighted before, or informed us about before.

MR MGXAJI: During the day, was it before one when Mzwandile told you that?

MR GULENI: I am not sure whether it was before one o'clock or not.

MR MGXAJI: You now say Mzwandile further informed you that the Third Force had arrived, did I get you well, for the second time now?

MR GULENI: Yes, that was the term that he used, that they have arrived, that is what he used to call them, Third Force.

MR MGXAJI: That was ...

CHAIRPERSON: I think the issue here is, in your statement you say Mapipa's Unit you were informed had arrived at Port St Johns, and you now say that he told you that the Third Force have arrived. Deal with that.

MR GULENI: The Third Force and the Unit, it is one and the same thing, that was the way that he expressed himself, or that is the way he referred to that Unit that had just arrived in Port St Johns, that was a Third Force Unit that he was referring to.

MR MGXAJI: On this certain occasion, you met Mzwandile. Do you recall at what time was it?

MR GULENI: I cannot recall the time, but it was after sunset.

MR MGXAJI: Did he tell you where is this Third Force?

MR GULENI: He did not say exactly where it was, but he just said they have already entered Port St Johns and whilst he was still trying to explain that, they appeared.

MR MGXAJI: You also did not ask from whom he got what he told you?

INTERPRETER: Please repeat your question.

MR MGXAJI: You also did not ask Mzwandile what he was telling you?

CHAIRPERSON: Did you ask Mzwandile where he got to know or who told him this? How did he come to know that this Unit has arrived?

MR GULENI: I do not remember asking him, because the fact that this car appeared, disturbed us, so I did not have time to ask him.

MR MGXAJI: Let us pause there and put to you this question. Was Mr Mapipa known to you before Mzwandile's report to you on that day?

MR GULENI: Yes, I knew him before.

MR MGXAJI: Was it known to you what car was he using?

MR GULENI: Yes, I knew.

MR MGXAJI: In your statement you say Mzwandile informed you that he had seen Mr Mapipa and his Unit driving out of town.

MR GULENI: Please repeat your question.

MR MGXAJI: In your statement on page 36 in its typed form, you say Mzwandile informed you that he had seen Mr Mapipa and his Unit driving out of town, right?

MR GULENI: That is correct.

MR MGXAJI: And at the time that he was telling you that, Mr Mapipa's van was known to you, right?

MR GULENI: Yes, I knew his van, I would easily identify it.

MR MGXAJI: With whom were you when Mzwandile gave this report to you?

MR GULENI: I was with Ndumiso and another comrade from Etombo, Munla, a comrade from Etombo.

MR MGXAJI: Yes, and who else?

MR GULENI: The people who were present there, but they were at the town hall, was Mr Mfeketho and Vusumsi, but they were not actually in our company, but they were in the vicinity of the town hall.

MR MGXAJI: My question is, at the time Mzwandile gave this report that he had just seen Mr Mapipa's van and his Unit driving out of town, with whom were you? You have counted Ndumiso, Munla, who else were you with?

MR GULENI: It was only that two.

MR MGXAJI: You say you could not wait any moment and you jumped on to Mzwandile's 4x4 vehicle. If you get out of Port St Johns, did Mzwandile tell which direction this Mapipa van was taking?

MR GULENI: He never told us, he was driving, he just followed.

MR MGXAJI: He followed the van to the direction it had gone. Which direction was that?

MR GULENI: It was going towards Etombo.

MR MGXAJI: You also do know that Mr Mapipa resides at Nzimbeni and the way to Nzimbeni takes the Etombo/Umtata direction, is that correct?

MR GULENI: That is correct.

MR MGXAJI: When you jumped into Mzwandile's 4x4 van, you were in town, correct?

MR GULENI: That is correct.

MR MGXAJI: And you were not under attack at that time, is that correct?

MR GULENI: That is correct.

MR MGXAJI: And therefore there was nothing prompting you to pursue Mr Mapipa's van for you were not under attack? That is also correct?

MR GULENI: I would not say so. 

MR MGXAJI: Tell us what could you see?

MR GULENI: The thing that prompted us to follow was that we were told that there is Mapipa and his Unit leaving. 

MR MGXAJI: Even in its literal translation, leaving means getting away from you? My question is at that time, you were not under attack, is that correct?

MR GULENI: That is correct.

MR MGXAJI: When Mzwandile was driving behind this Mr Mapipa's van, what were you seeking to achieve?

MR GULENI: Our intention was to attack them.

CHAIRPERSON: What political objective did you seek to achieve by attacking them?

MR GULENI: We were trying to counter the fact that they were going to attack us, thus we decided to launch the attack first.

MR MGXAJI: If a child comes to me and says Mr Mgxaji, a snake next to the river is going to attack you, as a grown up person, should I believe that?

MR GULENI: It depends really on the circumstances prevailing at that time. 

MR MGXAJI: Be reasonable standards, a reasonable man is not expected to believe that, will you agree?

MR GULENI: I do not want to say he would not believe or not. One would believe, one wouldn't. It entirely depends on the situation.

MR MGXAJI: Your situation, you were in town with Ndumiso and Mundla according to you, Mzwandile arrives, he says I have seen Mr Mapipa's van and Unit leaving town and you were in town, in other words, they were going away from you? You wasted no more minute, jumped into the van. You have said, you wanted to attack them, you were not under attack yourselves. My question is did you have any reason to believe that Mr Mapipa's van which was going the opposite direction towards his home, was to attack you at the moment?

CHAIRPERSON: But he never said that, Mr Mgxaji. That is not his testimony. He never said that when he rode behind the victim's van, that there was imminent prospects of an attack on him.

MR MGXAJI: It is exactly on that score that I want to elicit from him how on earth could he believe that they were to be attacked when a man driving his van, is going away from them.

CHAIRPERSON: On your argument, then he must be guilty of murder?

MR MGXAJI: I will submit Mr Chairperson, is also putting the cart before the horse.

CHAIRPERSON: I am not putting the cart before the horse, he has pleaded guilty. He has said here that he is guilty of murder. He is not saying that he is pleading not guilty or he is not guilty and he acted in self-defence.

MR MGXAJI: I am not asking him about his guiltiness of murder or not, I am asking about what led him to commit murder. I think that is what this Committee is interested in.

CHAIRPERSON: Well, then get down to that. It doesn't help us to determine anything by knowing whether the attack was imminent or not.

MR MGXAJI: Judge, the applicant says we murdered Mapipa for a political objective. His Lordship is here to consider that application as to whether in terms of the Amnesty Act, it accords well with a political objective and one makes that assessment from the circumstances appearing on the testimony of the applicant.

CHAIRPERSON: Mr Mgxaji, I don't want to be rude to you, but I don't need you to tell me what I am here for. I am just trying to put into perspective what your job is, without telling you that. In these hearings, applicants generally come and say that I am guilty of murder and I am looking for amnesty. If you are opposing it on behalf of families, on one or other basis, let us get to the crux of the matter.

MR MGXAJI: Mr Guleni, at the time that you chased Mr Mapipa's van, is it correct that you were not under attack?

MR GULENI: That is correct sir.

MR MGXAJI: Now you say you caught up with him, overtook him. When you did so, where were you on the direction towards Etombo/Umtata direction?

MR GULENI: In Mampube.

MR MGXAJI: And on overtaking it, were you attacked?

MR GULENI: We were not attacked.

MR MGXAJI: With whom were you in Mzwandile's 4x4?

MR GULENI: It was myself and Mundla and Mzwandile and Mr Sgotyana, it was the four of us.

MR MGXAJI: On overtaking it, who fired at it?

MR GULENI: We all fired.

CHAIRPERSON: Who fired first?

MR GULENI: Ndumiso fired first.

MR MGXAJI: Did you see where exactly in the car, he fired?

MR GULENI: I could not see.

MR MGXAJI: Who followed Ndumiso in firing?

MR GULENI: I cannot recall, but we all fired.

MR MGXAJI: After Ndumiso fired, what was your observation on Mr Mapipa's car?

MR GULENI: There was hardly a split of a second when, after the first shot, you know we all immediately fired.

MR MGXAJI: Where did you direct your firing, in the car?

MR GULENI: In the direction of the car.

MR MGXAJI: When you fired, what political goal did you seek to be realised?

MR GULENI: We wanted to counter the attack on us or on the organisation.

MR MGXAJI: It is correct that nobody gave you time when that alleged attack would take place on you, is that correct?

MR GULENI: That is correct sir.

MR MGXAJI: And when you fired at Mr Mapipa, there was no determined attack sought to be thawed, that is also correct?

MR GULENI: I had already said that we were trying to prevent a possible attack from them.

MR MGXAJI: Now, you say in your statement -

&#9;"... one Mapipa was fatally wounded."

&#9;When did you realise that he was fatally wounded?

MR GULENI: I saw him when we got there at the scene, when Mzwandile was enquiring as to where the others were and when he was finishing him off with the firearm that he had.

MR MGXAJI: The one who was admitted to hospital, do you know who he was?

MR GULENI: No, I do not know that one.

MR MGXAJI: From where did you get to know that there was one who was admitted in hospital?

MR GULENI: I heard the people talking about that, after the incident.

MR MALUSI: Mr Chairperson, may I be excused for a moment, I need to attend to a call of nature. Thank you.

MR MGXAJI: Excuse me sir, I did not hear your answer, may you do me a favour by repeating it?

MR GULENI: I got that information after the next day, I got that from the people who were talking, saying that one person was admitted or taken to the hospital.

MR MGXAJI: Do you know or did you get to know who that person was?

MR GULENI: No, I did not get to know that person.

MR MGXAJI: I tell you it was Mbuyiselo Mkunwana from Nzimbeni. Would you dispute that?

MR GULENI: No, I cannot dispute that.

MR MGXAJI: I further tell you that Nkosipendule Mseswa was another person who was with Mr Mapipa, are you in a position to dispute that?

MR GULENI: No.

MR MGXAJI: And further that these two, Mbuyiselo and Nkosipendule, were local students at Port St Johns, would you dispute that?

MR GULENI: No, I will not dispute that, but I did not know them, I was never with them at school.

MR MGXAJI: Mr Guleni, as a trained person, before you get to attack or ambush, you first check the identity of your target, do you agree with me?

MR GULENI: Yes, that is correct.

MR MGXAJI: When you attacked Mr Mapipa's motor vehicle, you did not do anything to ascertain with whom he was in that motor vehicle, am I right?

MR GULENI: Yes, that is correct.

MR MGXAJI: You agree with me that the men who were with Mr Mapipa in the van, were not APLA members, nor Third Force Units as Mzwandile advised you, do you agree with me that those people had no reason to be shot at by you? There was no political reason to be shot at by you? What do you say to that?

MR GULENI: Yes, there was political motivation to that, a reason.

MR MGXAJI: Let me hear you sir.

MR GULENI: First of all, that is not the very first encounter ...

MR MGXAJI: No, I am asking about - you directed your firing to particular targets, let's deal with those targets.

MR GULENI: We knew that that car was always used by Mr Mapipa and the people who were - rather his bodyguard, and were APLA members. We were made to believe that if we were told that they were coming from that place, those were the very same people who were with him, who were APLA cadres.

MR MGXAJI: You have just said the guys that were with Mr Mapipa, were alive and are from Port St Johns, and were students? You did not ascertain that they were Third Force members or APLA members. On what basis would you say they were APLA members or Third Force members?

MR GULENI: We were of the belief that they were APLA members because they would use that car, and all the time they were threatening people and as we were told that they were going to attack, we really believed those rumours because we thought that those were the people at that particular time, in that particular car, those were the people who were coming to attack.

MR MGXAJI: Even though you had no basis for that belief, you still maintain it was a correct belief?

MR GULENI: Will you please repeat your question sir?

MR MGXAJI: Although at that time you had no basis to hold the view of belief that they were APLA members, Third Party Units, do you still as you testify now, hold that belief?

CHAIRPERSON: Does it matter what he believes now, isn't it important to know what he believed then?

MR MGXAJI: I am still getting there, if he may answer. What is your answer sir?

MR GULENI: I cannot say that - I got that information from you, I had no idea about that, that they were students.

MR MGXAJI: I put it to you that from the moment you got into Mzwandile's 4x4, one not being under attack, two having no basis to hold that those were APLA or PAC members, you were not carrying out any political objective. What would you say to that?

MR GULENI: I would disagree with that statement.

MR MGXAJI: Mr Chairperson, I want to find out whether this Committee may afford the victims the opportunity to call a witness, they couldn't be able to finance to this hearing.

CHAIRPERSON: I don't follow, is it a witness that is not here?

MR MGXAJI: He is, presently My Lord, he not here. 

CHAIRPERSON: And the reason for him not being here is that the family could not afford to bring him.

MR MGXAJI: Afford his bus fare.

CHAIRPERSON: To come here?

MR MGXAJI: To come here. He is available in Umtata and he was with Mr Mapipa, in fact, seated next to him, in the front seat. Essentially his testimony would be on the basis that it was not only two attackers at Mr Mapipa's van, that were there, and what would be sought to be proved by that evidence will be that the applicants have not made a full disclosure.

CHAIRPERSON: Mr Mgxaji, why wasn't the Commission approached earlier than today about that, so that arrangements could be made if necessary?

MR MGXAJI: It is a matter My Lord, which I on the instructions of Mr Mapipa, the brother to the deceased, raised with Mr Japhta. Unfortunately he indicated that only two from the victims' family could be accommodated. It is a matter also in the course of this morning, I intimated to the Leader of the Evidence, but given the hour, it is a matter which we couldn't be able to thrash out and see whether it could be accommodated. It is for that reason that I put it before His Lordship.

CHAIRPERSON: Okay, let's look at this factually. I would like the families to hear what I am going to ask. If one reads the Act properly, it talks about a bona fide belief, that is why I asked you the question just now, what is important - what he now believes or what he believed then? The importance of that question is, assuming what you put to them, to the witness, correct factually, that they were not APLA members at the time, but they were students, two things. You've got that concession from the witness already, so if that witness is going to come and say "I was a student and only two people ..." or whatever he is going to say about the number of people that came to the van, is that going to change anything substantially? Let's examine it, I mean I haven't got an answer yet.

MR MGXAJI: Yes. I may submit My Lord, that in so far as the question of full disclosure, it might be so when one looks at the state of mind of Mr Guleni at the time, that he might genuinely have believed that those were APLA members, that view would not be far-fetched, but also the second leg of a full disclosure. On the number of people who attacked that motor vehicle, certainly that witness having been there and the survivor, will proffer testimony to the contrary. Those are my instructions, if the Committee attaches any value to it.

CHAIRPERSON: Mr Mgxaji, I have just spoken to my colleagues here.

MR MGXAJI: Yes, My Lord.

CHAIRPERSON: And we are unanimous in one aspect, it is that where we are talking about an ambush which is the case here, an ambush and an attack, does it matter whether two people went to the van or five or ten, is that going to make a substantial difference? I don't know how many people you are talking about, maybe you better put it to him and it may clear your own mind. I mean, I have come across cases where people said we stabbed him five times, and the Doctor says seven times, so the victim got stabbed. That is the important issue. Maybe you can put it to him that it is going to be said that how many people your instruction says, went to the van, in fact went, and let's see what he says.

MR MGXAJI: One thought of an injunction which His Lordship would make, that of putting maybe as a fact or proposition to the applicant and the injunction would be that if that person is not going to be called to proffer evidence, should we subject the applicant to that line of questioning? One sought to avoid that ...

CHAIRPERSON: ... let me be helpful to you then. What does your instruction say, how many people went to that van?

MR MGXAJI: The instructions from the family and from the witness of the family is that there were two vans with two Units who were (indistinct)

CHAIRPERSON: The victim?

MR MGXAJI: The victim. All of them participated in the attack, there were not four. There could be eight or ten in number. Now, I put that to His Lordship, not because I may not have or think what could be the finding of another person, in this case, His Lordship, but I wouldn't want a situation where in having been instructed to represent the victims, I get out of this Committee without having ...

CHAIRPERSON: Put the case.

MR MGXAJI: All that I could as instructed.

CHAIRPERSON: Fair enough. I would put it to him then. Mr Guleni, the proposition is that in chasing and ambushing Mr Mapati's vehicle, there were two motor vehicles that chased him, first of all what do you say about that? There were two vehicles that ambushed him?

MR GULENI: That is not true sir.

CHAIRPERSON: That is not true. They say further when the van, when Mr Mapati's van was finally brought to a standstill, far more than two people went to Mr Mapipa's vehicle.

MR MGXAJI: Mapipa.

CHAIRPERSON: Sorry, Mapipa. 

MR GULENI: That is also not true Chairperson, only two people approached the car, myself and Mzwandile.

CHAIRPERSON: How many people did you find there in that car?

MR GULENI: We found two people, one who appeared to be dead and the other one was Mr Mapipa, who was later finished off by Mzwandile.

CHAIRPERSON: Nobody else?

MR GULENI: From the look of things when I looked at that car, there was no other person. As I said, it was dark and I only looked in the front seat of the car, and Mzwandile was standing in front of the vehicle and he was asking, but since the van had a canopy, we did not look at the back and I am not sure if there was anybody else there.

CHAIRPERSON: Or those may have run away, whatever?

MR GULENI: Perhaps the people had run away, if they were there.

CHAIRPERSON: Mr Mgxaji, you have his denial that that didn't happen.

MR MGXAJI: My Lord?

CHAIRPERSON: You have his response to the proposition, or the two propositions that he denies.

MR MGXAJI: Yes, I do, but certainly it might perhaps be purely a legal mind evaluating evidence proffered and regardless of whether there has been admissions with regard thereto, or denials, differs markedly from assessing purely from one version or source. I will take it in so far as evidence is concerned, if at all, there is any material significance attached to evidence. As I say My Lord, that might purely be the function of a legal mind, and for the purpose of the Committee, it may not be valuable an impression. It is a matter that I cannot take any further My Lord, as I say those are purely my instructions. May I just put on the last two questions from me. Mr Guleni, the ANC as an organisation decries political violence on opponents from the left in the political scenario in this country. Will you agree with me?

MR GULENI: Yes, I agree with you.

MR MGXAJI: I also take it that you agree with me that it could not have been the political objective of the ANC to maim and muzzle Mr Mapipa, certainly not. Would you agree with me?

MR GULENI: Yes, I agree with you.

MR MGXAJI: And that as a member therefore of the ANC, you could not have been carrying out its brief, would you also agree with me?

MR GULENI: My objective at the time, I was carrying out whatever.

CHAIRPERSON: What does that mean now?

INTERPRETER: I was furthering the objectives of the ANC.

MR MGXAJI: My Lord, may I just whisper to the victim My Lord? I am indebted to His Lordship, just one last question. Mr Guleni, the murder of Mr Mapipa, it not having been a brief from the organisation you belonged to, would you deny that such an act was purely a criminal act, not actuated by any sensible political reason?

MR GULENI: No, I disagree with that statement, and I have no other reason to commit that criminal act, therefore I disagree with you.

MR MGXAJI: Thank you sir.

NO FURTHER QUESTIONS BY MR MGXAJI

CHAIRPERSON: Is that all Mr Mgxaji?

MR MGXAJI: My Lord, that will be all.

CHAIRPERSON: I will come back to you now, I just want to give Mr Mapoma a chance. Mr Mapoma, are there any questions that you have available to ask?

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

NO CROSS-EXAMINATION BY MR MAPOMA

CHAIRPERSON: Mr Mgidlana, have you got any re-examination?

RE-EXAMINATION BY MR MGIDLANA: It is just on one or two aspects.

CHAIRPERSON: Carry on.

MR MGIDLANA: Thank you. Do you know how many people there were in this Mr Mapipa's motor vehicle?

MR GULENI: I am not certain about the number, but I think there were two people that were in the front seat of the car.

MR MGIDLANA: Before the attack, do you know how many people were there in that motor vehicle?

MR GULENI: No, I cannot say as to how many because the car that we were driving in, was driving at a high speed, a very high speed.

MR MGIDLANA: In your own motor vehicle, how many were you?

MR GULENI: The four of us.

MR MGIDLANA: As you and Mzwandile approached Mr Mapipa's motor vehicle, where did you leave the two others, if you left them?

MR GULENI: They were left next to the high-road where we were hiding. They were left behind because one of them refused to go there with us.

MR MGIDLANA: Was there anything that you personally expected or were going to gain from the killing of Mapipa, just as a person?

MR GULENI: No, I was not expecting to gain anything.

MR MGIDLANA: That is all, Chairperson.

NO FURTHER QUESTIONS BY MR MGIDLANA

CHAIRPERSON: Mr Mgxaji, is it your instructions to insist in investigating the possibility of that witness being called?

MR MGXAJI: My Lord?

CHAIRPERSON: I am asking is it your instructions to insist in investigating the possibility of that other witness being called?

MR MGXAJI: Not from the instruction that has just been whispered to me.

CHAIRPERSON: Oh, okay. Thank you, you are excused.

MR MGIDLANA: Judge may I indicate that there is only one other applicant that I wish to call.

CHAIRPERSON: Call your client back please, we want to ask one question. Mr Guleni, there are so many people who have died and suffered in the past of this country and many of the instances were for utter nonsense, circumstances created by actually apartheid, the manipulation of the apartheid agents. I want to ask you this question that irrespective of what we find here, whether we grant or not, what are the prospects as far as you are concerned, what would be your attitude to meeting the families of the victims and the victims themselves in an attempt to live together in this country of ours and make peace with them and they make peace with you? What would be your attitude?

MR GULENI: If that was possible, I would highly appreciate that and that would make me happy because the aim for me to come here and apply for amnesty voluntarily is because I saw this Commission as an opportunity to clear out our consciences that were the result of things that took place in those times, and we are so regretful about those. I would highly appreciate that because my aim is if it is possible, all those organisations that were not having the same opinion or idea of have their differences, be given a time to reconcile.

CHAIRPERSON: Thank you, you are excused.

WITNESS EXCUSED

CHAIRPERSON: Mr Mgxaji and Mr Malusi, are you two prepared to investigate the possibility of a private meeting with victims and the applicants?

MR MALUSI: Certainly Mr Chairperson.

CHAIRPERSON: I don't know what the successes are going to be, but I think for reasons of the future of this country, attempts should be made to stop that madness if it still exists in the area.

MR MALUSI: I agree fully Chairperson, I will investigate.

CHAIRPERSON: Would you Mr Mgidlana, be prepared to assist that process?

MR MGIDLANA: Certainly Chairperson.

CHAIRPERSON: I leave it in your people's capable hands.

MR MGIDLANA: As it pleases you. There is one more witness and even though the time is about four o'clock, I don't think his testimony would be very long.

CHAIRPERSON: We are finishing tonight.

MR MGIDLANA: I am happy to hear that one, Chairperson.

&#9;May I then ask to call Lusindiso Poyo.

NAME:&#9;LUSINDISO POYO

--------------------------------------------------------------------------CHAIRPERSON: Mr Poyo, what language would you prefer to use?

MR POYO: Xhosa.

LUSINDISO POYO: (sworn states)

CHAIRPERSON: Please be seated.

MR MGIDLANA: Chairperson, may I just indicate that he has applied for amnesty in respect of the APLA 5.

INTERPRETER: Is the witness listening on channel 3?

EXAMINATION BY MR MGIDLANA: I was indicating Mr Chairperson and Members of the Committee that the witness has applied for amnesty in respect of the APLA 5 killing only, he was not involved in the high school shoot-out, as well as the Mapipa case. Mr Poyo, could you give us your full name as well as where you reside as well as the organisation, if any, that you were a member of at the time of this particular incident?

MR POYO: My name is Lusindiso Poyo. My name is Lusindiso Poyo from Mtongo, Port St Johns, I am a member of the African National Congress.

MR MGIDLANA: Since when have you been a member of the ANC?

MR POYO: I joined the ANC in 1988.

CHAIRPERSON: You know why you have come here?

MR POYO: Yes, I know.

CHAIRPERSON: Can you tell us about that? Mr Mgidlana, you can lead him in whatever way you think.

MR MGIDLANA: Thank you. Can you tell the Committee what happened regarding the killing of the APLA 5?

MR POYO: In 1987 before the national elections, I was working for the Department of Water Affairs and Forestry in Libode. I asked for permission from my employer to go and help in the Voter Education in the Branch of Port St Johns where I come from. I was involved in the activities of Voter Education, visiting different rural areas. A rally on the 20th of April was organised. I was fund-raising for that rally that was to take place. We left the day before the rally to Majole, looking for a place where we were going to erect the tent and the other things. We stayed there and looked for other things until the next day. The following day, on this day of the rally, the 20th, we left from Majole with Mr Kanandyana's car, going to Port St Johns. I was going there because I was sent to ask, to get the podium or platform and the loudspeaker. When we got to town, next to the railway station, we met with Fundisele Guleni. Fundisele Guleni talked to Mr Kanandyana at the railway station. Before we could reach the town, he was with the other people of which were not known to me. We turned back without getting into town. Myself, Noteza, Fundisele and Mr Kanandyana went back in this car. On our way, we were told that there were people who were suspected as APLA members who were on their way to disrupt the rally. Myself and Noteza were at the back of the van, Fundisele as in front, occupying the front seat of the van. We went towards Dumasi and the car was stopped, because there were people hitch-hiking. 

MR MGIDLANA: It seems that they are complaining that you are very fast.

MR POYO: We went to a place called Dumasi and there was a big board (indistinct) bungalows, that is where the people were picked up who were hitch-hiking next to the road. We left that place, we went towards Etombo. We got next to a place called Mfhadla and the car took a turn. Myself and Noteza were at the back of the bakkie and Fundisele and Mr Kanandyana were in the front in this bakkie. The car took another direction towards Majola, but another route to Majola, not the one that was known to me. We joined this Majola route on the other side. We went to the rally and we got in, there were people there and I think even the General was there at the time. The car got in the field and took a turn and we went to stop the car on the other side of the ground. Mula left us in the car, myself and Noteza. I am not sure where Mr Kanandyana was at the time, but I am sure that myself and Noteza and these people who were hitch-hiking, these people who had been given a lift, were in the car. When Mula came, he came with Mzwandile. We were told to get into Mzwandile's car with those people and there was Mqiza. Mqiza was coming from Majola and I had seen him the day before this rally, on the 19th. We were taken to a certain house that I did not know, I got to know later, that that was Mqiza's home. I did not know that that was Mqiza's home, but I got that information later. I am forgetting something, before getting to Mqiza's home, of which I will apologise, because I am not sure about this one, I am not sure and I cannot remember where did Mzwandile give us the firearms, but I remember that he gave me a pumpgun and when we got to Mqiza's home, I pointed them with this pumpgun and Mula had a firearm that looked more like a 5mm. Their bags were searched, they wanted to know what was in their bags. When we moved there, we were told to get into Mzwandile's car by Mzwandile. We took another route to a place that I was seeing for the very first time, and I was told that that was the route getting to Buche. When we got there, they also alighted from the vehicle. Next to the road, there was a tree, a thorn tree. Just a distance like from this table to that place, to that other table, there was this thorn tree and these people were standing on the other side, and they were questioned, wanting to know who were they and where were they coming from. There was this misunderstanding, because the others, the other one was telling them not to answer, to give the others a chance to answer. That is when Mzwandile decided to divide these people into two groups. These people were on the other part of the slope, the slope was deep, they were on the high point of the steep and Mula went to the other side and questioned the other group and Mzwandile was questioning the other group. As we were still listening to that, I heard a gunshot from behind. I was very shocked because I only remembered afterwards as when I thought about the people who were at the back, because there was nothing that could lead to a fight or conflict, because no one was assaulted at the time. I got a shock when I heard this gunshot. After this, Fundisele and Mzwandile were talking and when I listened, to me it looked like Mzwandile was saying he thought he got a signal from Mqiza to fire. I cannot say for sure today here, what Mzwandile was saying because he said something like - he made a signal and Mqiza misinterpreted that and he shot the people. Within no time, those people were taken in the car and when Fundisele told Mzwandile to take those people to the hospital, I was also there. Mzwandile was driving, there was Fundisele and I was also in the car. There was a misunderstanding, when they were talking about taking the people to the hospital. I also want to explain the fact that after that shooting, when Mqiza fired, I couldn't understand a thing thereafter, and I didn't even know. I couldn't even ascertain whether this was the intention or not, but because those were the people who knew each other and they were just involved in this misunderstanding. There was this verbal conflict. I am sure that Mzwandile did not say let us take a turn here, but I am sure that he turned the car, he took a turn and we went passed the scene. We went to the other side and turned there and stopped the car. That is where these people were removed from the car. But while I was in the car, I realised that some people were injured, but I did not see that on the way from Buche to Gomolo, because I was in the front seat of the car, and later I realised that there were people injured there, though I was not sure about the extent of the injuries. I wanted to get Mzwandile and hear what he was saying, because Mzwandile, just after the shooting, after these people were removed from this car, he issued instructions and he said that no one was going to escape that situation, and no one would go out and tell the other people about it. If ever anyone would do that and go out and tell people about that incident, he knows very well what was going to happen to him. These people were again divided into two and the people who were injured, were put on the other side of the bushveld and they were taken to the other side, and those who were not injured, were on the other side, Mzwandile's side to the group where I was in. He said "Mqiza finish up what you have started with a knife, because the firearm was going to make a noise and alert the people from the village", because it was during the day. I think that he mentioned that three times or four times, saying that those people should be finished. No one was doing anything. Mqiza came with a knife, I am not sure whether this knife was with him or he took it from the other person, but he couldn't do what he was supposed to do. I am not sure whether he tried or not, but he couldn't finish off what he was supposed to do. After that, Mzwandile from time to time, would leave and leave us guarding these people up to such time when it was decided that these people were still alive, be taken to another place to be finished off. That is what was said by Mzwandile in my presence. We left with these people, four of them if I am not mistaken, we took them and we went towards Nzimbeni, we went passed Qwele. Mzwandile took a turn there, there was drizzle or light showers and the car stopped there and Mzwandile instructed Mqiza to finish off, that is when these people who were still alive, were shot at the time. Because of my situation at the time, I couldn't even see how this happened, and actually I feel better today, because at that time, I didn't even know that I would be in that kind of place and I never even thought or anticipated that would happen, but it happened anyway. We were taken into the van.

INTERPRETER: Something is wrong with the microphone.

MR POYO: After Mqiza shot these people, we were told to put them in Mzwandile's van, at the back and Mzwandile said there were tools in his house. I cannot remember whether we went to inspect the others that were left on the other side, or we went straight to Mzwandile's place. I think we went to those other people who were injured before, and when we got there, they were not there. We went into this place that looked more like a rivulet and it was impossible for us to get some torch or something to light the place and see what was happening. Mzwandile told us that we would go to his place and get the spades. He went to Mrs (indistinct) house, to the backyard, a house in that backyard, and he got the spades. We went out and when we got there, he stopped a car somewhere and he looked around, and he pointed a place where we were supposed to dig. The marshals dug, I was not involved in the digging, but it is not because I couldn't dig, but the way I was so frightened that day, I don't think I would be able to do anything. I went to stand behind Mzwandile, he had this big firearm, Mzwandile that is. I think it was a G3. As we were there in this small piece of land, he was also moving around. I also had this pumpgun with me. I was looking around, trying to see if there wasn't any person coming to disturb. After that, those people were buried in that hole. The spades were taken to the car and Mzwandile took us to our places of residence. I requested to start with me, to go and drop me home, but he decided that I would be the last person to be dropped home, he did so and he took me back home. That is so.

MR MGIDLANA: Were you a member of either the SDU or of MK at that time, apart from being a member of the ANC?

MR POYO: I was not an SDU member, nor MK.

MR MGIDLANA: So, when you were going to fetch this shovels and all that, with whom were you?

MR POYO: Mzwandile was driving, he was sitting with Fundisele in the passenger seat, and it was Noteza and myself and other boys who were dressed in marshals' uniform and those who were going to be shot.

MR MGIDLANA: Before this particular day, did you know these people that were killed ultimately?

MR POYO: No, I never knew, it was the first time seeing them.

MR MGIDLANA: Are you able to recall as to exactly how many were they?

MR POYO: Initially they were six in number, two remained, the two that were seriously injured and four were taken towards Nzimbeni where they were finished off with guns. I think they were six all in all. We left the two that was severely injured and we left with the four that was finished off at Nzimbeni with firearms.

MR MGIDLANA: So the four that were finished off near Nzimbeni were all that four, all that four were killed near Nzimbeni? The four that had not initially been injured?

MR POYO: As to whether they were injured or not, I think they were injured when somebody suggested that they should be finished off with knife-stabbing, but we did not see whether did it start or not. As to whether they were stabbed or not, they did not die of the stab wounds, that is why they were finished off at a later stage. There is the possibility that they might have been injured, but they were bleeding, but if they were bleeding, it was not due to the gunshot, maybe it was due to stabbing.

MR MGIDLANA: As it were, you were there up until they were buried, where they were buried?

MR POYO: Yes, I was there from the beginning right till the end.

MR MGIDLANA: Is there anything that you wish to highlight about the incident?

MR POYO: At the moment there is nothing that I can recall that I would say.

MR MGIDLANA: And you have heard the testimony of Mr Guleni, do you confirm it in relation to how the incident occurred?

MR POYO: That is correct.

MR MGIDLANA: That is his evidence Chairperson.

NO FURTHER QUESTIONS BY MR MGIDLANA

ADV SIBANYONI: Just one question, you said you were neither MK nor SDU, were you at the time of the incident, a supporter of any political organisation?

MR POYO: Yes, I was a member of the African National Congress.

ADV SIBANYONI: Thank you.

CHAIRPERSON: Mr Malusi?

CROSS-EXAMINATION BY MR MALUSI: Thank you Mr Chairperson. Mr Poyo, you say when you were coming from the rally, you took the APLA members to Mqiza's home, did I get you correctly?

MR POYO: We took them from the rally to Mqiza's house. We first started at the rally and then to Mqiza's house.

MR MALUSI: I take it that your answer is yes, you took them to Mqiza's home? What was the purpose of that visit to Mqiza's home?

MR POYO: The purpose was to search them, to find out what was in their bags, that is what I think, because nobody informed me as to what is exactly, what was going to happen, I just saw action. I just saw their bags being searched and that is all.

MR MALUSI: So I would be correct to say by the time you were at Mqiza's home, you already knew that the APLA members were not armed?

MR POYO: I knew after they had been searched.

MR MALUSI: Were the APLA members questioned at all at Mqiza's home?

MR POYO: They were not much questions at Mqiza's house, other than the fact of who they were, but most questioning took place where they were being shot, not at Mqiza's house.

MR MALUSI: Was there any particular reason why you left Mqiza's house?

MR POYO: I think that they wanted to definitely ascertain as to who were they and where were they from and where were they going, but nobody said that to me. I just heard somebody saying that we must take them to that other place to question them thoroughly after they had been searched.

MR MALUSI: Yes, and they were questioned thoroughly and according to your version, Mqiza accidentally shot some of them?

MR POYO: That is correct, sir.

MR MALUSI: After Mqiza accidentally shot some of them, a decision was taken that the rest of the APLA members should be killed, did you associate yourself with that decision?

MR POYO: No, I didn't associate myself with that decision.

MR MALUSI: And if I got your testimony correctly, you didn't even participate in any material respect, that is after the decision was taken, you did not shoot them and you did not dig the graves, you were just standing around?

MR POYO: I was watching and I was staying on guard. I was told to keep an eye on them so that they should not run away. Whilst they were digging, we were told to monitor the situation and make sure that nobody disturbs.

MR MALUSI: To the best of your knowledge, why was the decision taken that the four APLA members who had survived the shooting by Mqiza, should be killed? What was the objective of killing them?

MR POYO: I heard Mzwandile during the argument with Fundisele as to they should be taken to the hospital or they should be killed or not. At that moment, I did not know as to which side was I on, but there was nothing that I could say against Mzwandile because I took him as somebody who was an expert, who knew everything more than me. I could have suggested anything, but there was nothing that I could have a say in this, because I regarded him as the best.

MR MALUSI: Yes, you regarded him as the best and you did not even know what was happening. Did you perhaps ask when you were leaving the scene where the first APLA members were shot, did you ask at all when you were leaving with the other four, "where are we taking these, what are we to do with them?"

MR POYO: The only question that I asked was directed to Fundisele, not in the presence of Mzwandile. There is nothing that I asked of Mzwandile as to what is going to happen, all my questions were directed to Fundisele, who would tell me that. But although he did not tell me exactly where are we going to, but he just said that we are being told that we are going, we are going to some other place.

ADV SIBANYONI: Excuse me Mr Malusi. What would have happened to you if you have refused to go along with Mzwandile?

MR POYO: He told me that he would kill me instantly because when we got there Mzwandile said "no one is going to leave here. Anyone who would try and leave here, would reach his destination as a dead corpse".

ADV SIBANYONI: Did you voluntarily watch and ensure that nobody interfered or were you under any ...

MR POYO: Honestly I didn't watch, because if you could catch me, I was not there, it was just my body. I couldn't do anything, I was just watching because he was in front of me. For that matter, he was the only person that I was watching.

ADV SIBANYONI: Thank you Mr Malusi. You may proceed.

MR MALUSI: Thank you sir. You would have the Committee believe that your testimony is to the effect that you were under duress, you were out of your mind, you were only present there because your body was there, your mind was not there? Is that what you would have the Committee believe?

MR POYO: What I am saying sir, in some instances like digging, if I am being asked whether I was watching or I was alert or not, because nothing wouldn't have happened if it was to happen because I was on guard. I wasn't mentally on guard.

MR MALUSI: First on the killing sir, I want to put it to you that it was a collective decision. Mzwandile may have initiated that all the APLA members should be killed, but it was your collective decision as the ANC group that was there, that the APLA members should be killed, what is your comment to that?

MR POYO: Right from the first to the last minute, nobody told me what is going to happen or asked what my suggestion was. Nobody consulted me in the matter.

MR MALUSI: If we are to believe you, Mzwandile was the main man and if there was any discussion, the discussion was between Mzwandile and Mr Guleni?

MR POYO: Yes, that is correct sir.

MR MALUSI: Mzwandile has made a statement, a sworn statement, to the effect that Mr Guleni was actually the person who was in charge, who was giving orders. May we have your comment on that?

MR POYO: I was present and I was sitting in the front seat, that is absolutely not true. I could tell him all the things that I have just said, I could say it straight in his face. What he is saying, is not true.

MR MALUSI: After the APLA members were taken from the scene, that is where the first two were injured, when the surviving four were taken from the scene, it is my instruction from Mr Gasmeni that before they were shot, they were stabbed by members of your group, what is your comment to that?

MR POYO: Yes, they were stabbed, it is true. The decision to take them to their last destination, it was due to the fact that Mzwandile's order did not work out when he said they should be stabbed, that is when the decision was taken to finally shoot them.

MR MALUSI: I want to put a proposition to you, that there could have been no other objective in killing at least the four surviving APLA members, there could have been no other objective with regard to their killing, other than to make sure that your group was not prosecuted, that is yourself, Mzwandile and the others, what is your comment on that?

MR POYO: Anything would have - person - other than what happened, I have never thought that I would come across such a thing in my life. The fact that we did that because we were trying to avoid that it would have been done by somebody who have done that before. If I was alone and I had to take some decisions there, I wouldn't have taken things that far.

MR MALUSI: Yes, let's just leave that aside. I am now saying to you the sole purpose, the sole objective of killing the four surviving APLA members was to stop them from going to the police, stop your group from being criminally prosecuted with regard to your actions earlier that day, what is your comment to that, just on that?

MR POYO: That is not how I see things, because as far as I heard and as far as I am concerned, if they could let them go, they were going to report back to their organisation and after that, they would come and retaliate. That was never mentioned, the fact that they were trying to escape prosecution. It was only mentioned that if they are released or one of us tell the other people about that incident, they would go to their organisation and later come back and revenge.

MR MALUSI: Let's for a moment accept that what you are saying, is correct, that you were only worried about APLA. Why then on returning to Port St Johns after this whole mission, why then did you not go to your Chairperson or whoever was in charge of the ANC in that region, to inform him or her that as ANC members you have done this?

MR POYO: As far as I am concerned, the next day Fundisele left to meet with Mr Mfeketho and he told him about everything.

MR MALUSI: Did you tell anyone, yourself?

MR POYO: No, I never mentioned this to anyone, this is a great opportunity for me to take this out of my chest. The very first person that I told about this, was the person who went to get the statement. This is for the second time that I am talking about this incident.

MR MALUSI: Just from this point of a political objective, were you not acting contrary to ANC policy at that time in killing the APLA members if we are to accept, if the Committee has to accept your version that you killed them to prevent further hostilities between PAC and ANC? Were you not acting contrary to ANC policy at that time, which was that political opponents should not be killed and the ANC had effectively suspended the armed struggle at that stage.

MR POYO: At the time, I knew nothing about the armed struggle at the time. As I have mentioned before, how I got myself into this, therefore I couldn't oppose anything.

MR MALUSI: If I can just refer you to your statement on page 12 of the Bundle, on paragraph 34. You say that he, that is Mzwandile, ordered you or us to dig one big hole. Your entire statement is in that vein, that you participated in this, but your testimony today ...

CHAIRPERSON: It does not follow that he is contradicting himself, his participation in the plural may very well be a contribution not physically.

MR MALUSI: I take the point, Mr Chairperson. The point I am trying to make to the applicant is this that on reading his statement, one gets the impression that he is including himself in the activities, he was part of the activity but his testimony today is to the effect that he in fact was out of his mind, to a point he did not know what was happening. I just want him to clarify that.

MR POYO: Chairperson, I want to rectify the fact that I was out of my mind, that is not the case, but what was happening on that day, I was not myself. To me it looks more like a dream, it is not that I wasn't there or I was out of my mind. I was okay, but I was even there when Mzwandile said that people should dig a hole, but he did not call people by names. When I say that Mzwandile told us to dig the hole, yes, he did mention that, but he never mentioned the people's names, and I never practically took the spade and dug the hole.

MR MALUSI: Can you perhaps advise the Committee the specific acts for which you are applying for amnesty?

MR POYO: First of all, when I heard about the Truth Commission, when it was said that if there is anyone who knows anything about human rights violation, those people should go forward, I thought that was a call to me because I was there and I knew that there was someone else who would listen to me when I talk about this. This is my first reason.

MR MALUSI: Maybe you didn't get my question clearly, my question is this, you claim not to have been actively involved, to have been there, but not actively having taken part. I am asking now is there a specific act, something that you did that day, that you would like to be forgiven for, except for just being there?

MR POYO: Guarding people in that process, and guarding the place when I was given this pumpgun, the one that I had.

MR MALUSI: Were you involved in any actions prior to this incident with Mzwandile? We have had testimony of other incidents in Port St Johns, were you involved in any other incident besides this one with Mzwandile?

MR POYO: No, that was the very first and the last incident.

MR MALUSI: The reason I am asking that, I am trying to ascertain why would you be so fearful of Mzwandile if you had not been previously involved with him?

MR POYO: Sir, this problem started when the shoot-out started and from there he wanted us to continue with this, and on the way, he instructed the people to finish off these people and I refused to go there. He told me that if I thought that I was going to escape that situation, I was going to die. On that particular day, and I knew that he was capable of doing anything. I couldn't do nothing about the situation.

MR MALUSI: Is it possible at all that the killing of the APLA members, was planned the moment you left Mqiza's home, that your group or Mzwandile and someone else deliberately took a decision when you left Mqiza's home that these people were to be killed?

MR POYO: I do not think so. I don't think there was time to do that, because I was present when we were moving from this particular place. If there was that kind of a planning, it was done later on, but I have no idea about that.

MR MALUSI: A final question, Mr Chairperson. If I got you correctly, you said that at the time you were fearful that these APLA members may retaliate, is that correct?

MR POYO: Let me explain this. Initially I did not realise that, I only got a fright after the shooting. I couldn't say anything because they were already shot and I did not think that they would be able to fight again. They had no firearms, we saw that when we were at Mqiza's home, and I did not see them fighting again after being shot, because they had no firearms.

MR MALUSI: Yes, the question I wanted to ask after that actually was, if you are afraid that after being shot, that they were going to retaliate, was your group not afraid that even if they had not been shot, they would still have retaliated for the abduction and the questioning?

MR POYO: If they were going to retaliate, they could have done so, but I cannot say what was going to happen. I couldn't say no to anything, maybe they were later going to retaliate, but I do not know for sure. I cannot say what would have happened if they were released.

MR MALUSI: Thank you for your time, sir. No further questions Mr Chairperson.

NO FURTHER QUESTIONS BY MR MALUSI

CHAIRPERSON: Mr Mgxaji, I don't suppose you have any questions?

MR MGXAJI: No questions.

NO CROSS-EXAMINATION BY MR MGXAJI

CHAIRPERSON: Mr Mapoma?

MR MAPOMA: No questions, sir.

NO CROSS-EXAMINATION BY MR MAPOMA

CHAIRPERSON: Mr Mgidlana, have you got any re-examination?

MR MGIDLANA: There is none, Judge.

NO RE-EXAMINATION BY MR MGIDLANA

CHAIRPERSON: Yes, thank you, you are excused.

WITNESS EXCUSED

CHAIRPERSON: Mr Mgidlana?

MR MGIDLANA: Chairperson, that is all in respect of the applicants.

CHAIRPERSON: Mr Malusi, have you got any witnesses?

MR MALUSI: Yes, Your Worship, there is Mr Gasmeni who survived this incident, but Your Worship, I have consulted with him, his testimony really would relate to what is on page 101 to 109, that is his two statements to the police in the Bundle. 

CHAIRPERSON: I am in your hands on that score. Page 101 you say?

MR MALUSI: That is correct, yes.

CHAIRPERSON: I don't know what you want to do. I have not read those statements.

MR MALUSI: Oh, I had assumed incorrectly, that the Committee had read the statements.

CHAIRPERSON: No, I make it a point of not reading it before I hear testimony. I don't want to cloud my mind.

MR MALUSI: If perhaps I can be so presumptuous as to ask if any member of the Committee has a particular point that they would like to raise with Mr Gasmeni? 

CHAIRPERSON: None.

MR MALUSI: In that event then Mr Chairperson, I do not intend to call him because really, truly speaking his evidence is as contained on pages 101 to 109.

CHAIRPERSON: It is not going to take the matter much further?

MR MALUSI: Much further, Your Worship.

CHAIRPERSON: Fair enough. I appreciate the approach. Any other witnesses or is that your lot?

MR MALUSI: That was the only witness I intended calling, the only person.

CHAIRPERSON: Thank you. Mr Mgxaji, do you have any witnesses?

MR MGXAJI: Certainly not beyond what I submitted in respect of when I was dealing with the Mr Mapipa case.

CHAIRPERSON: Mr? I didn't get the name.

MR MGXAJI: No, My Lord.

CHAIRPERSON: You haven't got. Mr Mapoma?

MR MAPOMA: I have no further evidence, Chairperson.

CHAIRPERSON: That being the case, there will be no more evidence, Mr Mgidlana, have you got any submissions to make? We certainly would like to hear which applicant applies for what.

MR MGIDLANA IN ARGUMENT: Judge, I will begin by indicating that I will not deal with Hermans as well as Pato's portions of their applications that were withdrawn. If we may begin with the shoot-out at the high school on this particular day, the Voter Education shoot-out.

CHAIRPERSON: Who is involved there.

MR MGIDLANA: Wherein Guleni was involved, Matshaya, Mdlulwa as well as Pato.

CHAIRPERSON: Okay, what is Guleni applying for?

MR MGIDLANA: Judge, Guleni is applying for his involvement in the shoot-out.

CHAIRPERSON: No, I cannot understand that. Let me make it easier.

MR MGIDLANA: As it pleases, Judge. 

CHAIRPERSON: On the evidence given by them, are they guilty of anything? 

MR MGIDLANA: It will seem to me Judge, my submission would be that they could be guilty if they were to be charged, with public violence even though of course they are saying that they were trying to defend the people where they ...

CHAIRPERSON: No, I am not talking about what the prosecution authority of this country may decide. I've got to look at the facts. They were defending people.

MR MGIDLANA: Yes.

CHAIRPERSON: It is not a crime to defend people.

MR MGIDLANA: Yes.

CHAIRPERSON: On that basis, are they guilty of anything?

MR MGIDLANA: Given that Judge they are not saying that they know of any person who was injured or killed during that incident...

CHAIRPERSON: Even that, I mean can they be said to have unlawfully taken the life of another or attempted to take the life of another?

MR MGIDLANA: My submission will be that it might be said that depending on what happens, whether or not their act of self-defence did not exceed the bounds, but ...

CHAIRPERSON: But that is not their versions.

MR MGIDLANA: Yes, but it is not their versions, yes. In fact the only thing that comes to my mind, Judge, is that it could just be said there was fighting between these two groups.

CHAIRPERSON: They - aren't they guilty of unlawful possession of firearms and ammunition, on that incident?

MR MGIDLANA: That is another aspect Judge ...

CHAIRPERSON: That is about all that can be said.

MR MGIDLANA: That is all that can be said, yes.

CHAIRPERSON: Get to the next matter.

MR MGIDLANA: The next matter would be that of the killing of, in fact that applies to all these four that I mentioned, in this first matter, Judge. Then the second one relates to the killing of the late Mr Mapipa, of which the applicant is Guleni.

CHAIRPERSON: Yes. He would be guilty of murder?

MR MGIDLANA: He is guilty of murder, Judge.

CHAIRPERSON: Mr Mapoma, the Sotho Interpreter has been interpreting, is he necessary to the public? Is there anybody that wants to listen in Sotho?

MR MAPOMA: If I may Mr Chairperson, yes.

CHAIRPERSON: Okay. We will then break for two minutes then.

COMMITTEE ADJOURNS

ON RESUMPTION:

CHAIRPERSON: Mr Guleni in the killing of Mr Mapipa, would be guilty of murder, unlawful possession of a firearm?

MR MGIDLANA: (continued) (No audible reply)

CHAIRPERSON: I didn't hear.

MR MGIDLANA: Malicious damage to property, Judge, because Mr Mapipa's vehicle was certainly damaged.

CHAIRPERSON: Yes. And were there other people injured in that incident?

MR MGIDLANA: From what I gathered from my learned friend, that somebody else was injured.

CHAIRPERSON: You don't know who that person was?

MR MGIDLANA: Who that person is, yes. It could be attempted murder in respect of that person.

CHAIRPERSON: Yes.

MR MGIDLANA: As well as, I don't know whether it will follow therefore that assault GPH will be involved in the event that the attempted murder could not have been proved. But whatever competent verdicts ...

CHAIRPERSON: Shooting somebody blindly cannot be other than attempted murder?

MR MGIDLANA: Yes.

CHAIRPERSON: And the killing of the APLA operatives?

MR MGIDLANA: In the killing of the APLA 5, it is murder.

CHAIRPERSON: Well, who is involved there?

MR MGIDLANA: It is Guleni as well as Poyo.

CHAIRPERSON: Yes, it is five counts of murder or how many counts?

MR MGIDLANA: It is five counts of murder, because as I understand it, five people died.

CHAIRPERSON: One attempt?

MR MGIDLANA: One attempted murder, yes.

CHAIRPERSON: Yes.

MR MGIDLANA: I don't know whether it is relevant, the question of conspiracy because the actual murder was indeed carried out.

CHAIRPERSON: Yes, then it is not conspiracy.

MR MGIDLANA: Yes. As to the - I am not so certain what offence will have amounted to the concealment of their bodies, but whatever offence relating to the concealment of their bodies, and also the possession of firearms and ammunition, if any during that incident.

CHAIRPERSON: Did Guleni have a firearm that day?

MR POYO: From the testimony of Poyo, he says Guleni was also having a firearm.

CHAIRPERSON: And Poyo himself?

MR MGIDLANA: And Poyo himself, he had this firearm that he got from Mzwandile Jagu, which was the pumpgun. It seems in so far as the offences for which they apply amnesty it would be those.

CHAIRPERSON: Is there anything else you wish to add to that?

MR MGIDLANA: Judge, unless the Judge wants to and the Panel in general, wants to hear me on the question of the applications, the merit of the applications ...

CHAIRPERSON: Let's see what difficulties the other Attorneys pose to us.

MR MGIDLANA: As it pleases you, Judge.

CHAIRPERSON: We may come back to you.

MR MGIDLANA: As it pleases you.

CHAIRPERSON: Mr Malusi?

MR MALUSI IN ARGUMENT: Thank you Mr Chairperson. With respect to the murder ...

CHAIRPERSON: You are dealing with the APLA 5?

MR MALUSI: The APLA 5, the murder of the five APLA members and the attempted murder of Mr Gasmeni. It is my submission to the Committee that both applicants do not qualify to be granted amnesty for those offences. The principle reason being that it is my submission to the Committee that the killing of the five, in fact, I am not certain, the killing of four of the operatives, is definite that it is not politically motivated, that is those that were taken after the initial shooting by Mqiza, to be killed somewhere else. It is my submission to the Committee that that killing is not politically motivated. It is my submission to the Committee that that killing was done solely for the reason of trying to silence them so that there could be no criminal prosecution. On their statements in the Bundle, it comes our clearly that they said they had no intention of killing these people. There is no mention at all in their statements about a fear of retaliation. Their versions, that is Guleni and Poyo, on their statements in their application, is that the first two were shot accidentally by Mqiza. After the shooting by Mqiza a collective decision was taken that ...

CHAIRPERSON: Well, was it accidental? He thought, he honestly thought that he got the instruction, it may turn out that he didn't get an instruction, but when he shot, he intended to shoot them, because he honestly believed that he had an order.

MR MALUSI: From his superior?

CHAIRPERSON: So it is not a question of a mistake when he actually did it. It turned out after that, that it may have been a wrong interpretation, and in that fashion, maybe a mistake. Would you agree with that?

MR MALUSI: I agree fully with that, Judge. That is why I am saying with regard to the initial shooting of the two, that is why I am saying not murder on five counts. They are possibly entitled to amnesty with regard to murder on one count. Unfortunately we do not know who was killed initially by Mqiza, because he genuinely believed, bona fide believed, that he had received an order from his Commander to kill these people, which it turned out was a mistake. But with regard to the actual murder later on of the three others, and the attempted murder on Mr Gasmeni, they are not entitled to amnesty. It is clear from their applications that they are saying they murdered them to silence them. This testimony today that these people were murdered so that they could avert a retaliation by APLA, is an afterthought.

CHAIRPERSON: Do you have the names of the victims?

MR MALUSI: Yes, I do Judge. If the Panel would bear with me.

CHAIRPERSON: Maybe you can give it to Mr Mapoma when you do find it. I can get it from him, don't worry.

MR MALUSI: Okay.

CHAIRPERSON: Carry on with your submission.

MR MALUSI: My submission is that with regard to the killing of the other four is that a chain was broken. If these people were all killed at the same time when Mqiza misinterpreted that instruction, possibly they would qualify for amnesty, but that break in time, that break in activity, when they went around to say "we must take them to the hospital" and they said "no, we cannot take them to the hospital, they will report this" ...

CHAIRPERSON: Changes the whole scene?

MR MALUSI: Changes the whole thing, it is now premeditated murder, to conceal the earlier murder of the two APLA cadres. It is my submission that on that score, there is no political objective. To further undermine the applicants' application, the organisation to which they belong, they admitted that it was the policy of that organisation that political opponents were not to be killed, they admit that the armed struggle was suspended at the time. Even if we were to view their version on its own, it is my submission that it cannot succeed, that is the version that we killed them because we were furthering the aims of the organisation, these APLA cadres were troublesome in Port St Johns. It is my submission that that cannot succeed. I would like also to point the Committee to page 48 in support of my application, page 48 of the Bundle wherein there is a statement by Mr Guleni, paragraph 37, that is the relevant paragraph, when he says when they left, there was a general assumption that these people were to be taken to hospital, but Mzwandile said if they did that, they would be arrested. That is in support of my application. I also would like to refer the Committee to the statement by Mr Guleni where he says on page 47, 48, there are two paragraphs 34 there, and then there is also paragraph 35. It is clear from those three paragraphs, the two paragraphs 34 and paragraph 35 that these APLA people were disillusioned members, it is clear that after the interrogation, it is clear that these people were disillusioned, they were trained, they were to an extent abandoned by APLA, the PAC, they were being integrated into the TDF. They are not happy with the integration into the TDF, they are clashing with their own comrades, with their own APLA comrades. They are now leaving the base where they are being integrated, to go to Umtata, to go to Qogani. This is on the version of the applicants. Why then would people, who are in such a position, be seen to be posing a threat of a counter-attack, of a revenge attack? It is my submission to the Committee that this purported attack is not reasonable and cannot be accepted. I am sure even the applicants do not bona fide believe this now or even then, that there was to be a counter-attack. A second point, my instructions are that the applicants have not made a full disclosure. The affidavit of Mzwandile is in complete contrast to both the testimony of the applicants. Mzwandile is saying that Mr Guleni played an active role, he is the person who was giving the orders. The statement by Mzwandile, it is from page 84 to page 90. It is my submission that on reading that statement by Mzwandile Jagu and on reading the statement by Mr Gasmeni, the survivor of the attack, that would be on page 101 to page 109, those statements are similar in material respects, that these people were lined up, an order was issued that they be shot and these people were shot. Gasmeni is not providing the names, because clearly these people were unknown to him at the time, who gave the order and everything, but Jagu supplies us with the names, that so and so gave the order, so and so did this, so and so did that. It is my submission that the two applicants did not make a full disclosure with regard to their role in the actual murders. I am now saying if the Committee on the first submission I make, there is no political objective, does not agree with my submission, dismiss that and says there is a political objective, the second point to be considered by the Committee is, did these people make a full disclosure. It is my submission that they have not. 

CHAIRPERSON: You are saying for the reasons you have given us, they fail in their application, on both counts?

MR MALUSI: They even, the applicants, both Mr Guleni and Mr Poyo, today they are giving us the impression that they were mere spectators. If one reads their statements in the Bundle, one gets the impression that they actively participated. Yes, their participation was not a leading role, but their participation was there. Today their testimony is to the effect that they were passive participants, they did not actively do anything.

CHAIRPERSON: That amounts to not fully disclosing?

MR MALUSI: I submit that it would, Mr Chairperson.

CHAIRPERSON: Yes.

MR MALUSI: In that the Committee or the Act expects of an applicant to fully state his role. If as these applicants were, if one is involved in a murder, I believe the Act expects that person to state fully what his role was.

CHAIRPERSON: We understand that, you are correct.

MR MALUSI: If a person says I was there in the murder, but I was just standing by, and the Committee later finds out that you were not only standing by, your role was more than standing by, I believe that is a ground for refusal, and it is my submission that they also be refused. On those two grounds, Mr Chairperson, I submit that both applicants, Mr Guleni and Mr Poyo, with regard to the Port St Johns incident, be refused amnesty, especially with regard to the murder of the four APLA cadres and the attempted murder of Mr Gasmeni. Of course there are other charges, possession of unlicensed firearm because he says they were carrying Uzzis, pump action guns and the like, I believe they had those for political objectives. The abduction of the APLA cadres earlier on during the day, I believe based on the Act, that abduction was justified. All their acts were justified to an extent up to the point when they decided to kill those people to silence them, from there on their acts were definitely not justified in the Act. Thank you for having me.

CHAIRPERSON: Thank you. Mr Mgxaji?

MR MGXAJI IN ARGUMENT: Mr Mgxaji, Judge.

CHAIRPERSON: I am sorry.

MR MGXAJI: With regard to the application by Mr Guleni, relating to the murder of Mr Mapipa, ,from his testimony proffered, we do ascertain, he so also admits, that at the time Mr Mapipa was murdered, he had never been involved in any endeavours, interfering with the election campaign of the ANC. He was never involved in any of the alleged political clashes in Port St Johns, specifically the time that he was so shot at and murdered, he was not engaged in any activities attacking the applicant and therefore there could not have been any political reason why the applicant would hold Mr Mapipa a political target. That at least we are so sure of from the testimony of the applicant. What could be arguable though itself, I will show it to be baseless, is that the unit alleged by Mzwandile Jagu, to be in Mr Mapipa's motor vehicle was a Third Force Unit or APLA, either way, that also does not ground a reason for the murder of Mr Mapipa and therefore there could not have been any political objectives sought to be achieved in taking the life of Mr Mapipa. As contended by the victims through me, even those who were with Mr Mapipa, were not APLA members. That they were not, could not also be refuted by the applicant. His Lordship seems to argue that at the time the act was committed, the applicant bona fide believed that what he was shooting at, put aside the question of Mr Mapipa, was APLA, but His Lordship would agree with me that determining or ascertaining one's bona fide beliefs, such determination is arrived at objectively. In other words, objective facts should exist upon which that genuine or bona fide belief is based. There being no objectively ascertainable facts upon which the applicant could have genuinely believed that the boys who were with Mr Mapipa, were APLA members or Third Force Unit as having been reported to him by Mzwandile. That not being the case, his state of mind at the time that the offence was committed, cannot be said it shows a genuine belief on his part. Even if one focuses on the alleged Third Force Unit or APLA men who were attendants or guards to Mr Mapipa, for whatever reason that could possibly have been, but the fact of the matter is that on mere report by Mzwandile that Mapipa' van with a Third Force Unit or APLA Unit, they jumped into the van and attacked. Unless the applicant did ascertain the identity and the capacities of those who were in the motor vehicle with Mr Mapipa, he have never done so, it just cannot by any stretch of imagination, be argued, from whatever angle, that he had risen to believe that those were APLA members, not particularly a trained member of a military wing of a liberation organisation, and my submission conclusively is that the murder of Mr Mapipa as an individual, there was no political reason, no motive on the part of the applicant. In the same way as it is an afterthought, just a concocted story that those who were at Mr Mapipa's motor vehicle, were a Third Force Unit. We do have in the Bundle of documents, a statement by Mzwandile Jagu. Even though that statement relates to the five fellows that were picked up on the road and murdered, that statement as to who Mzwandile is, tells this Committee that certainly the allegation by the applicant that he was a man from whom commands could emanate, are merely a (indistinct) on the part of the applicant, to portray a situation wherein commands and instructions were given to him. In the same way as there was no reason for applicant to believe as he seeks this Committee to believe, there was no reason at the time Mzwandile was reporting to him about this Unit, there was no reason for him having a trained mind, in a military action or (indistinct) situation, there was no reason for him not to assess and seek to ascertain the veracity of the statements by Mzwandile and the conclusion one is led to arrive at, is that it is a mere fabrication that Mzwandile make that report. If one looks at the statement, on page 89, that would be paragraph 2. I do understand His Lordship, that he has indicated that he did not read through the statement, but if His Lordship would, he would read that what Mzwandile says is that -

&#9;"... my bakkie was washed the blood in the garage, and the time by then, was about ten. I left them in town after a strong warning that if I can ever reveal or if I can reveal all this thing, my property, myself and my wife, would be destroyed. Even if I can go to hide myself, they will hunt me."

&#9;My Lord, there is no reason why this Committee would doubt that extract or portion of the statement by Mzwandile, and this Mzwandile is the very same Mzwandile whose bakkie was used when Mr Mapipa was murdered, and my submission therefore is indeed, there was no political objective sought to be fulfilled by the applicant. In so far as the question of the second leg, being that of full disclosure ...

CHAIRPERSON: Well, if we accept that there was no political motive, it would have to be on the basis that Mzwandile was not the leader he is made out to be, and therefore there would not be full disclosure?

MR MGXAJI: That assertion is also applicable My Lord.

CHAIRPERSON: I am saying, that is how I understand your argument?

MR MGXAJI: Certainly this Mzwandile is the very one who has proffered in that statement, who he is, how he is related to the applicant and on the basis of what comes out of that statement, in relation to what the witness has proffered before this Committee, certainly no full disclosure is made.

CHAIRPERSON: And therefore the application in respect ...

MR MGXAJI: Should not succeed.

CHAIRPERSON: Well, it fails on both counts?

MR MGXAJI: That would be my submission that it should fail on both counts. My Lord, I would - one does know that there could be various interpretations of what is meant by a political objective, but one does know the South African political scenario, the forces of change and the forces against change and therefore one does know a political objective would be the one that seeks to advance the interest of change, and the political parties involved in that scheme of arrangements, are also known. The political leadership and the organisation, both in the ANC, the PAC and AZAPO, (indistinct) may name them, all in the left, certainly they decry any political acts by anyone of their members directed to a member of another political organisation in the order that you shall find in the left of the centre in the South African political scheme of things and my submission therefore is even if we take Mr Mapipa as having been a Robben Islander, a member of the PAC, taking his life does not fit in in the political objectives any individual involved in the political struggle may seek to achieve. Eliminating Mapipa would not advance any political interest in effecting change in this country. It is something that is decried by all these political organisations I have enumerated and my submission therefore is indeed, there could not have been any political basis, motive, nor reason why Mr Mapipa was murdered cold-bloodedly in the manner in which he was and therefore the application should be turned down. That is all Mr Chairperson.

CHAIRPERSON: Thank you.

PROSECUTOR: Mr Mgxaji, will you also like Mr Malusi, do us the favour to furnish Mr Mapoma with the full names of the deceased, Mr Mapipa, his address, his next-of-kin and all of the people who were attacked in his vehicle?

MR MGXAJI: Certainly I will do so, My lord.

PROSECUTOR: Thank you, thank you very much.

CHAIRPERSON: Mr Mapoma, have you got any submissions? I doubt there is any left?

MR MAPOMA IN ARGUMENT: Just a few Chairperson. Chairperson, I have listened carefully to the submissions that have been made by those appearing for the victims. I would like Chairperson, just to make a few comments. In particular sir, that when the Committee determines this application, it is important that the context within which these acts happened, must be taken into account. I am saying so because Chairperson, the provisions of the Promotion of National Unity and Reconciliation Act particularly Section 20(3) sets out the criteria that must be taken into account in determining as to whether an act is an act associated with a political objective. Amongst those criteria the political motive is supposed to be taken into account as well as the context within which the acts took place. It may well be argued that the ANC decried violence against other political organisations within the land, but the matter does not end there because if you look into the political motive, one cannot negate the fact that these actions were politically motivated. It is common cause Chairperson, that in particular regarding to the APLA 5, that they were members of APLA, they were trained as such. It is common cause as well that during that period, there 

was a conflict, a fierce conflict between the ANC, SDU's and the PAC in the form of APLA. In a way that is almost common cause in this house. It is unfortunate that those conflicts resulted in this particular actions. I have taken into account as well Chair, the submission which was made that the decision to kill the APLA 5, was prompted by a desire to evade prosecution and nothing else, but there is an alternative explanation that has been tendered by the applicants to the effect that not only that, whilst they concede that it may be well be that they did not want to be prosecuted, but as well, they did anticipate that should they release them, there was anticipated a counter-attack onto them. Even if, for that matter, Chairperson, it can be argued that amongst the reasons, they were avoiding prosecution, given those times, prosecution itself to a great extent, would hinder their political objective if they were to be prosecuted at that time, given their role in the area, particularly Guleni because he was a leader there. If he were to be arrested, that to a certain extent would hinder the political process of their own organisation. In a way Chairperson, I would certainly argue that it is very difficult to say these particular actions were not politically motivated. Regarding Mr Mapipa, it is also accepted that he was a prominent member of the PAC in that area and there was this conflict that was there. In a way, as well ...

CHAIRPERSON: Is that common cause?

MR MAPOMA: Yes, in fact Mr Mgxaji has argued, I mean has mentioned that he was a former Robben Islander, a PAC leader in Port St Johns, and unless I ...

CHAIRPERSON: I will check that with him. You carry on.

MR MAPOMA: Yes Chairperson. That being the case, I am saying it is very difficult really to say there was no political motivation. I would not deal Chairperson, with the question of full disclosure.

CHAIRPERSON: Thank you.

MR MAPOMA: Thank you sir.

CHAIRPERSON: Mr Mgxaji, tell me the question of membership of the PAC on the part of Mr Mapipa, is that correct?

MR MGXAJI: May His Lordship bear with me, I was attending to something else, and not on the microphone. What is sought to be ...

CHAIRPERSON: No, there is a submission here that it is common cause that the deceased was a member of the PAC.

MR MGXAJI: Yes, he was a member of the PAC.

CHAIRPERSON: Then I am sorry, I misunderstood your original submission. Thank you. Mr Mgidlana, I don't think we need to hear you, we have heard what they want to say, we will take it into consideration. We don't need to hear you.

MR MGIDLANA: As it pleases you, Judge.

CHAIRPERSON: That brings an end to this week of hearings. I want to thank, before we stop, the people who made this hearing possible, the Logistics Officers, Publicity Officers, in particular the Interpreters who are taken for granted at most occasions, and yet they do the hardest work of having to inform almost everybody in various languages and we thank them for that. 

&#9;We thank those who have provided the food that we have enjoyed, and those representatives who at short notice are briefed to represent the various parties, in particular I want to thank those who participated in the procedure and those members of the public who have taken an interest in what is happening. 

&#9;I also want to appeal to the people who are affected by the acts which we have to ponder upon during this week, that in my view, what has happened in this country, came near to madness and whether we like it or not, some of our people were manipulated by those who wanted to hang on to the apartheid structure and the system. To that end, we have defeated the apartheid system, but we haven't cleansed ourselves yet, and no matter what, I cannot say to people to forget your loved ones. What I would like them to consider is to make an attempt to come to terms with life now, bury the hatched, remember those who died, and let's get on with forming a new country and living in it, together. I sincerely hope that the families of the victims can see their way clear of coming to terms with having to have some type of social relationship with those that have thus far not cared for, because they had attacked their loved ones, or even hated them. The time has come for our country to stop hating each other. I thank you for listening. We are adjourned.

HEARING ADJOURNS

