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DATE:&#9;16TH FEBRUARY 2000
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 DATE:&#9;16TH FEBRUARY 2000

NAME:&#9;TOM JABULANI MADLALA

APPLICATION NO:&#9;AM7198/97

MATTER:&#9;MURDER OF 16 IFP PEOPLE&#9;

DAY:&#9;&#9;3

--------------------------------------------------------------------------CHAIRPERSON: The Committee comprising of myself and Judge de Jager and Madlala, - we are hearing the matter of the Madlala brothers, Jabulani Madlala and Falake Professor Madlala. Who's appearing for the applicant?

MR DEHAL: Thank you Mr Chairperson. My name's Dehal, Roshan Dehal. I represent both the applicants, Chair, that you have referred to. It seems to be agreed that we will begin with the applicant, Mr Tom Jabulani Madlala and then deal with the application of Falake Madlala.

CHAIRPERSON: Thank you. We'll do that. Who is appearing for the objectors, if any?

MR HARKOO: Thank you, Mr Chairperson, my name is Raven Harkoo. I appear for the family of the victims. I have discussed this matter with them. I do not particularly have any objections to the application apart from disclosure and perhaps the opportunity of the applicant to apologise to them.

CHAIRPERSON: You will give us the names, you will write out the names of the people that you're appearing for and hand it in at some stage, so that it will form part of the record?

MR HARKOO: Sure.

CHAIRPERSON: How many victims are there that you are representing?

MR HARKOO: There are 13 victims in all of whom five are present today.

CHAIRPERSON: And you're appearing for the five?

MR HARKOO: For the five, yes.

CHAIRPERSON: Alright. Yes, are we ready to proceed?

You may call your first - you may call the applicant.

MR DEHAL: Chairperson I think it's just for the Evidence Leader to place his details on record.

CHAIRPERSON: Does he have any details to place on record?

MR MAPOMA: Thank you Chairperson. My name is Zuko Mapoma, the Evidence Leader. Thank you.

MR DEHAL: I'm indebted to you. Mr Chairperson, just before we begin, perhaps I should just clarify that in the course of the last two days, despite the difficulties of our time - sorry, despite the time constraints in consulting with Tom Madlala, we've endeavoured to formulate a statement which is at the moment ready and attempts are being made to have it faxed here to these offices. It has not arrived as yet, so as to expedite the matter, I have decided to proceed with the application as it is. As and when that statement arrives, I will use it. Forgive me that indulgence.

CHAIRPERSON: That's quite alright, you may do so.

MR DEHAL: Thank you.

CHAIRPERSON: What about the second applicant? You have a statement of his, you're not calling any further statements from him?

MR DEHAL: Yes, I have a statement. His is on its way. It should be here in the next hour.

CHAIRPERSON: That's the second applicant?

MR DEHAL: Correct.

CHAIRPERSON: Very well.

MR DEHAL: May the applicant be sworn in?

CHAIRPERSON: Yes please.

TOM JABULANI MADLALA: (sworn states)

EXAMINATION BY MR DEHAL: Mr Madlala, is it correct that you made an application for amnesty which is contained in this bundle, marked pages 8 to 22? Sorry, I'll show it to you. Here it is.

MR MADLALA: That is correct.

MR DEHAL: Have a look at these pages, pages 1 to 7. Is this application on pages 1 to 7 in your handwriting?

MR MADLALA: Yes, that's correct.

MR DEHAL: Do you confirm the correctness of the contents of this application?

MR MADLALA: Yes, I do.

MR DEHAL: Now on the first page, page 1 in paragraph 7 (a) you say that you were a member of the African National Congress, in (b) you say that you acted as a Chairperson of the Youth League under the United Democratic Front, is that correct?

MR MADLALA: That is correct.

MR DEHAL: And on page 2, under paragraph 9(a), you say that as a - sorry, leading the UDF Youth League, you were responsible for the death of IFP members, do you see that?

MR MADLALA: That is correct.

MR DEHAL: And you say that this incident took place on the 25th of March 1990 at a place called Umtwalumi in the Umzinto area near the Caesar Bantu Beer Hall, correct?

MR MADLALA: That is correct.

MR DEHAL: And in paragraph 9 (iv) at the bottom of page 2 of the bundle, you set out the nature and particulars as follows:

&#9;&#9;"There was a dispute in the area between IFP member who were led by chiefs and councillors of the area, you called them Umtwalumi tribe and the UDF, the Umtwalumi Youth League, which was formed by yourself."

MR MADLALA: That is correct.

MR DEHAL: You say that:

&#9;&#9;"The ANC was in exile at the time and chiefs were opposing any formation of an organisation associated with it. Those chiefs were Chief Bhekizizwe and Luthuli and Chief Khalakuba Kawula."

MR MADLALA: That is correct.

MR DEHAL: On page 3 of the bundle in paragraph 10 (b) you say that:

&#9;&#9;"As a result of this on-going conflict, many people were killed on both sides and houses were burnt."

MR MADLALA: That is correct.

JUDGE DE JAGER: Could you kindly tell us, he's applying for amnesty in respect of the murder of who in particular and on what dates, because we'll have to give that in our decision.

MR DEHAL: That is contained, Mr de Jager, in the next paragraph on page 3, 9(c) where he gives out the names as Mr Jabuliswe Thabethe, Mr Nana Shinga, Mr Thulani Gumede and others and by others, if you look at the pages, I don't know whether you have this in your bundle, but the first two pages which are not enumerated, preceding page 1, you will find that there are sixteen persons names there, it's for all sixteen.

JUDGE DE JAGER: For all sixteen named as victims in the summary by the analyst?

MR DEHAL: Correct. May I just confirm this? Bear with me.

JUDGE DE JAGER: I presume he wouldn't know the names of all the persons killed at that occasion, but he's applying for all the deaths that occurred on that date at that place during an attack they launched.

MR DEHAL: That is correct and in addition, may I just say that it was incorrect for me to presume that the first two pages preceding the application at page enumerated 1, details all the victims, it does not, in fact on the contrary this is a page that details the names of some of the comrades who participated within the ranks of the ANC under the wing of this applicant and also some of these people were killed well after the applicant came to be arrested and not on the applicant's instructions, so perhaps I could take instructions on that later and clarify it.

CHAIRPERSON: I think that what is clear is that he may not know all the people that were killed, because he wasn't the only man, he was part of a group of people that carried out a general attack and some of his colleagues were responsible for some of the deaths and so on. I understand that because he gave the order and because he led the people, that he's assuming responsibility for their acts.

MR DEHAL: Absolutely correct.

CHAIRPERSON: Now that being so, I think that at some stage, you will get him to tell us people whom he personally was involved in attacking, injuring or killing, point one and that he takes responsibility for the deaths of the others who's names, if they are made available to him, he may confirm.

MR DEHAL: Thank you very much. Mr Chairperson, I think that these two questions are somewhat exhaustively dealt with in the proposed statement I talk of. Unfortunately it's not here. Thank you. May I proceed?

CHAIRPERSON: Yes, please.

MR DEHAL: Thank you. Mr Madlala, I now take you to page 3 of your application. We were dealing with paragraphs 9(c). You've detailed the names of some persons and you say: "and others". That is something we will deal with later, okay?

MR MADLALA: Okay.

MR DEHAL: Now in paragraph 10(a), you say - sorry on page 3 at the bottom:

&#9;&#9;"The political objective was to create political tolerance and liberating your people from the laws of apartheid."

MR MADLALA: That is correct.

MR DEHAL: And on page 4 in paragraph 10(b) you say under justification for these acts, omissions or offences:

&#9;&#9;"There is no justification for loss of life and damage to property."

You however feel that:

&#9;&#9;"Had the chiefs in the area allowed organisations like the African National Congress, the situation could have been kept under control. Political intolerance displayed by chiefs and Inkatha Freedom Party sparked the unnecessary violence."

MR MADLALA: Yes, that is correct.

MR DEHAL: I then take you to page 5 of the bundle, paragraph 11 (b) wherein you deal with the particulars of orders, approvals given and obtained. You say the following:

&#9;&#9;"I, Tom J Madlala, selected a group of 26 strong men from the UDF, Umtwalumi Youth League, gave them the weapons and ammunition and also gave them the order to protect our people, by shooting to kill our attackers."

MR MADLALA: That is correct, I said so.

MR DEHAL: You then deal with ...(intervention)

CHAIRPERSON: What sort of weapons did you give them?

MR MADLALA: There were various weapons, firearms, assegais, bush knives and ordinary knives.

CHAIRPERSON: Yes.

MR DEHAL: Thank you. Then you deal with your having been charged in the Umzinto Magistrates Court, held at the Scottburgh Courts and ...(indistinct) under case number H 269/90 with ten counts of murder and one count of arson. You say that you were convicted, you were found guilty of four counts of murder, you were sentenced on the 8th of August 1991 to 15 years imprisonment. Is that correct?

MR MADLALA: That is correct.

MR DEHAL: Is it correct that you are presently held in custody serving this very sentence of 15 years at Westville Prison presently?

MR MADLALA: That is correct.

CHAIRPERSON: Can I just ask for clarification, is he able to say whether the 15 years was 15 years in respect of each of the four counts to run concurrently, or was 15 years the total of the sentence for the four counts?

MR MADLALA: It is 15 years for each count, but they ran concurrently.

CHAIRPERSON: Yes, do carry on.

MR DEHAL: Thank you. Mr Madlala, I now take you to page 8 to 22 of the bundle. This is a letter that you sent to the TRC Amnesty Committee in which you detailed relatively exhaustively the events of the 25th March 1990 being the date on which these incidents for which you seek amnesty occurred. Do you see that?

MR MADLALA: Yes, I wrote the letter.

MR DEHAL: So this is your handwriting, is it?

MR MADLALA: Yes, it is.

MR DEHAL: Do you confirm, for the purposes of this record, the correctness of the contents of that letter in its entirety, as being correct?

MR MADLALA: Yes, I do.

MR DEHAL: If I may take you to page 13 of this letter - sorry, forgive me, firstly to page 9 of the letter, from line 8 downwards, do you see you say that you appeared before Mr van Aarde Esq on a charge of attempted murder of Mr Gabenga Mzelemu who was the leader and also the number warlord of Inkatha Freedom Party. The trial was adjourned until the 25th of May. Later that case was withdrawn against all the comrades on the 26th of July 1990. Correct?

MR MADLALA: That is correct.

MR DEHAL: And then you say you were subsequently arrested by officer van den Berg who conveyed you to the Meshlomanyama police station, whereafter you were held incommunicado, for 90 days?

MR MADLALA: That is correct.

MR DEHAL: You were held as a political detainee, without any rights to see your family. You deal with that on page 11, 12, you were not entitled to see a lawyer, you in fact had no visitation rights. On page 12 you record that your attorneys were Mr Rosh Dehal, that's myself, Mr Marcus Gumede and Ms Indira Kooverjee or Dehal Incorporated. Correct?

MR MADLALA: That is correct.

MR DEHAL: But that you could not get any visits from any of them either?

MR MADLALA: Yes. The attorneys only managed to visit me after three weeks.

MR DEHAL: Yes, you deal with that at the bottom of page 12 and page 13 and then if I take you to page 13, at the middle of that page, actually let's begin at the top. You say: 

&#9;&#9;"At Scottburgh Magistrates Court, South Coast, you were indicted for the charge of public violence and that public violence was commuted, you say, to a charge of 10 counts of murder and one count of arson. All those charges were related to the incident that took place at Umtwalumi in the district of Umzinto near Caesar Bantu Beer Hall on the 25th of March 1990 in which 13 IFP people were shot, stabbed and hacked to death by you and the members of the UDF Umtwalumi Youth League."

Do you see that?

MR MADLALA That is correct.

MR DEHAL: So are you seeking amnesty for the deaths of these 13 IFP people who were so stabbed and hacked to death?

MR MADLALA: That is correct.

MR DEHAL: And as I understand it, in this paragraph you are saying that whilst you personally acted in so causing their deaths, there were others who assisted you under your instructions within the rank of the UDF Youth League in that area.

MR MADLALA: That is correct.

JUDGE DE JAGER: Was he also convicted on the charges of public violence and arson?

MR MADLALA: The charges were both withdrawn.

MR DEHAL: Then in the next paragraph on page 13, you say that on the 24th of March 1990, now this is the date immediately preceding the day on which the incidents for which you seek amnesty took place, you say:

&#9;&#9;"On that day the 24th March 1990, the Mawaka and Umgageni villages had been a stronghold of the ANC. Our people were attacked and killed. The women were raped. Sorry - the women were raped and I think then you said the attacked, according to eye witnesses and victims was conducted by Inkatha members, or well-known people of the Umtwalumi tribe. Among them were Headman Umkopane Radebe, the Warlord Ungandu Luthuli, Mr Zonkezintho Shinga, Warlord Sipo Ngwane, Warlord Roy Blackenberg and others with their support."

Correct?

MR MADLALA: That is correct.

MR DEHAL: On page 14 of this letter, you continue at the top to say that:

&#9;&#9;"These IFP members and warlords acted with the support of the KwaZulu police, ZP, and the SAP of Hibberdene and Port Shepstone police station."

MR MADLALA: That is correct.

MR DEHAL: You say five of your people, by your people I presume you mean the UDF Youth League?

MR MADLALA: Yes.

MR DEHAL: You say five of your people had been gunned down. You then detail their names, Comrade Pholakele Dolly Ndwane 19 years old, Comrade Khulubone Mcame 30 years old, Comrade Kubu Kuebe Mzelemu 31 years old, Comrade Keshla Mkhize 27 years old and Comrade Zamfana Radebe. These were all murdered, others were wounded, including women, men and children.

MR MADLALA: That is correct.

CHAIRPERSON: Did all this take place on the 24th of March?

MR MADLALA: That's correct.

MR DEHAL: You then continue to say in the next paragraph on page 14, that's the second paragraph, that you were absent in the area that day. In that attack three IFP people were also killed by the UDF comrades in self-defence. Correct?

MR MADLALA: That is correct.

MR DEHAL: Then you deal again with the 25th March, that's the date on which the incidents for which you seek amnesty occurred, sorry 25th March 1990. You say:

&#9;&#9;"On 25th March 1990, Mawakha police warner by me personally of an imminent attack..."

CHAIRPERSON: That's supposed to be warned, I think.

MR DEHAL: Sorry, is that warned?

CHAIRPERSON: Warned.

MR DEHAL: Thank you very much. 

&#9;&#9;"The police warned by me personally of an imminent attack on residents by Inkatha Freedom Party, IFP members and supporters and her hit squad. No deterrent action was taken."

MR MADLALA: That is correct.

MR DEHAL: You say you found yourself as a leader of the UDF Umtwalumi Youth League, under pressure to make the special arrangements for arming your people to protect your innocent people. You were under pressure to protect your people which means that you were forced to shoot to kill on occasions and you also gave the instructions to all your comrades to do the same. It is unfortunate that 13 people belonging to the IFP were killed by you and your comrades. Is that correct?

MR MADLALA: That is correct.

CHAIRPERSON: Who exerted this pressure on you?

MR MADLALA: It was the attack that was launched by the IFP.

CHAIRPERSON: So it wasn't any particular person who exerted pressure on you, it was the event?

MR MADLALA: It's not that I was pressurised by a particular person, but it was the situation that took place in the area.

CHAIRPERSON: Yes, carry on.

MR DEHAL: Thank you. On page 15 you then continue in the second paragraph, to deal with the day following the incident of the 25th March. You say:

&#9;"On the 26th March 1990 at Mawakwe, Inkatha supporters with a group of strong armed SAP invaded Mawakwe and Umgangeni which resulted in the loss of at least five lives of your people. Comrades Mrs Nthombilesi Gambushe, Comrades Miss Bonakele Majola, Mr Nkanaza Mzelemu, Comrade Mrs Malunga with her five month old baby on her back and Comrade Miss Pungzile Gambushe, were seriously wounded, lost her unborn baby, she was hospitalised for months at Port Shepstone Hospital and that 12 more houses were burnt down in that incident of the 26th March."

MR MADLALA: That is correct.

MR DEHAL: You then set out that on the 29th of March 1990, two days later, on the third day following, you and others narrowly survived death. You were accompanied by others, that's three comrades, on the way to Durban. That's Comrade Mzongile A Madlala, Comrade Miss Nanake Shanga, Comrade Mr Fikane R Madlala and yourself, Tom Madlala, when you were kidnapped by the three members of IFP Third Force and then you go on to page 16. You say:

&#9;&#9;"Madlala and Mr Raymond Fikane Madlala were shot and wounded and you were rushed to Port Shepstone Hospital, under a strong armed policemen escort."

You say one man was killed instead, but no arrests have been made.

MR MADLALA: That is correct.

CHAIRPERSON: The Madlala you mention there is not the person who is the second applicant, Falake Professor Madlala?

MR MADLALA: No.

CHAIRPERSON: That's not the same person.

MR MADLALA: No, it's not the same person, but he's also present here.

CHAIRPERSON: No, I understand that. I'm talking about being involved at that time. Whether he was present with you or not. Yes, carry on.

MR DEHAL: So the second applicant was not involved in this incident. Correct?

MR MADLALA: No.

MR DEHAL: You then say in the next paragraph on page 16:

&#9;&#9;"The main suspect."

That's the second paragraph, sorry.

&#9;&#9;"The main suspect was the IFP leader, Mr Mbabana Sengani."

Is that Sengani?

MR MADLALA: Sengani, yes.

MR DEHAL: 

&#9;&#9;"But the police refused to arrest him just because he is an IFP leader."

MR MADLALA: That is correct.

MR DEHAL: You say you personally made a sworn statement and implicated Mr Sengani, but despite this, no one was arrested by the South African Police.

MR MADLALA: That is correct.

MR DEHAL: You then continue to say that the residents were all totally evicted from their homes, their goods confiscated, their houses forcefully occupied by IFP supporters, that not a single former resident was restored to his or her home, but despite this, no arrests have been made.

MR MADLALA: That is correct.

CHAIRPERSON: Now this incident, this paragraph, when you say the residents were all totally all evicted, is that relating - is it a general statement you are making or is it an event that occurred on that day when you missed or you escaped being killed, 29th of March?

MR MADLALA: It's something that started on the 10th of February 1990 up until the 26th of March.

CHAIRPERSON: ...(indistinct - speaking simultaneously)

MR MADLALA: Yes.

CHAIRPERSON: Alright. Carry on.

MR DEHAL: Thank you. Then I see that you skip a few months and you go to the 8th of August 91, at the bottom, page 16 on the last paragraph. You say that on the 8th of August 1991, you were tried, convicted and sentenced to 15 years imprisonment for four counts of murdering the IFP people. You were sentenced by Justice Andrew Wilson at Scottburgh Supreme Court, a Circuit Court.

MR MADLALA: That is correct.

MR DEHAL: Then again you generalise. On page 17 you deal generally with the background of the issue and you say :

&#9;&#9;"There was a dispute in the area between IFP members who were led by chiefs, Chief Luthuli, Chief Galaku, Gwelaluko from Mkwawula and Councillors of the area on the one side and the UDF Youth League,"

... which was formed and led by yourself on the other, consisting also on your side of the ANC who was then in exile at the time, of course represented locally by yourself through the UDF. You say the chiefs were opposing any formation of an organisation associated with them. By "with them" I presume you mean with the ANC?

MR MADLALA: With the ANC, yes, of course. That is correct.

MR DEHAL: You say arising generally from this general dispute between the two sides, many people were killed on both sides. Some went missing and houses and kraals were burnt. The UDF Front was operating with the ANC approval.

MR MADLALA: That is correct.

MR DEHAL: Now if I may just stop there and go a little backward. If I may take you to the occasion when first you became politicised. Do you recall when that occurred?

MR MADLALA: I first became involved in politics in 1986.

MR DEHAL: Can you tell this Committee briefly how that arose? Which organisation did you support and how did you become a member of it and whether it was still in exile, etc?

MR MADLALA: I supported and joined the UDF but the organisation that existed in my area was the IFP and it was through the IFP that I learned about the ANC, although it was difficult at that time to identify ANC members and supporters. The IFP would let it be known that there were people they were fighting against, people who were imprisoned, that was when I became interested in knowing who these people are and where they are. That is how I gained knowledge about the ANC, but my first involvement and active role started in 1989.

MR DEHAL: Thank you. Mr Madlala, I see that you say on pages 20 - sorry on page 21, 22, that these are 62 persons whom you could recall being a list of known names of the UDF people whose houses were burnt down at Umtwalumi by the IFP people.

MR MADLALA: Yes, I compiled that list.

MR DEHAL: And I see you say to the TRC on the side of page 22 that if they wanted more information on this, they should contact myself at my offices.

MR MADLALA: Yes.

MR DEHAL: Is it correct that - sorry, firstly may I ask you, will you please detail how it came about that I, as your lawyer of this area during that time, came to have a record of these people who died, dealing with their funerals etc within the ranks of the UDF in the course of that struggle?

MR MADLALA: I was associated with Mr Dehal because I knew him to be a lawyer for Human Rights. I then approached Mr Dehal after certain comrades had been detained without trial, after a police raid in Umtwalumi. I then approached Mr Dehal at his offices to seek assistance because we did not have money but we requested legal assistance. That's how I got to know him.

MR DEHAL: Just go a little slower, okay. Carry on.

MR MADLALA: From that time onwards, he would represent comrades who were detained and he will also represent those people who would be murdered and he would also contribute to their funerals and also contribute towards bail fees for those who were detained. That is how we became associated and we are still associated up to this day.

MR DEHAL: Is it correct that there are records available of at least these 62 people who belonged to the Youth League of the UDF under your wing, under your instructions, with you as the leader of the that Youth League of the UDF, who suffered prejudice at the level that you have recorded on pages 21 and 22?

MR MADLALA: Yes, the records and the statements are with the attorney, Mr Dehal. After their houses were burnt down, we hired a bus.

JUDGE DE JAGER: Didn't he give evidence about this before the Human Rights Commission and the Reparations Committee of the TRC and send in details?

MR DEHAL: Sorry, Mr de Jager, I'm not aware of that. I know that this applicant has had on-going difficulties in having his applications heard and various presentations brought before different forums and perhaps he can answer that question.

JUDGE DE JAGER: Yes, because this concerns the victims that should be referred to the Reparations Committee and it's not connected with the Amnesty as it were.

MR DEHAL: I agree. It seems as though it was not done. Can we just ask him, if you don't mind? Mr Madlala, have you given evidence before the TRC's Reparations Committee relating to the victims especially these 62 victims?

MR MADLALA: Yes, on the 10th of July 1996, I contacted the TRC through the Social Workers in prison. The statement takers from the TRC came to me on the 10th of July and I made a statement about ANC victims and I also made a statement about IFP victims, particularly those who were killed by comrades that I was aware of. I also made a statement about the victims who had died, ANC victims as well as people whose houses were burnt down. On the 19th of November 1998 a Commissioner from the Reparations Committee, came to me. He had forms which they could fill, that is for the people whose statements had been approved by the TRC. I then made arrangements for those people to converge at Hibberdene to fill those forms. That is what has happened with regards to the people on this list. Unfortunately I sent messages to IFP victims, but I got no response, but I have heard since that some people did go to fill out the forms. Likewise with ANC victims, those people who did not turn up to fill in the forms and I was informed that they were intimidated by the Chief who warned them not to involve themselves with me or the TRC, so those people have been unable to fill in those reparation forms. That is all I know.

MR DEHAL: Thank you.

CHAIRPERSON: Are you able to tell me, you may or may not, are you able to tell me during what period these people whose houses were destroyed or burnt down, whose names appear on this list, whether that occurred - during what period was that?

MR MADLALA: This first started on the 10th of February. Also on the 11th of February and it stopped for a while. It restarted on the 16th of March and on the 24th and the 25th as well as the 16th of March. I was then arrested in April, so I do not know what happened thereafter.

CHAIRPERSON: Thank you. 

MR DEHAL: And all of this in the year 1990, is it?

MR MADLALA: Yes, that is correct.

MR DEHAL: Thank you. Mr Madlala, I now take you to pages 23 to 25 of the bundle. Is that an affidavit that you deposed to, I see that the copy that we have is not signed, but will you confirm that this is your affidavit which deals with this incident briefly, the background of your political activity, the issues between the IFP and the UDF and do you confirm the correctness thereof?

MR MADLALA: Yes, I made the statement, although it is a shortened version because Mr Cele said I would give more details when I appear before the Committee.

MR DEHAL: And of course the statement which you've signed, is the handwritten statement contained on pages 26 to 32 of the bundle, which has now been typed, being the one we've just referred to. Correct?

MR MADLALA: That is correct.

MR DEHAL: Mr Chairperson, I am indebted to you for the indulgence. My assistant has just walked in. This statement is at hand. May I cause copies to be handed over?

CHAIRPERSON: Yes, certainly.

MR DEHAL: Thank you.

CHAIRPERSON: This document will go in as Exhibit A.

MR DEHAL: Thank you. Mr Madlala, I know that you have not seen the statement. I have not either, but this is a statement compiled on your instructions to Ms Mohammed from my offices. Can we go through the statement briefly?

CHAIRPERSON: If you can avoid repeating what has already been covered fully so far, I'll be pleased.

MR DEHAL: Thank you.

JUDGE DE JAGER: Could I perhaps suggest that during the tea adjournment, you go through and he could only confirm it? You need not read it out again, we've heard his evidence.

CHAIRPERSON: Unless there is something here which is not in the previous statement.

MR DEHAL: I agree with that. I see it's almost 11 o'clock. Can we take that short adjournment?

CHAIRPERSON: We'll take the adjournment and resume at 11.15.

MR DEHAL: Thank you very much.

COMMITTEE ADJOURNS

ON RESUMPTION

TOM JABULANI MADLALA: (s.u.o)

EXAMINATION BY MR DEHAL: (Cont)

&#9;Mr Madlala, do you confirm that during the short recess you were taken through this statement, Exhibit A, and you confirm the correctness thereof, save for the word evening in paragraph 18? What do you want to alter that to? You said the same evening is incorrect. Do you want to say: "The same day"? Is that it?

MR MADLALA: I did not understand it clearly because the incident happened during the day, so the word evening poses a problem.

MR DEHAL: So if I altered that to read the same day, meaning the 25th of March, would that be okay with you?

MR MADLALA: Yes, I would agree with that. 25th of March, during the day, not in the evening.

MR DEHAL: Thank you. Mr Chairperson and Honourable Members, may I then ask that Exhibit A, paragraph 18 be amended to read "The same day (25th March 1990)"?

CHAIRPERSON: That amendment will be made.

MR DEHAL: Thank you, Sir. So Mr Madlala, apart from that, do you confirm the correctness of Exhibit A on all 22 paragraphs?

MR MADLALA: Yes, that is correct.

MR DEHAL: May I take you to paragraph 13? If you recall, just before the short adjournment, in answer to the Chair's question, you talked of the period as having commenced on the 10th of February, do you recall that?

MR MADLALA: I would like to clear up something. We should rather start in January and not February.

CHAIRPERSON: What started in January?

MR MADLALA: That was the beginning of the IFP attack launched on my home on the 1st and 2nd of January as well as on the 7th, as well as a meeting that I held with IFP leaders on the 8th of January, so that everyone would be in the picture of what happened. I would like to be given an opportunity to talk about this incident briefly, particularly for the benefit of the victims.

MR DEHAL: Yes, I don't mind that, but do you mind just looking at paragraph 10 before you do so? On page 2 of Exhibit A, you deal there with the 1st of January 1990, do you see that?

MR MADLALA: Yes.

MR DEHAL: Yes, you were wanting to say something?

MR MADLALA: Let us look at paragraph 9.

MR DEHAL: Yes, carry on.

MR MADLALA: What happened was the Umtwalumi Youth League was formed in 1986, but it operated underground and was not known to many people. There was a complaint launched with the chief, that there were people heard in the evenings, singing, but the community didn't know who those people were. In 1989 the chief gave his approval to the youth at ...(indistinct) to meet and discuss what political party they were supporting, whether the UDF or IFP. That meeting was to be held on the 29th of September 1989 at my home.. My home was the stronghold of the IFP. Everything was done there at home.

CHAIRPERSON: Did I hear him correctly that his home was the stronghold of the IFP?

MR DEHAL: Prior to his becoming a UDF ...(indistinct - speaking simultaneously), indeed.

MR MADLALA: Yes my home. That meeting on the 26th was not successful because people did not pitch up. It was then postponed to December, 30th. Before this date the youth would approach me and wanted to know if they should attend the meeting, so I encouraged them to do so and informed them that the meeting will no longer be held at my home but at a certain mountain in ...(indistinct). So the meeting was held and a lot of young people arrived. I chaired that meeting and I first explained to them about the IFP, about the UDF and about Cosatu and about ...(indistinct). I then challenged the youth present, asking them: "How long are we going to operate underground? Why don't we operate openly?" As the meeting was still in progress the Chief came, he was with my father who was his Induna. They were also with the Councillor Mr Zuma. The Chief stopped the car a distance away and sent my father to come to us. When my father arrived, he informed us that the Chief requested minutes of this meeting for him to know whether the youth supported the IFP or the UDF. A dispute arose between myself and my father because the meeting was not formal, it was just a mass meeting, therefore the Chief would not be in a position to obtain any minutes. My brother, Madambe, also had a dispute, an altercation with my father, but to avoid further conflict, I promised my father that I would hand over the minutes for him to give to the Chief. My father then returned to the car. That is when Umtwalumi Youth League was formed. The Executive Committee was also elected on the very same day.

CHAIRPERSON: Can I just interrupt at this stage? For purposes of my record, what was the name of the Chief to whom your father was the Induna.

MR MADLALA: Chief Bhekizizwe ...(intervention

CHAIRPERSON: Can you spell that?

MR MADLALA: B-H-E-K-I-Z-I-Z-W-E Narvad Luthuli.

CHAIRPERSON: What is the second name?

MR MADLALA: The second name is Narvad.

INTERPRETER: He says Narvad.

CHAIRPERSON: The second name was?

MR MADLALA: N-A-R-V-A-D.

CHAIRPERSON: Thank you.

MR MADLALA: The surname is Luthuli.

MR DEHAL: Mr Madlala, having set the background, can I take you to the 10th of February? Is that fine?

MR MADLALA: Let me just finish off about that, about the 30th of December.

CHAIRPERSON: I don't know, only if it's necessary, because a lot of the background has been covered. Greater detail may not advance the case very much further. It might make very interesting reading, but for the purposes of the present application, ...(intervention)

MR DEHAL: I agree.

CHAIRPERSON: Make the points that you wish to emphasise.

MR DEHAL: I agree. Mr Madlala, that background's been adequately set. Do you mind if we proceed to the 10th of February? If I may take you to paragraph 13 of Exhibit A.

MR MADLALA: Okay.

MR DEHAL: You say that on the 10th of February, 48 houses in the Umtwalumi area were burnt by the IFP. You saw that the police were present, but they did nothing to prevent this. The Comrades and the IFP once more clashed. Two IFP members were killed. You killed one of them but no charges were proffered against you. Now, do you know the person you killed?

MR MADLALA: No, I do not.

MR DEHAL: Why not?

MR MADLALA: What happened from the 1st of January was that the IFP would collect people from other areas, areas like Lindelane or ...(indistinct) at Emapondwene and people from Chief Kawula's area, so that most of the people who were killed were not known to me. I did not know them. For instance, on the 1st of January I shot somebody at my home. I did not know who that person was. He was another gentleman from kwaMakhutha, therefore when we clashed with the IFP, it would be - we were fighting against people we did not know because they were not from the area. This did not happen just on these two occasions but there were many others where unknown persons would attack us, some of them speaking Xhosa.

ME DEHAL: I take you to paragraph 14, which deals with the following day, the 11th of February. You say here that the IFP once more attacked the area, more houses were burnt, a fight once more ensued between the IFP and the Comrades. You personally shot and killed two IFP members. You were not arrested for this incident. Later that night several comrades were abducted and killed by the IFP. Now, this person that you shot and killed was an IFP member, sorry two of those persons. Do you know who they are, or can you not tell for the same reasons, for the reasons adduced relative to the incident on the 10th of February?

MR MADLALA: I do not know with regards to the people who died on the 10th but I did not know the people who died on the 11th either.

MR DEHAL: Thank you. You then say that on the 13th of February, in paragraph 15 of Exhibit A

&#9;&#9;"The police raided the area and arrested 16 comrades. They were charged with public violence."

You were arrested later together with other comrades and you were charged with public violence and one count of attempted murder. 

&#9;&#9;"During this time, Mr Dehal (that's myself and other legal representatives from my office) represented UDF members. After several court appearances, the charges of public violence and attempted murder were withdrawn."

Is that correct?

MR MADLALA: That is correct.

JUDGE DE JAGER: But you have already told us that before, why should he repeat it, that those charges were withdrawn?

MR DEHAL: Correct.

JUDGE DE JAGER: Carry on.

MR DEHAL: Thereafter you deal with the 24th of March and the 25th of March which we have now lawfully dealt with. In fact you dealt with that exhaustively when you dealt with the exhibits in the bundle, correct?

MR MADLALA: That's correct.

MR DEHAL: The second applicant, Falake Madlala, is he your younger brother?

MR MADLALA: Yes, he is.

MR DEHAL: And is it correct that he fell under the wing - under your command under the wing of the UDF Youth League and acted under your instructions?

MR MADLALA: That is correct.

MR DEHAL: Sorry, just one additional aspect. If you look at page 51 of the bundle, there is a victim known as Mzelemu, who claims to be your uncle and who says that on the 3rd of February 1990, his house was attacked by you, the applicant and a number of other people unknown to him.

MR MADLALA: Page?

MR DEHAL: 51. 

MR MADLALA: I know that person, he is my uncle.

MR DEHAL: Now you've not applied for amnesty for this incident. Do you know of this incident? Were you involved in this incident?

MR MADLALA: I did not apply for amnesty for that incident because I did not take part in that incident, I was away at the time.

MR DEHAL: I understand from your instructions that you had a mass democratic movement, UDF/ANC aligned meeting on the morning of that day when your uncle was attacked. You'd chaired that meeting and you were away from the area. Correct?

MR MADLALA: That is correct.

MR DEHAL: Do you know whether the second applicant, Falake, was involved in this incident relating to the attack on your uncle?

MR MADLALA: As far as I know, he was not present. I was informed that he arrived later when my uncle had already been attacked.

MR DEHAL: Yes. Now if I may just take you back to lastly the 25th, the day on which the incidents occurred for which you are seeking amnesty, can you briefly detail how it occurred that these people whose deaths occurred, came to be attacked by you and the comrades under you? What gave rise to the problem?

MR MADLALA: I would begin on the 24th.

MR DEHAL: No, I think we've dealt with the 24th. We've gone through your letter on that.

MR MADLALA: Okay.

MR DEHAL: And those details are fairly sufficient. We've also dealt with the 25th and the number of persons that died and the clash between the chiefs and yourselves. Just to get to the point of saying precisely how on the 25th, from that morning, what happened and how it happened.

MR MADLALA: Okay. On that day we left our camp which was a farm because by that time most houses had been burnt. There was a problem that some of our comrades were missing after being attacked. I had sent Martials to go and check if it was safe to return to our camp and we were informed that it was safe, so we returned. On our way, I instructed them to go check along the way if there were dead bodies along the way seeing that there were people missing. The first person we came across was Dolly Ngwane. She was around 14 years of age.

JUDGE DE JAGER: Mr Dehal I think that you've led evidence that this was part of this on-going war. If you look at the bundle, even the Attorney-General of the province at that stage, accepted that these murders were associated with a political objective. Nobody has attacked it so far, so I - unless somebody would dispute that, I think as far as I'm concerned, I'm satisfied that these were deeds associated with a political objective so I don't think whether you should labour it any more, unless if we've got problems we'll ask questions about it.

MR DEHAL: I'm indebted to you, Mr de Jager, in fact I support and endorse those sentiments. The only reservation, the reason that necessitated this testimony is that the Evidence Leader drew to my attention that the victims would like to hear in the own words of the applicant how it happened, so I think it's sufficiently covered actually. Thank you. Mr Madlala, that would conclude your application for amnesty and if there's something you haven't dealt with on any given point, on any aspect that you now seek to address on which we haven't dealt with, then you can deal with those, but I think we've dealt with all the aspects, haven't we?

MR MADLALA: Yes.

MR DEHAL: Thank you. That is the evidence. Sorry.

MR MADLALA: Maybe for the benefit of the victims, would it not be proper to go through the 25th in detail?

MR DEHAL: Well, we've dealt with it as per your letter which has sufficient details for the present. I think if you are cross-examined or questioned by the Evidence Leader for specific details, perhaps at that occasion we can deal with it.

MR MADLALA: Thank you.

CHAIRPERSON: Counsel for the objectors, the dependants, he is present, he may wish to ask questions and you can then give the answers at that stage, if he requires the answers to those questions. Alright?

MR DEHAL: Thank you, Sir. So that concludes the evidence for this applicant.

CHAIRPERSON: Thank you.

MR DEHAL: Thank you Chair.

NO FURTHER QUESTIONS BY MR DEHAL

CHAIRPERSON: Mr Harkoo.

MR HARKOO: Thank you Mr Chairman.

CROSS-EXAMINATION BY MR HARKOO: I just want one point of clarification. Mr Madlala, you'll accept that your attack on these persons on the 25th, was basically an attack that was against IFP members, but you were not aware precisely who those persons were at that point in time. Is that correct?

MR MADLALA: When we attacked, we directed the attacks to the IFP members, but we didn't have a list of names as to who, but we were attacking IFP members and we knew very well that there wasn't a single person who wasn't IFP.

MR HARKOO: Yes. At the same time, it may very well have been that those members were in fact not necessarily perpetrators of violence. While they may have supported the IFP, they may have been members of the IFP, but those persons, the deceased or those that were injured in that attack, were not necessarily perpetrators of violence, is that correct?

CHAIRPERSON: You mean violence the previous day?

MR HARKOO: Violence the previous day ...

CHAIRPERSON: Or on previous occasions?

MR HARKOO: Or on previous occasions.

CHAIRPERSON: Do you understand the question? On the 25th when you attacked people whom you knew to be IFP, was it because of their involvement on the attack on the UDF the previous day, or was it because of their previous attacks on members of the UDF on other occasions?

MR MADLALA: Let me just clarify there as to what happened. In the morning I got a report from the martials. I was told that IFP was getting ready to attack us. I reported this matter to the police, who came to fetch the bodies and police said they didn't have manpower. There were people who were armed and they were ready to attack and I said to the comrades: "We mustn't wait for them to come and attack us, we must go first." To say that we were just guessing and that we attacked the wrong people, I'm saying even though some of them didn't attack us, but most people who were there were IFP members and they were the attackers.

MR HARKOO: Thank you. That is all. Thank you Mr Chairman.

MR MADLALA: And another thing also that I want to clarify here. We're not talking about violence which took place in the middle of the night, we're talking about the violence that took place during the day. This happened during the day, not in the night.

CHAIRPERSON: On both sides there were women and children who were attacked, is that correct?

MR MADLALA: It was common knowedge that IFP attacks indiscriminate and also they were burning down houses. We did the same on the 25th.

CHAIRPERSON: Yes, I understand. No further questions?

MR HARKOO: No further questions.

NO FURTHER QUESTIONS BY MR HARKOO

CHAIRPERSON: Any questions you have?

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

NO QUESTIONS BY MR MAPOMA

CHAIRPERSON: What are you by occupation?

MR MADLALA: I was working in a factory.

CHAIRPERSON: What kind of work?

MR MADLALA: I was a machine operator in that firm.

CHAIRPERSON: Machine for making what?

MR MADLALA: To make the springs which are used in beds and lounge suites.

CHAIRPERSON: What level of education have you had?

MR MADLALA: I am still studying, but I do have matric.

CHAIRPERSON: Are you married and do you have children?

MR MADLALA: I do have a fiancee and children as well. One and the other one passed away.

CHAIRPERSON: What is the relationship between you and your father now?

MR MADLALA: We love each other very well. I don't think we will ever be in conflict.

CHAIRPERSON: Thank you very much. Just hold on.

MR SIBANYONI: As an ANC leader, I'm just asking for the benefit of the Panel which is sitting in one of these matters, did you assist any of the people at Westville to complete their application forms?

MR MADLALA: We had a meeting, leadership of the ANC and IFP. We applied, most of them did so. I am still the Chairperson of the ANC in prison and I did so.

MR SIBANYONI: Are there any of the applicants which you completed the forms in your handwriting?

MR MADLALA: I think three of them because my attorney requested me to help him.

MR SIBANYONI: Are there any of them who are present during this week here?

MR MADLALA: No. I do have a problem because we experienced problems in Westville, we as members of ANC whenever we were putting our applications and if you check in the bundle, you'll see where I wrote and I was complaining and what I realise is that IFP members who lodged their applications, they were attended to, those applications, quicker than ANC members and I realised that and I wasn't happy. I called Cape Town on the 10th of January.

CHAIRPERSON: Thank you very much.

WITNESS EXCUSED

MR DEHAL: Mr Chairperson, that concludes the evidence for this applicant. May I just mention that, as can be seen from the crowd at the back, contained in that crowd are a number of persons who are potential witnesses who would support this applicant's testimony but lest the contrary deduction be drawn, given the nature of the cross-examination and the discussion I've had with my learned colleague who represents the victims, there seems little point in me calling those witnesses. For the reasons of expediency, I'd rather not. Thank you.

CHAIRPERSON: Very well. You're calling the second applicant?

MR DEHAL: I am. Thank you.

CHAIRPERSON: Please do.

NAME:&#9;FALAKE PROFESSOR MADLALA

APPLICATION NO:&#9;AM6454/97

--------------------------------------------------------------------------FALAKE PROFESSOR MADLALA: (sworn states)

EXAMINATION BY MR DEHAL: Mr Madlala, is it correct that you are the younger brother of the first applicant, Mr Tom Madlala and that you featured prominently within the ranks of the UDF Youth League, under the command of your brother, the first applicant, Tom Madlala?

MR MADLALA: Yes, it is.

MR DEHAL: I show you this bundle of papers, in particular pages 33 to 39. This is the English translation of your original application which is contained in the bundle on pages 40 to 49, which you completed in the Zulu language. Is this your application for amnesty and do you confirm that?

MR MADLALA: Yes, I do confirm.

CHAIRPERSON: In whose handwriting was that?

MR DEHAL: In whose handwriting is this application in Zulu?

MR MADLALA: It is mine.

CHAIRPERSON: Thank you.

MR DEHAL: Thank you. And is this your signature on page 48 of the bundle?

MR MADLALA: Yes.

MR DEHAL: Is it correct that you seek amnesty for exactly the same incidents, offences, acts, omissions that the first applicant seeks amnesty for?

MR MADLALA: Yes, that is so.

MR DEHAL: You were present at these hearings when the first applicant testified. You heard him talk about the political activity at the time in the area you lived in, the background to that political activity, the issues between the IFP and the ANC, UDF alliance and particularly the issue with the chiefs. Do you confirm all of that as correct?

MR MADLALA: Yes, I do.

MR DEHAL: Do you generally align yourself with the testimony of the first applicant Tom Madlala, insofar as it relates to you, particularly since both of you are applying for amnesty on the same counts?

MR MADLALA: Yes.

CHAIRPERSON: Was he convicted of the death of the same people as the first applicant?

MR DEHAL: May I just clarify that? Bear with me, Chairman.

CHAIRPERSON: Yes.

MR DEHAL: Thank you Chair. He was not even arrested on this count. In fact shortly after the incident and the arrest of the first applicant, this second applicant escaped from the area, was pursued by the police, but never successfully arrested, so he was not charged with these incidents.

CHAIRPERSON: And has he been - what is he serving a term of imprisonment for?

MR DEHAL: He's not in prison, he's actually outside prison. He's not serving any term. He's not been charged with any of these offences.

CHAIRPERSON: I'm sorry.

MR DEHAL: He's seeking amnesty purely because he now makes an open admission that he featured prominently and actively participated in these incidents.

CHAIRPERSON: Does he know the names of the people whose death he may have personally caused or would he not know this?

MR DEHAL: On the same lines as the first applicant deduced, he would have difficulty in recalling their names.

CHAIRPERSON: Thank you.

MR DEHAL: Mr Madlala, there is on page 51 a statement made by a man who says he's your uncle and who refers to an incident in which the first applicant had caused injury to his property. Do you see this? That's a Mr Mzelemu. Is he firstly your uncle?

MR MADLALA: Yes, he is.

MR DEHAL: This uncle talks in paragraph 3 of his affidavit on page 51 of an incident on the 3rd February, 1990. I understand that you and your brother, the first applicant, have a problem with that date. You know of this incident, but you say it occurred on a different date, but apart from that, I understand that you had nothing to do with this incident. Is that correct?

MR MADLALA: That's correct.

MR DEHAL: Thank you. You have a statement which you made, a copy of which I have placed before you. This statement - sorry Mr Chairperson, would this be Exhibit B?

CHAIRPERSON: I think it should be Exhibit B, yes.

MR DEHAL: Thank you. this statement, Exhibit B, is a statement that was compiled on your instructions to your attorney, is that correct?

MR MADLALA: That's correct.

MR DEHAL: I see that you've actually signed it, confirming it's correctness.

MR MADLALA: Yes.

MR DEHAL: On the basis that you have already aligned yourself with and confirmed as correct the testimony of the first applicant, Tom Madlala, and since the incidents are the same for which you both seek amnesty, I will not take you through the statement, especially since you've confirmed it as correct. I would ask you generally, do you - sorry, I think you say this in your statement. How do you feel about the victims? Do you wish to reconcile with them? I see in paragraph 14 you say you are deeply sorry for your actions and involvement in the attack, but you were forced to participate in these activities, so as to further the cause of the UDF as an organisation. 

&#9;&#9;"It was very frustrating to stand by and watch our people being constantly attacked. I do wish to reconcile with the families of the victims."

That's correct, is it?

MR MADLALA: Yes, that's correct.

MR DEHAL: Is there anything else you wish to add?

MR MADLALA: No, nothing.

MR DEHAL: Mr Chairperson, thank you very much. That's the evidence of the second applicant. Thank you.

NO FURTHER QUESTIONS BY MR DEHAL

CHAIRPERSON: Any cross-examination?

MR HARKOO: Thank you Mr Chairman, I have no questions.

NO QUESTIONS BY MR HARKOO

CHAIRPERSON: Have you any questions?

MR MAPOMA: No questions Chairperson, thank you.

NO QUESTIONS BY MR MAPOMA

CHAIRPERSON: Yes, thank's very much, you are excused. WITNESS EXCUSED

MR DEHAL: My Chairperson, on the same lines as applicable to the first applicant, relative to the second applicant, there are a number of witnesses who are available to testify to support his version, corroborate his version, but again there seems little purpose to be served in calling them, given again the lack of any cross-examination, the uncontested aspect of his version and for reasons of expediency, I will not call them.

CHAIRPERSON: Counsel for the objectors, or rather the dependants and so on, I have no doubt, has gone through the papers and seen from affidavits and statements made by relatives of the victims, who themselves in their statements say that there has been on-going conflict in the area between IFP and ANC and that all the violence that we've been hearing about stems from that conflict, so I think that whatever limitations counsel for the objectors has, quite clearly emerge from the papers themselves.

MR DEHAL: Indeed.

CHAIRPERSON: Do you propose calling any witnesses?

MR HARKOO: I have indicated, Mr Chairman, that I will not be opposing the application. I would however, make a request at the end of the argument that the applicants are at liberty to approach those victims or family of the victims that are here, merely as an attempt to apologise.

CHAIRPERSON: A reconciliation.

MR HARKOO: To reconcile. Thank you.

CHAIRPERSON: So you don't propose calling any evidence at this stage?

MR HARKOO: Not at all.

CHAIRPERSON: Thank you. Right you are. Have you any desire to call any witnesses?

MR MAPOMA: No Chairperson, I have no further evidence to tender.

CHAIRPERSON: Thank you.

CHAIRPERSON: All the evidence that has been adduced before us is adequately covered by the papers that have been submitted to us and I'm going to ask you to address us on what you think are essential matters to which special attention has to be given by this Committee and any other point that you would like to make.

MR DEHAL IN ARGUMENT: Thank you Mr Chairperson. Mr Chairperson, in as much as there has no been specific objection to any aspect of either the first or the second applicant's application for amnesty, apart from that, I submit respectfully that both the applicants' applications do fall squarely within the purview of Section 20(i) of the Promotion of National Unity and Reconciliation Act and that it is not only uncontroverted, but abundantly clear that the testimony of both the applicants supports the political objective, the preponderance thereof is also evident from the papers before us, the aspect of full disclosure is neither contested, nor questioned at any other level. Full disclosure has indeed been made by both the applicants and the level of proportionality has also not been contested.

&#9;My respectful submission is that given the nature of the issues of the day, the ongoing strife, the political strife, the acts perpetrated by the first applicant in both his capacity first as a person, secondly as a leader in the issuing of instructions, had been indeed proportional to the events of the day, had been fully political and they have both made full disclosure.

&#9;There seems little purpose for me to traverse the other aspects of the sections particularly (ii), (iii) and (iv). It seems to me abundantly clear that these two applicants have made out a case for amnesty. 

&#9;I submit respectfully that their applications ought to be granted. Thank you.

CHAIRPERSON: Thank you.

JUDGE DE JAGER: Mr Dehal, there's only one thing. I've asked - you're applying for amnesty in the respects of those incidents on the 25th of March, is that correct?

MR DEHAL: That is correct, but it seems as though in his statement, the first applicant deals also with incidents on the 1st of January, the 10th of February and the 11th of February and ...(intervention)

JUDGE DE JAGER: Well, that's what's troubling me and that's why I asked are you asking for amnesty for those incidents too?

MR DEHAL: Indeed, but that would be covered in the amnesty application within the context of the general words used meaning other incidents and other persons. You see the difficulty I have is that this applicant formulated this application whilst in custody without any of the papers before him and constrained by those limitations, he was forced to record general statements in this application.

CHAIRPERSON: Are the names given in the application form of the victims, the people who were murdered? Are those the people in respect of whom he was in fact convicted in the trial?

MR DEHAL: Those would be only some of them, yes. So it would be ...(intervention)

CHAIRPERSON: When you say some of them, those are the only people in respect of whom he was convicted.

MR DEHAL: I see on page 3, Mr Chairperson, he refers to four names.

CHAIRPERSON: Yes.

MR DEHAL: As I recall it, he was convicted of the murder of three of those persons. Thulani Gumede I looked for and I couldn't find in his record when late last night I read through it, but I think he was convicted of those three and another whose name I haven't managed to establish.

JUDGE DE JAGER: You haven't got a copy of the indictment, perhaps?

MR DEHAL: Unfortunately, no.

JUDGE DE JAGER: Thank you.

CHAIRPERSON: I understand that it had not been possible to obtain this because the recording has been destroyed, or the tapes have been destroyed.

MR DEHAL: Indeed. As is evident from that page of the Secretarial Services letter, which is contained in the bundle, I forget what page that is.

CHAIRPERSON: Yes, I've seen that.

MR DEHAL: Yes.

CHAIRPERSON: Alright. Mr Harkoo, is there anything you wish to say at this stage?

MR HARKOO: I will leave the matter in the hands of the Committee members.

NO ARGUMENT BY MR HARKOO

CHAIRPERSON: Thank you. Have you anything to say?

MR MAPOMA: I have no submissions Chairperson.

NO ARGUMENT BY MR MAPOMA

CHAIRPERSON: The Committee has heard the evidence on behalf of the applicants and in due course it will consider that evidence and make its decision known. However, because of the general background against which these offences were committed, it might be appropriate for the applicants to be afforded an opportunity when the Committee adjourns to meet with those dependants of the victims who are present here and attempt at reconciling themselves to those people and ask them for their forgiveness. Judging from the evidence of the applicant, he had taken the trouble himself to encourage dependants of IFP victims to fill in applications for the Reparations Committee. This is the first time we are confronted with that kind of attitude by an applicant who belonged to the ANC, who has gone around encouraging members of the other side, his erstwhile enemies or opponents, to take the necessary steps to apply to the TRC for rehabilitation. That's an indication that the time is very ripe for bringing about reconciliation and we'll now adjourn this hearing and we'll be please if the two applicants take advantage, if they haven't already done so, of meeting with and seeking reconciliation from those who are here from the other side. The Committee will now adjourn.

MR DEHAL: Thank you Chair.

COMMITTEE ADJOURNS WITH JUDGE MALL AS CHAIRPERSON

NAME:&#9;N E NYAWUZA

APPLICATION NO: AM7807/97

--------------------------------------------------------------------------ON RESUMPTION WITH JUDGE WILSON AS CHAIRPERSON

CHAIRPERSON: There are two matters which had been adjourned to now and I propose to deal firstly with the Nyawuza matter. We have been informed that not only is Mr Nyawuza present at this hearing - sorry, not only Mr Nkosinati Emanuel Nyawuza present, but his father Mr Elija Nyawuza is present and as are Mr Meyiwa and Mr Ndimande, all of whom are apparently interested in applying for amnesty in respect of the killing of Mr Ndebela. It is Ndebela isn't it?

&#9;We have, as I have said, before us the hearing of Mr Nkosinati Emanuel Nyawuza and in the bundle of papers put before us, is an affidavit made by Mr Elija Nyawuza in which he states and I quote now from paragraph 6:

&#9;&#9;"I strongly believe now that this activity was not political because I learned later that the victim, Lembede, was not involved in any political organisation, although I was an ANC member. On that note I wish to withdraw my application for amnesty, because I have already served some term of imprisonment."

F I N D I N G

&#9;Now we are told today that Mr Elija Nyawuza wishes to continue with his application for amnesty and has indicated that he was misled into arriving at the conclusion that he said he did in his affidavit. If this is so, we are of the view that he should be given the opportunity of seeking legal advice and of preparing a fresh affidavit in the nature of an application to ensure that his application for amnesty is reinstated and that it is heard at the same time as the adjourned hearing of today's application. The next matter is Mr Meyiwa. 

NAME:&#9;F E MEYIWA

APPLICATION NO:&#9;AM4505/96

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

CHAIRPERSON: In his case we have been given notification in the form of letters written and a decision from the Amnesty Committee that his application for amnesty was refused on the basis that the act that he committed, did not relate to acts associated with a political objective. He was notified of this decision in writing on the 31st of March of last year. We have not been given the complete papers in his matter. We have been given his application in Zulu and a very brief handwritten, two page summary, sorry - three page summary, apparently made by him in which he indicates that he was a member of the SACP and that the killing was done as a result of the violence in the area and that the deceased in that case participated in the violence. 

&#9;F I N D I N G 

&#9;We do not know if this matter was part of the papers that were submitted to the earlier Committee, but what does appear to us is that the decision was not signed by a Judge, and I understand that an opinion has now been obtained by the Committee, to the effect that if that provision of the Act has not been complied with, the decision is of no substance. This is a matter which should also be investigated and Mr Meyiwa should be given the opportunity to seek legal advice in this regard and if such advice supports the view I have indicated, his application should also be heard - set down for hearing at the adjourned date.

NAME:&#9;MR NDIMANDE

--------------------------------------------------------------------------CHAIRPERSON: The last matter is that of Mr Ndimande. All we have in regard to him is an extract from the records of the Committee dated the 16th of February 2000 which states under notes and I quote:

&#9;&#9;"Letter and form sent. Application form incomplete. 16/5/1997. DP note. No amnesty implication form. Incomplete application."

That is the end of the quotes. 

&#9;F I N D I N G 

&#9;It would appear from this that an application of some form, was registered with the Committee prior to the 16th of May 1997. We have no copy of that application nor of the letter sent to Mr Ndimande, nor is there any proof before us as to whether he received any such notification or not. If he was incarcerated in Westville Prison or one of the other prisons at the time, it appears to us probable that records of mail sent and received, would or should have been kept. Once again, this is by no means certain. 

&#9;It accordingly appears to us to be reasonable to afford him the opportunity of seeking legal advice and if necessary, completing a fresh application form and filing an affidavit, setting out the reason for the fresh form having been completed, confirming that he had sent a previous form within the - before the cut-off date and setting out any other information you wishes to bring to the attention of the Committee.

&#9;&#9;I must stress that we are not making a finding that all the latter three people are entitled to have their amnesty applications heard. What we are doing is endeavouring to make arrangements or to ensure that arrangements are made that at the adjourned hearing, the Committee which hears the matter then, will be in possession of all information which will assist them in arriving at a balanced and careful decision and it will be for them to decide whether the applications should be heard. 

&#9;We accordingly adjourn this matter, subject to anything that any of the legal advisors may wish to say at this stage or to add to what I have said. Do either of you gentlemen wish to add anything?

MR PANDAY: No Mr Chairman, I accept that.

MR MAPOMA: Nothing Mr Chairperson, thanks.

CHAIRPERSON: We accordingly adjourn the matter to a date to be arranged and we request those responsible for making such arrangements, to ensure that the three applicants who are at present not represented, be given the opportunity of taking legal advice and preparing any documents that should be presented to the Committee.

&#9;In this regard I must stress that in Mr Ndimande's case it appears that there is no application form filled out by him nor any copy of such a form available at the moment, so he should make sure that this is done in addition to anything else. 

&#9;Do the gentlemen concerned understand what has happened? Do any of them wish to say anything?

&#9;Right, there being no reply, this matter is now adjourned to a date to be arranged. 

&#9;Somebody did seem to want to say something.

MR MEYIWA: I would like to say I do want to proceed with my application of amnesty. Frans Meyiwa. I'm requesting that my application for amnesty should proceed.

MR NDIMANDE: Myself as well - my name is Frederik Ndimande, I also request that my application should proceed, the reason being that I did complete application forms for amnesty and if I do remember, I was with someone else who didn't receive any reply as well, but we were confused. Unfortunately he is not here today.

CHAIRPERSON: Wait a moment. As I have said, our intention is that arrangements will be made for all of you to have the opportunity to make representations and to appear before a Committee when the matter is set down for hearing again. We do not have the necessary documentation, the papers, to consider your applications today. We just haven't got them, but we are making arrangements that your applications will be set down for a further hearing and you will be given the opportunity to seek legal advice before then.

MR NDIMANDE: Thank you.

MR NYAWUZA: My name is Elai Nyawuza. I would like to ask where can I get an attorney?

CHAIRPERSON: The Amnesty Committee will make some arrangements in that regard. 

&#9;I do not think it proper in the light of the possible conflict, to request the attorney appearing for your son, to appear for you at the present time, so I think you should have your own attorney to advise you.

MR NYAWUZA: Thank you.

MACHINE SWITCHED OFF

CHAIRPERSON: Right. Thank you gentlemen. I would request that my remarks be transcribed, that a copy be sent immediately to the office in Cape Town with the request that Martin Coetzee takes all necessary steps to comply with our request and that it be made available to the Committee which hears the subsequent proceedings. 

&#9;Right, that completes for the moment the Nyawuza application. We now revert to Mr Mafu's application.

NAME:&#9;MAFANDO JOKONIA MAFU - (CONT)

APPLICATION NO: AM7921/97

-------------------------------------------------------------------------- CHAIRPERSON: Since the matter was adjourned, we have received a number of documents. When I say we, I mean I and in most cases the legal representatives. I propose to discard those documents now and to put them onto the list of exhibits. We already have A and B. The next document which I think we should mark C, is an application form for amnesty in Zulu. It is, we are told, the Zulu version of the English translation which appears on page 11 of the bundle. 

&#9;We have also received a third amnesty application, apparently written in the handwriting of the applicant, dated the 20th of June 1996, which I will mark as D. 

&#9;We have also received - sorry, I have missed out one - an English translation of the Zulu application at page 1 of the bundle which I will mark E. 

&#9;We have received three letters written by the applicant, the first one dated the 17th of October 1996, which I will mark as F. The second one dated the 29th of October 1996, G, and the third one marked the 26th of March 1997, which I will mark as H. 

&#9;I understand, Gentlemen, that you have not received a copy of the Zulu translation, C. Is that so?

MR DEHAL: That is correct, Judge. With your liberty, I borrowed your copy and made myself a copy.

CHAIRPERSON: What is your attitude towards proceeding with this matter now?

MR DEHAL ADDRESSES: Mr Chairperson, I have taken instructions on all of these annexures. I am ready to proceed. May I just outline what the instructions are, relative to each of these annexures, briefly. 

&#9;Firstly, I will not deal with Annexure E because it is purely a translation of the Zulu on page 1 of the bundle. Page 1 of the bundle consists of an application which the applicant concedes is his application for amnesty, but for the signature thereon. The handwriting on pages 1 to 7, sorry 1 to 9 of the bundle, is indeed his handwriting, that the application contained therein is in fact his application. He cannot recall why he did not sign it, but the signature thereon is not his. That's the only reservation he has on that application.

&#9;So going to Annexure E, I have no problems with Annexure E, that being the English translation of the Zulu application for amnesty in the bundle, page 1 onwards.

&#9;May I deal with the other annexures?

CHAIRPERSON: Yes.

MR DEHAL: E is the interpretation of page 1, the application on page 1 of the bundle. I have not checked with the applicant expressly, word for word, whether the English interpretation is correct, having regard to the Zulu.

&#9;That, Chair, leads me to the remaining annexures. Annexure C which is the Zulu version of the English translation on page 11 of the bundle, the applicant says is not his application. He says it's not even his signature at the back hereof. As to Annexure D - shall I pause for a while, Chair?

CHAIRPERSON: Can you wait for one moment? I have just got to go and get a pad.

MR DEHAL: Shall I mark yours for you?

JUDGE DE JAGER: Yes, I've asked for copies of C and E, because I haven't got copies with me at the moment.

MR PANDAY: Chairman, I don't have copies of C. 

MR DEHAL: Shall we wait until we all have copies?

CHAIRPERSON: Right.

MR DEHAL: Thank you. Chair, then the position is briefly, with Annexure E we have no problems except that I have not checked with the applicant word for word whether it's a detailed correct translation, but we have no difficulty with that being what's presented as a translation of the Zulu aspect. 

&#9;With Annexure C, I have mentioned that the applicant says - and this is the Zulu version of the English translation on page 11 onwards, that this is not his application, it's not his signature thereon.

JUDGE DE JAGER: So that would be pages 11 up to ...(intervention)

MR DEHAL: No, sorry, it's not a part of the bundle. This is that additional application which is the Zulu version of the English translation. The English translation being on page 11 of the bundle.

JUDGE DE JAGER: Ja, the English translation is on page 11 up to page 16, 17?

MR DEHAL: Oh sorry. The index should tell you. 11 to 17.

JUDGE DE JAGER: Ja. Now if C, if this is a translation of C, am I correct?

MR DEHAL: Yes. Well, I haven't checked but that's the level at which its premised.

JUDGE DE JAGER: And if C is not his application then 11 up to 17 wouldn't be his application, or a translation of his application either?

MR DEHAL: That follows, correct.

JUDGE DE JAGER: So that should, subject to argument, be excluded from the bundle because it wouldn't relate to him at all?

MR DEHAL: Indeed. Correct.

JUDGE DE JAGER: I must point out that I find it rather strange that the facts referred to in many respects, are facts related to this incident.

MR DEHAL: Well, I also find that strange. In fact it becomes increasingly strange as you deal with the remaining annexures.

JUDGE DE JAGER: Alright.

MR DEHAL: That takes me to Annexure D. This is a further application, or purported application for amnesty. This is an application for amnesty in English and one that appears to be dated 20th June 1996. The applicant says that this is not his application.

CHAIRPERSON: Not?

MR DEHAL: No, this is not his application. In fact if you look at the handwriting, it is also substantially different from anything that comes near his. I only mention this Chair because when you dealt with the annexures, you said which appears to be - which is alleged to be the applicant's handwriting and the writing of his name and the signature, slants in the opposite direction from his. He's a right-handed person, all his signatures on those annexures that I've handed in, Exhibit A, slant to the right. This is a signature slanting to the left.

JUDGE DE JAGER: The handwriting itself in the body of Exhibit D, isn't that his handwriting?

MR DEHAL: No. Nothing in this application relates to him, he says.

JUDGE DE JAGER: Because that seems prima facie to correspond with the handwriting on some of the letters.

MR DEHAL: Well, that's unfortunately not my view, with respect, but you will hear that even if that view be correct, it will become immaterial once you've heard what my instructions are on the letters.

JUDGE DE JAGER: Right.

MR DEHAL: You see that what's - at that level alone if one compares the letters and finds them similar, you'll find that the writing on this application, Annexure D, slants to the left as though it were a left-handed person's writing, whereas the writing on the letters slants in the opposite direction.

JUDGE DE JAGER: And is it also his contention that nobody else wrote letters on his instructions or completed application forms on his ...?

MR DEHAL: That's an interesting question. In fact the version there is, I hope I'm saying it correctly, that no other application apart from the application in the bundle, page 1 to page 10, was ever made by him directly or to any other person. So effectively, either by him directly or no person acting on his behalf ever did an application for him, duly authorised by him.

CHAIRPERSON: And the letters, are you coming - or does he accept the letters?

MR DEHAL: No, he does not Judge. F, G and H - sorry, I'm having some problems with my earphones, do you mind bearing with me?

&#9;Thank you. Anyway - sorry, thank's for bearing with me. The version, Annexures F, G and H, is that this is not his letter, he had not recorded this letter and there are three things to note in this regard.

JUDGE DE JAGER: Well, the different letters, it's three separate letters.

MR DEHAL: There are three separate letters.

JUDGE DE JAGER: And none of them ...(intervention)

MR DEHAL: None of them are his. He says he never writes in English, which is the reason why the application for amnesty contained on pages 1 to 10, is actually in Zulu. And the second thing he says is that - Mr de Jager, you raised this earlier, he did cause a letter to be written in English on his behalf, but that was only on one occasion prior to his application for amnesty, as for pages 1 - 10 of the bundle being handed in, being completed and signed by him. He says that letter was done by another person at the prison on his behalf as he spoke in Zulu and that person wrote in English, calling for an application for amnesty to be sent to him, an application form that must be in the Zulu language. Now if you look at Application for Amnesty, pages 1 - 10 of the bundle, you will see that its a Zulu application form, the content is also in the Zulu language, in addition to the details handwritten therein by the applicant.

CHAIRPERSON: So the applicant says these letters are forgeries and must, if they were sent from the prisons, be sent by someone there with a view to implicating him?

MR DEHAL: Yes, he's got some versions to explain these, but I think that's lengthy and he'd rather say it.

CHAIRPERSON: Well, it might be necessary to get some expert opinion on this. He wrote the first one, page 1?

MR DEHAL: Of the bundle, indeed.

CHAIRPERSON: Of the bundle, yes.

MR DEHAL: Yes.

JUDGE DE JAGER: The signature appearing on Exhibit B, no that's alright, that's ...(indistinct - microphone not on) signature.

MR DEHAL: Yes.

MR SIBANYONI: Does your client know who is this person who was writing all these letters, purporting to be him?

MR DEHAL: No, he doesn't know, in fact he can only surmise and he tells me on instructions that there are persons within the ambit of the prison who are opposed to him politically and have expressed to him the wish that he should not be granted amnesty, persons who are privy to the knowledge personal to him as to his details, namely his prison numbers, board numbers, ID numbers, etc. 

&#9;He says he never writes English, which is why his application is in Zulu. He doesn't speak English but for a little bit of understanding of it. He is also concerned actually about the pages in the bundle, the English translation pages 11 to 17 and especially the content thereof for he says somebody is mischief-making and has a bent design to go against his application.

JUDGE DE JAGER: Am I correct in saying that his application would then be pages 1 up to 10 of the bundle?

MR DEHAL: Correct, and ...(intervention)

JUDGE DE JAGER: And the translation thereof, being Exhibit E?

MR DEHAL: Correct.

JUDGE DE JAGER: And are there any other documents in the bundle, the bundle of the hearing which could be regarded according to him from his point of view, as fraudulent documents that should be ignored or could we pay attention to the rest of the bundle?

MR DEHAL: Well to answer the question, unfortunately I have not taken instructions on the bundle itself, pertinent to the enquiry on whether it is fraudulent or pertinent to his application, but I perhaps can ease the position by saying this. I have taken instructions from him for the purpose of this application for amnesty on the bundle itself before these Exhibits A - E surfaced, and he's had no difficulty with them, except for the English translation contained on pages 11 to 17. So subject to him confirming it, I can say that he's not told me that he's had any difficulties with it.

CHAIRPERSON: Do you know when he was sent to Westville Prison?

MR DEHAL: Sorry Chair, I don't have that detail, but I could always seek that from him.

CHAIRPERSON: Or we could get that - I suppose the prison's department must have that. Right are we ready to go on, or what's the position?

MR PANDAY ADDRESSES: Mr Chairman, we've also been burdened with a lump sum of documents now and I believe that the only person that may be possible to assist us at this stage in terms of how these documents got to this stage, or into the application of the applicant, would be that of the Investigator. 

&#9;Mr Chairman, in the circumstances, I think it would be only fair that if one could have a quick word with the Investigator in this matter and maybe she should give us some direction as to the ascertainment of these documents into the bundle or into the file. It is quite obvious that this matter has been put on file. It is quite obvious that these documents have been brought under the same amnesty number, I would presume, and to accept it on the face of it at this stage that the applicant then merely denied the origins of the documents by virtue of the fact that most of the documents seem to be contrary to his version, I therefore believe that one would need to at least consult with the Investigator for them to at least give us some direction as to how these documents did arrive in the file and whether they did have sight of this prior to this because it would seem very farfetched for one to obtain the ID number, for one to obtain the - well almost the entire facts of what really took place on the day in question, to also obtain the amnesty number for the documents to arise out of the same application and to merely go on at this stage without having some direction from the Investigator or input from the Investigator, at this stage would be detrimental to the victim's case, Mr Chairman. &#9;It is for these reasons I submit that I'm not in a position to readily just proceed without having some direction from the Investigator as to how these documents have originated. And more importantly, Mr Chairman, there are letters, Exhibits H, G and F. It is quite clear that these letters have originated out of the prison and it is to my understanding, in prison there's always a record kept of outgoing letters by the prisoners as well as incoming mail to them and as such, maybe one would have to briefly contact the prison to merely confirm if letters were ever sent out by the applicant himself, Mr Chairman.

&#9;I don't know if my learned friend, the Evidence Leader, has any input in this matter, Mr Chairman.

MR MAPOMA ADDRESSES: Thank you, Chairperson.

&#9;Chairperson, perhaps I will be in a position to explain insofar as how these documents came into being. These documents actually, which have been Exhibit C, E, F, G, H, are documents which have been discovered from the Cape Town office, the Amnesty Committee office. In fact they are not dealt with or received by the Investigator. These documents are in Cape Town office. They were addressed to the Cape Town office and a file was opened for them. 

&#9;I have been advised by the Evidence Analyst, who was preparing this bundle of documents, that these documents were erroneously in a separate file, apart from the file number 7921/97, which file apparently was a duplicate file opened for the applicant and it is out of that file that these documents have been discovered and sent to the Committee. The Investigator only received these documents as well today. She has not been in possession of these documents as well, so I am of - I submit that she won't be able to take the matter any further in the circumstances.

&#9;I gather, Chairperson, from the applicant's legal representative, that he disowns Exhibit C, D,F,G and H and seeks this Committee to disregard those documents. I object to that Chairperson. These are the documents which have been received by the Amnesty Committee and contained in the records of the Amnesty Committee for the purposes of this application. The fact that they were inadvertently not in the file which was used for preparation of this bundle does not make these documents not to be the documents received from the applicant to the Amnesty Committee, as far as the Amnesty Committee is concerned, and they are the documents of and concerning the applicant's application. 

&#9;I notice, Chairperson, that the applicant disowns in particular Exhibit C on the basis that the signature is not his, but the very same applicant claims the application which appears on page 1 of the bundle onwards to be his, yet he disowns the signature. &#9;Chairperson, it is my submission that the applicant cannot be heard to be denying the application simply because of the signature, whereas he can claim the application with the signature which is not his. It is my submission therefore Chairperson that these documents ought to be considered in dealing with this matter. Thank you.

JUDGE DE JAGER: If the signature on page 9 is not his and it's the only application that we've got, what would the position then be? Would we have a valid application before us?

MR MAPOMA: Sir, the matter would be determined by the explanation that is given by the applicant as to why a signature which is not his, came to be in this application, if he owns the signature in one way or another

JUDGE DE JAGER: Is there any explanation why he forwarded a fraudulent application to us, not bearing his signature, but somebody else's signature?

MR DEHAL: With respect Mr de Jager, that's premised on the basis that at the time he forwarded it, it had that signature which is not his. What he says, of course, is different. What he says is that he completed pages 1 to 10 in the Zulu language after he received the Zulu application form. There was no signature on it when he forwarded it.

JUDGE DE JAGER: No.

MR DEHAL: He had forgotten to sign.

JUDGE DE JAGER: The trouble is, at the bottom, after he'd written the last word, there stands written in Zulu that it requires his signature.

MR DEHAL: Yes.

JUDGE DE JAGER: And now it's been signed, but it's not signed by him.

MR DEHAL: Correct.

JUDGE DE JAGER: On completing the form in his own language, didn't he understand that he should sign it?

MR DEHAL: I asked him the same question and his response to me was, if I recall it correctly, he doesn't know why he didn't sign it, but he knows that he didn't sign it.

CHAIRPERSON: So the statement by the Commissioner of Oaths is false?

MR DEHAL: It would follow, yes.

CHAIRPERSON: So if one discovered who that Commissioner of Oaths was, presumably ...

MR DEHAL: A ...(indistinct)

CHAIRPERSON: It would have been someone in the prisons department.

MR DEHAL: Yes. May I just clarify at this stage? I think the Evidence Leader has misunderstood my stance and is reading too much into it. My position and the applicant's position is simply this. There are documents now placed before us. Insofar as Exhibit C, D,F,G and H are concerned, yes, we say they are not ours. We can't be standing here and saying they are ours when they are not, but we are not saying you've got to expunge them from the record. It is crucial that these documents have come to be with the TRC. It is prudent to establish whose documents they are, what the source thereof is, and I think in the interest of justice, what you've said here about a handwriting expert or some form of expert being engaged is correct and perhaps at this stage what we should do is establish how we should go ahead in establishing the source, authenticity, writings etc of these other disputed annexures are and then adjourn at this stage to traverse those exploratory lines.

MR PANDAY: Sorry, Mr Chair. If I may just add? I may stand to be corrected but if I do recall the evidence of the applicant, when being led insofar as his application on page 1 to 10 was concerned, what the applicant did say is that he had not signed that document, but merely confirmed the correctness of the document, thereby implying that he had not written it. Now today it's been led that the applicant has actually written or wrote out his application in pages 1 to 10 but has not signed it.

MR DEHAL: No, no, no there's no contradiction there. What my learned colleague is doing is by error looking at one line of evidence at the beginning when it was evidence-in-chief. It was dealt with subsequently on two or three occasions. I think you, Mr Chair, or was it Mr de Jager asked the applicant directly some questions about the application, whether he disputed the signature and then there was a subsequent occasion when you as the Chairperson misunderstood that the applicant disavowed pages 1 to 10 as being his application, but rather the interpretation of pages 11 and 17 as being his application. At that stage then clarity was sought from the applicant and he said no, no, pages 1 to 10 is my handwriting, that's what I completed, I had forgotten to sign it but pages 11 - 17 I have difficulty with. &#9;Then followed some discussion between Mr de Jager and you Mr Chairperson, to this effect - you understood him as saying pages 11 - 17 are not his, Mr de Jager then corrected you and said no, he has problems with that one paragraph contained in one of those pages, I don't remember the page. 

CHAIRPERSON: 14.

MR DEHAL: Yes, page 14. And then we sought clarity from the applicant and he said, to the extent that he has problems with the interpretation, he has not looked at the balance of the interpretation, he therefore does not go by those pages 11 - 17. 

&#9;Then followed the enquiry on where that interpretation came from and then we sought an English translation and following upon the English translation, a dearth of how the information and documents came to be.

CHAIRPERSON: ...(inaudible)

MR DEHAL: Sorry Sir, I think your speaker was not on, so it's not been interpreted and he's still waiting.

MACHINE SWITCHED OFF - NO RECORDING MAFANDO JOKONIA MAFU: (s.u.o.)

CHAIRPERSON: Will you please write out your full name and then the next line or couple of lines down will you please write out the name of the first prison you were sent to after your conviction and the date when you were sent there, as far as you can remember. Right. 

&#9;The next prison you were sent to and the date you were sent there. Do you understand what I'm asking you? I want to know which prison you went to immediately after your conviction, then if you were changed, what was the next prison you went to? Now were you sent to any other prison after that?

MR MAFU: There's quite a number of prisons which I was sent to.

CHAIRPERSON: Well which are the ones? Write them down please in the order in which you went there. Have you written them all down now?

MR MAFU: Yes, but the last three, I don't remember the dates.

CHAIRPERSON: Can you give me back that paper then now?

What has been written here is the name Mfanlo, M-f-a-n-l-o Mafu Joconia, J-o-c-o-n-i-a, then Umzinto June 14 1991, Westville June 14 1991, Pretoria, spelled P-r-i-t-o-r-i-a, Marriburg, M-a-r-r-i-b-u-r-g and then Income.

INTERPRETER: It's Encome in Zulu, not Income, Encome prison.

CHAIRPERSON: Are you not in Westville Prison at the moment?

MR MAFU: I'm in Westville at the moment.

JUDGE DE JAGER: And weren't you in Pietermaritzburg New Prison? 

MR MAFU: I've been there.

JUDGE DE JAGER: When were you there?

MR MAFU: In 1994, after I had been transferred from Pretoria Prison.

MR PANDAY: Sorry Mr Chairman, is that not referred to as Marriburg? Is that the same prison as Maritzburg, if you could confirm that?

CHAIRPERSON: As what?

MR PANDAY: The list of prisons you have there, Marriburg, is that the same prison as Pietermaritzburg? Can he just confirm that?

MR MAFU: Yes, I meant Maritzburg.

CHAIRPERSON: Is it correct that when you are in prison, if you want to send any mail, you have to do it through the prison authorities?

MR MAFU: Yes, you give the letter to the prison warder and then they will send it to wherever you want to send the letter.

JUDGE DE JAGER: And they also forwarded your application? You handed it to the prison warder and they forwarded your application to the TRC, is that correct?

MR MAFU: Yes, I gave it to an Indian guy who brought the forms in Pietermaritzburg prison.

JUDGE DE JAGER: Can you remember his name?

MR MAFU: No, I do not remember his name.

JUDGE DE JAGER: Can you remember any of the warders that you've given letters to while you were in jail, to post it for you?

MR MAFU: I don't quite follow, whether you are referring to an ordinary letter or a specific?

JUDGE DE JAGER: Ja, ordinary letters.

MR MAFU: It is difficult for me to remember because I've been to quite a number of prisons and usually I used to give to different prison warders to send letters home for me.

JUDGE DE JAGER: No, I quite agree with that but can't you remember the name of a single one? One that's been kind to you and trying to be helpful or one who wasn't so kind and you remember him because you didn't like him?

MR MAFU: Prison warders are the same. You would give your letter to whoever came to work that day.

JUDGE DE JAGER: Ja, but you haven't answered my question still. Can you not remember a single name of any of the warders that took letters from you?

MR MAFU: I can remember now a recent event. I do remember that in Westville Prison I gave it to Makatini Dlamini and Steyn(?) and these are the recent letters that I've wrote in Westville prison. 

CHAIRPERSON: We are having enquiries made with a view to attempting to ascertain dates of receipt and matters of that nature. I think we will have to adjourn this matter now till tomorrow. I don't want to keep everybody hanging around, particularly those who have to be taken back elsewhere. What time tomorrow? 9.30. We have this other matter set down for tomorrow too. I propose to make a - I don't propose, I propose to have photostat copies made of what the applicant wrote down. It will be Exhibit J and I'll make them available tomorrow morning. I take it none of you - if you want to have a look at them now you are at liberty to do so.

MR PANDAY: Sorry, Mr Chairman, before we just adjourn, could I just enquire from the applicant if he's ever written any letters to the TRC?

CHAIRPERSON: Certainly.

&#9;Did you hear that question?

MR MAFU: Yes, I did. The only letter which I wrote to the TRC is the one that appears in the bundle from page 1 to 10. I don't remember any other matter, in fact let me just say, I never wrote another letter. Another letter which I know is that I requested another prisoner to write a letter to the TRC for me in order to apply and after that I received the application form.

MR PANDAY: And did you write any letter to the Minister of Justice?

MR MAFU: Somebody helped me to write a letter to the Minister of Justice, because we were sentenced, we were given a death penalty in fact and so my attorney is the one who wrote a letter to the Minister of Justice. It wasn't myself. 

MR PANDAY: Thank you.

MR DEHAL: And for clarity, I wasn't his attorney at the time.

MR SIBANYONI: Did you write letters to your family when you were in prison?

MR MAFU: Yes, there are letters that I do write and send them home. Even with this event, I did write them to let them know that I was going to appear before the Truth Commission.

MR SIBANYONI: Were you restricted in connection with the numbers of the letters you would write within a month or so? Was there any limit?

MR MAFU: No, there is no restriction at all. You can write as many letters as you want and you can send them anywhere you want to send them. There isn't any restriction whatsoever.

MR SIBANYONI: Now you say you will give the letter to a prison warder. Will the prison warder just take that letter to wherever it is or there is an office where the letters would be registered and posted out? Do you know that, maybe?

MR MAFU: I wouldn't know when it comes to that because what happens that in the morning when we are counted or when they check us, that's when we give the prison warder a letter, if you have a letter and then they will close the gates and then later they will come after we give him whatever we needed to give him to mail.

JUDGE DE JAGER: So you've applied for amnesty, you've sent your form in November 1996, is that correct?

MR MAFU: Yes, it was in 1996.

JUDGE DE JAGER: Have you received any letters or acknowledgement that the TRC, that they received your application?

MR MAFU: Yes, a form, a certain form was sent to me and it was written in English, but then I didn't fill it in. Another inmate helped me and he's the one who interpreted that form to me and told me that this form was just an acknowledgement that they had received my letter.

JUDGE DE JAGER: And did he fill in a form on your behalf then, this English form?

MR MAFU: Yes, he did.

JUDGE DE JAGER: Was it a long form?

MR MAFU: It was a three page form but I was only needed to fill in four sentences in a certain paragraph. There were just four questions.

JUDGE DE JAGER: Alright and who was this prisoner who assisted you?

MR MAFU: Nhlanhla.

JUDGE DE JAGER: Nhlanhla. In which prison was that at that stage?

MR MAFU: He is with us in Westville.

JUDGE DE JAGER: Is he still there?

MR MAFU: Yes, he is still there.

JUDGE DE JAGER: And how long ago was this?

MR MAFU: In 1998, I don't remember the month or the date.

JUDGE DE JAGER: Were you not worried when you heard nothing when this matter would be coming up for a hearing? Didn't you enquire, "Listen, when are you placing the matter on the role for hearing?"

MR MAFU: No, I didn't because in that prison there was no one from the Truth Commission. The only thing which we received were the forms and there was no one from the TRC in the prison for me to ask.

JUDGE DE JAGER: So you couldn't write a letter to the TRC?

MR MAFU: No, I didn't, I only fill in the forms.

CHAIRPERSON: 9.30 tomorrow morning.

MR MAFU: Thank you.

CHAIRPERSON: I think after our other experiences, 9.30 is safer.

COMMITTEE ADJOURNS

