=====================================================================
DATE:&#9;25TH MAY 2000
=====================================================================
 DATE:&#9;&#9;&#9;25TH MAY 2000

NAME:&#9;&#9;&#9;NKOSINATI EMANUEL NYAWUZA

APPLICATION NO:&#9;AM7807/97

MATTER: &#9;&#9;MURDER OF MR LEMBEDE

DAY:&#9;&#9;&#9;&#9;4

--------------------------------------------------------------------------CHAIRPERSON: ... Nyawuza and others. The Committee remains the same. Would the legal advisers please place themselves on record?

MR PANDAY: Thank you Mr Chairman. The name is Mr Panday, initial S. I appear for Nkosinati Emanuel Nyawuza.

MR DEHAL: Mr Chairperson, Honourable Members, the name is Dehal, from Dehal incorporated. I'm assisted here by my assistant, Ms Fatima Mohammed and we represent the second, third and fourth applicants, namely Elijah Nyawuza, Meyiwa and Ndimande. Thank you.

MS REDDY: Mr Chairperson, Members of the Committee, I'm Ms G Reddy and I represent the victims of the deceased.

MS THABETHE: Thank you Mr Chair. I'm Ms Thabile Thabethe, the Evidence Leader.

MR PANDAY: Mr Chairman may I call somebody who's ...

CHAIRPERSON: No, I think we must deal with the matter of the others which were referred, I think it's the correct way, to this Hearing. Let's first deal with Mr Elijah Nyawuza.

MR DEHAL: Thank you. Mr Chairperson, I presume you're referring to the applications that were intended and I'll address you now on the applications to be brought, relating to whether their applications ought in the first place to be heard or not. 

&#9;Insofar as the second applicant Mr Elijah Nyawuza is concerned, he is the father of the first applicant, Nkosinati. Mr Chairperson he says that when indeed he withdrew the application, he was motivated by reasons pursuant to a visit to him whilst he was in prison, by two members of the TRC and which two members have apparently since also filed their affidavit. Mr Chairperson, I just refer you briefly to the affidavit of one of those persons which, in paragraph 4, confirms that there was such a visit. I'm hearing referring to the affidavit of Joshua Sikumbuso Cele, I see it's not in the bundle, but has been provided to me loose and cross-referenced is the affidavit of S. Sheila Mkhize. &#9;Now reading particularly from paragraph 4 and 5 of the affidavit of Cele, read in conjunction with paragraph 2.3 of the affidavit of Mkhize, you will see what is common cause is that indeed such a meeting did take place, indeed the incident for which this applicant seeks amnesty, was discussed. More importantly that these two persons who visited Elijah Nyawuza, the applicant, were privy to a knowledge - were privy to the events and a knowledge of how this incident occurred, prior to their visiting the applicant.

CHAIRPERSON: Well, that's not correct, is it? At least, on my reading is, the position is that one of the persons had been a member of the police force, had been part of the unit that investigated the incident and he was aware of it. It seems from Mrs or Miss Mkhize's affidavit, she only learned of this when he intervened and said, at paragraph 2.3:

&#9;&#9;"As the matter had occurred while he was working at Isipingo, he further asked the applicant who is telling you the truth. After they had a conversation, the applicant turned to me and asked to withdraw."

It would appear that she was talking or questioning the applicant and that this other person intervened with his personal knowledge of the events, prior knowledge and that that in some way influenced the applicant.

MR DEHAL: I concur. Sorry, I apologise for that. It's Cele that was a part of the detective police.

CHAIRPERSON: Yes.

MR DEHAL: Yes, Mr Chairperson, the other submission I wanted to make is simply this. It is also true that the withdrawal of the application was pursuant to this interview and that the probabilities that appeared to favour the conclusion inescapably that the withdrawal may well have been in some way or the other influenced by this discussion and to that extent I think it would be prudent to allow the applicant to have his application heard.

CHAIRPERSON: I think so ... The Committee agrees with you in that he made an application, he wants to continue with it and it seems possible there may have been a misunderstanding in this conversation.

MR DEHAL: I'm indebted to you. Mr Chairman, may I take you then to the second applicant, Meyiwa and the third Ndimande? May I just confer with my assistant? Bear with me. Thank you Sir.

&#9;Insofar as Meyiwa is concerned, he is the one who apparently had a decision handed down, albeit it unsigned, in respect to what appeared to be or what purported to be an application for amnesty. Unfortunately to the extent, as Your Lordship had correctly pointed out previously, to the extent that it is unsigned, little weight can be placed on it and more importantly there is a letter that this applicant had signed or written which has political content to it and one is at a loss to establish whether those who considered his original application, had regard to that letter.

CHAIRPERSON: Well isn't the position that a decision has to be signed by two people, one of whom must be a Judge and in this case that has not been done?

MR DEHAL: Correct.

CHAIRPERSON: Therefore the decision refusing his application is of no force and effect and he has an application which we are prepared to hear.

MR DEHAL: Absolutely. Thank you. And as regards the last applicant, Philbert Ndimande, the position there is crisply the following: An Indemnity Board had, on receipt of his application, adjourned that for a subsequent Amnesty Committee to consider. His matter is not finalised and it would be fit and proper, prudent and necessary to have his application heard.

CHAIRPERSON: It seems that, and this has happened in other matters that we have heard this week, that he was informed that the matter would be referred and there is no indication that anything was done after that. It may have been done, it may not, but it seems fairness demands that where the application says that he has not been given the opportunity up to now, we should allow him to file the amnesty application, not a late filing filed this year, but as a result of the indemnity application which was made...

MR DEHAL: On the 12th of October 1995.

CHAIRPERSON: Yes. And we are accordingly prepared to hear the application.

MR DEHAL: I'm indebted to you. Thank you Sir. Those are the submissions thus far. I think it will now be necessary for Mr Panday to proceed with his applicant first. Thank you.

NKOSINATI EMANUEL NYAWUZA: (sworn states)

EXAMINATION BY MR PANDAY: Mr Nyawuza is it correct that you appear before this Committee today applying for amnesty for the killing of Mr Lembede?

MR NYAWUZA: That's correct.

MR PANDAY: Is it also correct that you are at present serving a 15 year term of imprisonment for the said killing?

MR NYAWUZA: That's correct.

MR PANDAY: Thank you, Mr Chairman. Mr Nyawuza, I'm going to go through a few personal details with you. I'd like for you to respond accordingly. 

&#9;Mr Nyawuza at the time of the killing of Mr Lembede, where were you residing?

MR NYAWUZA: I resided in the Nzamane area.

MR PANDAY: And at the time, how old were you?

MR NYAWUZA: If I am not mistaken, I was about 21 or 22.

MR PANDAY: And at the time, were you employed or unemployed?

MR NYAWUZA: I was unemployed.

MR PANDAY: And did you belong to any political organisation at the time?

MR NYAWUZA: Yes, I was a follower of the ANC.

MR PANDAY: And when did you first join the ANC?

MR NYAWUZA: I became first aware of the ANC whilst I was still at school and started associating myself with the organisation when Mr Mandela was released in 1990, that is when I became an active follower of the ANC.

MR PANDAY: Now as an active follower of the ANC, was there an ANC branch in the area you resided?

MR NYAWUZA: Yes, there was.

MR PANDAY: And who was the leader of that branch?

MR NYAWUZA: It was Mr Mthambo.

MR PANDAY: Besides being a follower of the ANC, did you actively take part with any of the struggles of the ANC?

MR NYAWUZA: Yes, I would say at that time I was an activist, I was a prominent activist and because of the political conflict of the time, I was thus involved in that conflict.

MR PANDAY: Now when you refer to political conflict, are you referring to political conflict in your area, or the country as a whole?

MR NYAWUZA: The situation was tense in the entire country including where I resided, that is why I participated in the ANC within my area.

MR PANDAY: Now Mr Nyawuza, you said the political tension was such in your area as well, what sort of political problems were you experiencing in your area?

MR NYAWUZA: We had a problem with our political foes, which was the IFP, with whom we had serious conflict.

MR PANDAY: Now what sort of conflict was being experienced between the IFP and the ANC in the area?

MR NYAWUZA: We were involved in a war.

MR PANDAY: Now when Mr Lembede was killed, was his killing as a result of a political act?

MR NYAWUZA: Yes, it was politically motivated.

MR PANDAY: Now could you explain to the Commission as to how, or as to why you consider his killing a political killing?

MR NYAWUZA: At that time, we would camp in the evenings because we used to suffer attacks and also launch counter-attacks at Unit 17 in our lives. We were at such a camp when Mr Mthambo arrived. As I mentioned before, he was the Chairperson in the area. He was patrolling the camps as usual. After that Mr Mkhize, Ndimande and Mbambo, who was also known as Ernest Mahlane, arrived. They informed us that they were on their way to Mr Mthambo's home and they were fortunate to find Mr Mthambo at camp. Ndimande then informed Mr Mthambo that there was a matter that he had heard from Mbambo and Mr Mthambo asked him to explain what that was about.

&#9;Mbambo then informed us that there was someone, a business man from their area, Ngonyameni, a certain Mr Lembede, who was supporting the IFP by purchasing firearms for them. He went further to mention that some comrades had been attacked at Mr Lembede's shop. Mr Mthambo then asked just how far Mr Lembede's shop was from where we were and Mbambo responded that it was quite a distance, you could not travel there on foot, you would have to get a vehicle. Mthambo then went further to say that that situation will create a problem for us because Unit 17 and Ngonyameni were close, such that those weapons that were used in Ngonyameni could easily reach Unit 17, which would affect us badly. He then said that that person should be eliminated immediately. He then ordered myself, Ndimande, Mkhize and Meyiwa to go attack Mr Lembede on a Friday.

MR PANDAY: Now, Mr Nyawuza, before you continue, you talk about the other people that were ordered, you talk about Mr Meyiwa, Mr Ndimande and did you mention Elijah? No. have you mentioned Elijah? I can't recall that.

MR NYAWUZA: No, I have not as yet mentioned him.

MR PANDAY: Now with regards to Mr Ndimande and Meyiwa, were they also part of the ANC?

MR NYAWUZA: Yes, they were.

MR PANDAY: Now what sort of role did they play in the ANC?

MR NYAWUZA: They were active members of the ANC and were also with us when we protected the area.

MR PANDAY: And on the day in question when you went to attack Mr Lembede, how many of you all went to attack him?

MR NYAWUZA: There were five of us, the driver was the sixth person, which was Mr Nyawuza, my father.

MR PANDAY: Now who was the fifth person?

MR NYAWUZA: It was Mbambo, or Ernest Mahlane. He was going to show us the person who we were going to attack.

MR PANDAY: And did Mr Ernest Mbambo remain with you all when Mr Lembede was attacked?

MR NYAWUZA: Yes. I and him and Ndimande went inside the shop and he pointed out the person to us who was inside the shop.

MR PANDAY: And did Mr Ernest remain in the shop, or did he leave?

MR NYAWUZA: After he had pointed out Mr Lembede to us, we went out. We all went out and thereafter he went to the car and four of us went back into the shop.

MR PANDAY: Nor Mr Nyawuza, in your evidence you mentioned that Mr Mthambo met you all at the camp. What sort of camp was this?

MR NYAWUZA: It was a camp who's objective was to ensure or stand guard so that if our opponents come to attack, we are in a position to see them and defend ourselves.

MR PANDAY: Now at this camp, who else was present with you before Mr Mbambo arrived?

MR NYAWUZA: There was Meyiwa and other comrades from my area.

MR PANDAY: Now you mentioned that at this camp while you were there, Mr Ndimande arrived with Ernest Mbambo, is that correct?

MR NYAWUZA: Yes, he was with Mr Mbambo and Mr Mkhize.

MR PANDAY: Now at that time had you known, or did Ndimande tell you of Mr Lembede being an IFP supporter?

MR NYAWUZA: It was not Ndimande who told us but it was Mr Mbambo who informed us.

MR PANDAY: Right. Now you mentioned that Mr Lembede was supporting the IFP by giving them firearms, is that correct?

MR NYAWUZA: That's correct.

MR PANDAY: And that such were used in attacks of comrades.

MR NYAWUZA: That's correct.

MR PANDAY: Now do you recall any of the comrades, or do you recall the names of comrades that were attacked?

MR NYAWUZA: No.

MR PANDAY: And do you know from which area these comrades were from?

MR NYAWUZA: What I would explain is, the weapons were used to launch attacks on the other group, for instance, if the ANC acquired firearms, we would use them to defend ourselves against the IFP and vice versa.

MR PANDAY: Now during the period when Mr Lembede was killed, were there any attacks being launched against the ANC in your area?

MR NYAWUZA: Yes. As I stated before, we were at camps because of the fights that were going on between us and the IFP.

MR PANDAY: And the attacks that were being launched on the ANC, was it attacks involving physical force or was it attacks involving the use of weapons?

MR NYAWUZA: It involved weapons.

MR PANDAY: What sort of weapons were being used?

MR NYAWUZA: It was an assortment of weapons, such as firearms and if at close range, they would also use assegais and knives, such weapons.

MR PANDAY: Now Mr Nyawuza, can you please give the Committee a detailed account and precise account as to what Mr Mthambo told you with regards to the attack on Mr Lembede and as to who he included to be part of this attack on Mr Lembede? Now take your time. Think of the incident, what were your orders and who were included in these orders?

MR NYAWUZA: As I mentioned earlier on, after Mbambo had informed Mr Mthambo in our presence of the problem they were experiencing, that is of that gentleman who was assisting the IFP, even Mr Mbambo himself had had to flee his area because of the situation and there were also comrades who had been killed at Mr Lembede's shop. Mr Mthambo came to the decision that this person should be eliminated immediately because the weapons that were used in Ngonyameni would be filtered to Unit 17 with whom we were fighting. He then selected people who were going to go on that mission, which was myself, Ndimande, Mkhise and Meyiwa. Mr Mbambo was going to show us the place and even point out that person because he was unknown to us.

MR PANDAY: Right. Now Mr Nyawuza, how were you going to travel to the place where Mr Lembede was mentioned to have been in?

MR NYAWUZA: That issue was discussed and it transpired that Mr Nyawuza had a vehicle and he could be asked to transport us to that place. Mr Mthambo then ordered them to pass by Mr Nyawuza's home to inform them that he should take us to Ngonyameni on Friday.

MR PANDAY: Now Mr Nyawuza, before we go on, could you please refer to as Mr Nyawuza, your father, as my father, so that it does not create any confusion? Now more importantly, now your father, Mr Nyawuza, was he a member of the ANC as well?

MR NYAWUZA: Yes because the area was an ANC stronghold.

MR PANDAY: And what sort of role did he have in the ANC?

MR NYAWUZA: He was a resident in the area and also he played a role because he associated himself with whatever the organisation was doing. For instance, sometime he would collect money to purchase ammunition and firearms and sometimes he would assist by providing transport to comrades who had been injured, perhaps taking them to the hospital or wherever they needed to be transported to.

MR PANDAY: Now Mr Nyawuza, upon receiving the information by Mbambo, that's Ernest, was there any sort of ...(intervention)

CHAIRPERSON: Could I interrupt at this stage? Was Mr Mbambo, whom you just referred to as Ernest, also known as Ernest Sipho Mahlane?

MR NYAWUZA: Yes.

MR PANDAY: May I proceed, Mr Chairman? Thank you. Now Mr Nyawuza, when Mr Mbambo informed all of you of Mr Lembede, was there any sort of investigation done to confirm the activities of Mr Lembede?

MR NYAWUZA: No, I would be lying because everything was organised within a short space of time and also for the fact that he stayed a bit of a distance from our area.

MR PANDAY: Now you mentioned earlier on in your evidence that Mr Mbambo comes from an area, what was the name of the area that he had come from?

MR NYAWUZA: He used to reside at Ngonyameni and left that area and came to reside with us at Nzamane and he was a comrade in the ANC.

MR PANDAY: Now you also mentioned in your evidence that there were attacks being launched against the ANC in the area from which Mr Mbambo came, is that correct?

MR NYAWUZA: No, attacks were not launched by people from Ngonyameni. I said we were attacked by people from Unit 17 which was a hostel. Those were the people with whom we were involved and had conflicts.

MR PANDAY: Now, Mr Nyawuza, after having received the orders from Mr Mthambo to attack and kill Mr Lembede, where did you acquire your weapons, namely your firearms?

MR NYAWUZA: I and Meyiwa received our firearms from Mr Mthambo. Ndimande had his personal firearm.

MR PANDAY: Would it be correct to assume that on most occasions, the comrades in your area were armed?

MR NYAWUZA: That's correct.

MR PANDAY: Now besides the three of you having weapons, did any of the other members that went to attack Mr Lembede have weapons?

MR NYAWUZA: As I explained, Mr Ndimande had his personal firearm.

MR PANDAY: You mentioned six of you had originally gone out to Mr Lembede's shop. The remaining three, that is your father, Mr Mbambo and the other person, I can't .... Were they also armed?

MR NYAWUZA: No. There were four people who were armed. My father and Mbambo were not armed.

MR PANDAY: Now is it correct then, after you received those orders, you went to collect your father to assist you in the transport?

MR NYAWUZA: From the camp they mentioned that they would go via my father's to request him to take us to Ngonyameni on Friday and that is what they did.

MR PANDAY: Now, the meeting you had at the camp was the day before or a few days before you were going to kill Mr Lembede?

MR NYAWUZA: I think it was on a Wednesday when we discussed this matter.

MR PANDAY: And was Mr Lembede then killed on that Friday?

MR NYAWUZA: Yes, on the Friday, same week.

MR PANDAY: Now, when you went to see your father for the transport, or let me rephrase - let me give you another question. Now it would be correct to assume that all this information you had on the Wednesday about Mr Lembede?

MR NYAWUZA: That's correct.

MR PANDAY: Now at the time, were you residing with your father in the area?

MR NYAWUZA: Yes, I was.

MR PANDAY: Now on the Thursday, did you not discuss the matter with your father?

MR NYAWUZA: No, I did not discuss it with him.

MR PANDAY: Now when exactly, or on which day did you father know that he had to accompany you all for the killing of Mr Lembede?

MR NYAWUZA: As I mentioned earlier on, when they left the camp, they said they were going to go to my father's home and Mr Mthambo was to request him to take us to Ngonyameni on Friday. When they returned, Mr Mthambo informed us that the trip for Friday has been arranged and my father had been informed and he informed Meyiwa that he will bring him the firearms the following day, which was a Thursday.

MR PANDAY: Now after all was planned for the Friday, where did you all meet before going to Mr Lembede's shop?

MR NYAWUZA: On the day which was a Friday, Mr Mbambo, Mkhize and Ndimande came to my home. They told us that they had passed by Meyiwa's home, who said we were going to pick him up on the way. We then got into the car and picked up Mr Meyiwa on the spot as arranged and on the front seat there was Meyiwa and Mbambo and my father. Mbambo was the one giving directions. As we arrived, the car was parked on the main road and all of us alighted except for the driver. We walked a short distance and stopped. Two persons remained behind.

MR PANDAY: Mr Nyawuza, just before you go on. You mentioned that the driver remained behind, all of you walked a short distance and two persons remained behind. What were the names of the two persons that remained behind?

MR NYAWUZA: Those who remained a distance away from the shop were Mr Meyiwa.

MR PANDAY: And who's the other person?

MR NYAWUZA: And Mkhize.

MR PANDAY: Now after they remained, is it correct then that three of you proceeded to the shop?

MR NYAWUZA: Yes, the three of us, myself, Ndimande and Mbambo proceeded to the shop. We went into the shop, pretended to be buying and Mbambo showed us Mr Lembede. We then left the shop and went to the other two and informed them that yes, we had seen Mr Lembede. Mr Mbambo then proceeded to the vehicle for the reason that he was known in that area and therefore could not be seen to be taking part in the attack. The four of us then went back to the shop.

MR PANDAY: Now you say that Mr Mbambo was known in the area, do you know if Mr Lembede knew Mr Mbambo?

MR NYAWUZA: Mr Mbambo informed us that he was known in the area because he had grown up there. I do not have personal knowledge of whether Mr Lembede knew him.

MR PANDAY: Okay and when Mr Mbambo took you all to the shop to point out Mr Lembede, did Mr Lembede see you all pointing him out?

MR NYAWUZA: I will say yes he saw him because Mbambo pointed him out to us. 

MR PANDAY: And how did he point him out?

MR NYAWUZA: He was the only older person in the shop.

MR PANDAY: Now, you say you think that Mr Lembede may have seen Mr Mbambo point him out. Was there no suspicion raised when Mr Lembede saw Mr Mbambo?

MR NYAWUZA: I said Mr Mbambo pointed out Lembede to us. In fact he told us that he's the one who's the older one after we had been served and that is when we went out of the shop.

MR PANDAY: Now after you returned and you informed the other two that you now can identify Mr Lembede, how many of you again returned to the shop?

MR NYAWUZA: As I stated earlier on, Mbambo returned to the car and four of us went back to the shop.

MR PANDAY: Now is the four, the two that remained plus yourself and Mr Ndimande?

MR NYAWUZA: Yes, those two Meyiwa, Mkhize and us.

MR PANDAY: Now at that time now was it already known as to who was going to shoot Mr Lembede?

MR NYAWUZA: Yes, we had both seen him, that is myself and Mr Ndimande.

MR PANDAY: So between you and Ndimande, were both of you going to shoot him or either one of you?

MR NYAWUZA: It was Mr Ndimande.

MR PANDAY: And what was going to be the purpose of the other two accompanying you and Ndimande?

MR NYAWUZA: Each one of us had a position to cover because we had all been assigned to do the job, so we were supposed to do it properly and be able to return.

MR PANDAY: Now what was your job, what job was assigned to you?

MR NYAWUZA: I was going to go into the shop with Ndimande. Ndimande would shoot him and I would cover Mr Ndimande in case anyone tries to fight back, that is what I was going to do.

MR PANDAY: And what was the job assigned to the other two people that accompanied you?

MR NYAWUZA: One stood at the door and one stood outside on the verandah and they were on the look-out covering the two of us who were inside.

MR PANDAY: And with Mr Lembede, was there anybody else in the shop with him when you went back?

MR NYAWUZA: Yes there were people, customers who were buying.

MR PANDAY: And were there any other assistants with Mr Lembede?

MR NYAWUZA: Yes, there were.

MR PANDAY: How many?

MR NYAWUZA: I cannot tell because my mind concentrated on the task we were about to do because there were other people present as well, that is the customers.

MR PANDAY: Now Mr Nyawuza, who did eventually shoot Mr Lembede?

MR NYAWUZA: As Mr Ndimande drew his gun, someone from inside the shop grabbed him.

MR PANDAY: And after he was grabbed, what took place thereafter?

MR NYAWUZA: They struggled for Ndimande's weapon. I then shot, fired a shot at Mr Lembede.

MR PANDAY: And was it just one shot or many shots that you fired?

MR NYAWUZA: I fired one shot.

MR PANDAY: And did this shot hit Mr Lembede?

MR NYAWUZA: Yes. I saw that he was hit.

MR PANDAY: Now after having shot him, what happened to you and Ndimande?

MR NYAWUZA: After I shot him, he fell. Ndimande then ran out and I walked backwards because my firearm was home-made which carried .303 bullets, I went backwards and went out of the door. As we came out the vehicle was already parked near the shop and we got in there and drove off. Mr Ndimande's weapon was left inside the shop.

MR PANDAY: The two people that were left as look-outs, did they not come to the assistance of you and Ndimande?

MR NYAWUZA: No, because the task had been accomplished after I shot him. We left thereafter.

MR PANDAY: After having shot Mr Ndimande, did you all take any cash or items from the store?

MR NYAWUZA: No, we did not take anything from the shop because our intention was to kill Mr Lembede, we did not have any other intention.

MR PANDAY: Now after completing the mission, did you all go back to Mr Mthambo and inform him of the completion of this mission?

MR NYAWUZA: Yes, when we left, we went past Mr Mthambo's home and informed him of how our task had gone.

MR PANDAY: And was this task then considered as a completed mission?

MR NYAWUZA: Yes, it was completed in that way.

MR PANDAY: And what had happened to the weapons that Mr Mthambo had given?

MR NYAWUZA: We left them with him when we returned, as we went there to give him the report back.

MR PANDAY: Now Mr Nyawuza is it correct then to assume that the sole purpose of having to go and kill Mr Lembede was because of him being a threat and being part of the IFP?

MR NYAWUZA: Yes, I would say so.

MR PANDAY: And as such he was involved in the supplying of weapons that were used against the ANC?

MR NYAWUZA: Yes, he was a great threat. I'll say he was the distributor of the firearms.

MR PANDAY: Is it also then correct to assume that you were acting on the information and instructions that you were given by Mr Mthambo who was the leader in your area?

MR NYAWUZA: That's correct, we did it following Mr Mthambo's instructions.

MR PANDAY: And when you appeared in court, did you in any way, or did you attempt to inform the court that your action was as a result of a political motivation?

MR NYAWUZA: No, I could not have explained that in court.

MR PANDAY: Why do you say you could not have? Is there any particular reason?

MR NYAWUZA: Firstly, I pleaded not guilty because the judges were from the apartheid era, the same judges who had sentenced comrades to death. I could not divulge the truth and say that my actions had been in pursuance of the ANC struggle.

MR PANDAY: Mr Nyawuza finally, did you benefit financially in any way from this attack on Mr Lembede?

MR NYAWUZA: No, I did not benefit financially.

MR PANDAY: Thank you Mr Nyawuza. Mr Chairman, that is the evidence for the applicant.

NO FURTHER QUESTIONS BY MR PANDAY

CHAIRPERSON: Thank you.

MR DEHAL: Sorry Sir, would you bear with me for a while? Thank you Chair, I have no questions.

NO QUESTIONS BY MR DEHAL

CHAIRPERSON: Any questions?

MS REDDY: Yes, Mr Chairperson, may I proceed?

CROSS-EXAMINATION BY MS REDDY: Do you confirm that at the time of the ...(indistinct) in question, you belonged to the ANC?

MR NYAWUZA: Yes I do confirm that.

MR REDDY: Do you have any documentary proof to support your statement?

MR NYAWUZA: No, I do not have documents to support that.

MS REDDY: Can you tell us where's your membership card to prove that you belong to the ANC?

MR NYAWUZA: Let me clarify. I was a supporter or a follower of the ANC, I never was a member, a fully paid-up member, therefore I had no membership card.

MS REDDY: Mr Nyawuza, I draw you to page 19 of your affidavit on your application form where you apply for amnesty, para (d) where you said:

&#9;&#9;"I became a member of the disciplinary committee in the ANC"

which clearly points out that you were a member of the ANC.

MR NYAWUZA: Yes, I was in the disciplinary committee.

MS REDDY: So what is the position now? Were you a member or were you a supporter because when I just now asked you the question, you said you were not a member, you were just a supporter.

MR NYAWUZA: It all depends on the extent of the role you play in your organisation. It was because of the role that I played that I was elected to be in that disciplinary committee. I did not have an ANC membership card. I was a firm supporter who played an active role in the organisation.

CHAIRPERSON: Tell me, when you were charged with this murder, there were originally five of you but then the trial went on with three of you.

MR NYAWUZA: Yes, that's correct.

CHAIRPERSON: Were you defended?

MR NYAWUZA: Yes, I was defended.

CHAIRPERSON: Do you know who paid for your defence?

MR NYAWUZA: No, I was defended by a State Attorney.

ADV SANDI: But did you not ask the ANC and Mthambo to organise a lawyer for your defence?

MR NYAWUZA: No, I did not get that opportunity to contact Mr Mthambo for them to get me an ANC lawyer, it was the State who appointed an attorney for me.

ADV SANDI: Did the ANC or Mthambo do anything for you during the time you were going through the criminal prosecution?

MR NYAWUZA: No.

ADV SANDI: Thank you.

JUDGE POTGIETER: Can I just finish that off. Did you and your father, did you stand your trial throughout or did you disappear at one stage?

MR NYAWUZA: Yes, there was a time when we disappeared.

JUDGE POTGIETER: You and your father?

MR NYAWUZA: Yes.

JUDGE POTGIETER: Did you run away?

MR NYAWUZA: Yes.

JUDGE POTGIETER: Sorry Ms Reddy.

MS REDDY: Thank you. Mr Nyawuza, would you agree if I told you that had you had a membership card, it would have actually been to some great advantage at this amnesty hearing?

MR NYAWUZA: Yes, I do agree with you, but more than that, what is going to help me more is to tell the truth before this Committee, because the people who were with me when we committed this offence are full members of the ANC. I think that is also going to assist me, notwithstanding the fact that I as a person did not have a membership card.

MS REDDY: Okay, Mr Nyawuza, I'm going to actually tell you that we're going to call in Mbambo to give evidence here today and I put through to you his version that actually says that you actually planned the robbery, that is why the proof of your membership becomes the crux of the matter here. What is your response to Mbambo's version where he said you and the other comrades, or should I say the other applicants, actually planned the robbery.

JUDGE POTGIETER: Ms Reddy, is Mr Mbambo's version that he was not involved?

MS REDDY: No, it does confirm that he was involved, but his own version will be put through, but the crux of it was they planned the robbery and he's going to give evidence to that extent here today.

JUDGE POTGIETER: They planned this operation?

MS REDDY: This robbery.

JUDGE POTGIETER: They planned this operation as a robbery, not as an assassination of a political enemy?

MS REDDY: Absolutely not according to instructions.

JUDGE POTGIETER: Yes, you understand that?

MR NYAWUZA: Yes, I understand that.

JUDGE POTGIETER: Respond to that.

MR NYAWUZA: Yes, I in turn respond. What Mr Mbambo is alleging is the same thing that he said in Court when he collaborated with the assistant then we denied the allegations in Court, we denied the murder in Court because of the situation then and he used that in that Court of Law and he was acquitted because of his testimony and he used that opportunity for him to be released because we were not in a position to reveal to the Court that he is the person who brought the information to us so that Mr Lembede could be attacked. Today we are here to reveal that before this Committee and before Mr Lembede's family, the motive why Mr Lembede was killed.

MS REDDY: Did you ask anyone who knew of your political affiliation to come here today and corroborate your evidence?

MR NYAWUZA: No, I did not.

MS REDDY: Can you tell us why that situation is so?

MR NYAWUZA: There is a lot of bloodshed that took place at Nzamane and people were displaced and I believe that the leadership in the area is not the same people who were leaders then, some of the people I was with left the area, some are dead and we could not contact people like Mthambo. I don't even know where he is at present, for him to support this evidence.

ADV SANDI: When was your last contact with Mthambo?

MR NYAWUZA: It was when I was arrested for this incident.

ADV SANDI: Where was that? Did he come to see you in police custody or what?

MR NYAWUZA: To see him face to face, the last I saw him was before my arrest.

ADV SANDI: Thank you.

MS REDDY: Mr Nyawuza, I actually accept your answer that you gave me, but I find it a little bit unrealistic when you say that you couldn't find at least one person to corroborate your version that you were politically affiliated.

MR NYAWUZA: I also regret that fact that I was unable to contact the most important person, a person like Mr Mthambo. It's the political situation that has affected these events, therefore I am sorry, but I could not contact him.

MS REDDY: Mr Nyawuza, I put it to you that you actually couldn't get anyone here today to corroborate your evidence because the motive of the killing was simply not a political reason but that of robbery.

MR NYAWUZA: No, I dispute what you're saying, I cannot accept that.

MS REDDY: What intelligent work did you do to make sure that Mr Lembede, the deceased, was actually supplying weapons to the IFP?

MR NYAWUZA: I will put it this way. If a person who grew up in the same area could come to us and tell us, spell out that comrades had been killed at Mr Lembede's shop, we took that matter very seriously and Mr Mthambo made a decision immediately. This was information we received from a person from the same area, it was not allegations that were received from people who did not know Lembede, or who did not know the area, therefore we deemed it sufficient information.

MS REDDY: So you would agree if I say to you that you and the other applicants here today, could very well be confused that Mr Lembede was the one providing the weapons to the IFP? Would you agree with that?

MR NYAWUZA: It will be Mr Mbambo's responsibility to clarify that if perhaps he had pointed out a wrong person, but I shot at a person whom he had pointed out as Mr Lembede.

MS REDDY: I'm actually not concerned about Mbambo's responsibility. The question that I'm asking you to agree- or what I'm asking you to agree with, it very well could have been that it was a mistaken identity and you killed a wrong person because simply because you didn't do any concrete or intelligent work to find out whether Mr Lembede was actually providing the weapons.

MR NYAWUZA: I cannot agree with you there. What I'm saying is, I shot at a person who had been pointed out by Mbambo as the man we were looking for. I did not make a mistake there. I shot a person who had been pointed out to me. If there was a mistake made, he must have made that mistake himself, that is Mr Mbambo.

JUDGE POTGIETER: Sorry. Did you know Mr Mbambo before that meeting on the Wednesday where you were camping?

MR NYAWUZA: Yes, I knew him.

JUDGE POTGIETER: How did you know him?

MR NYAWUZA: I knew him as a person who was at the time residing in the area.

JUDGE POTGIETER: Residing in your area?

MR NYAWUZA: Yes, in the Nzamane area.

JUDGE POTGIETER: Did you know anything else about him?

MR NYAWUZA: Yes, I knew that he was also a member of our organisation. That was all I knew about him.

JUDGE POTGIETER: You knew that he was a member? Did you know that he was a member of your organisation?

MR NYAWUZA: I am not in a position to say whether he was a full member or just a supporter, but for the reason that that area was an ANC stronghold, he also played a role as a supporter or as a follower.

JUDGE POTGIETER: So did you conclude from the fact that he was residing in that area that he was also supportive of the ANC?

MR NYAWUZA: That's correct, because we were involved in all activities together, in the activities of the organisation.

JUDGE POTGIETER: So that was all that you knew about him? He lived in the area and you assumed that he was supportive of the ANC? Was there nothing else that you knew about him?

MR NYAWUZA: No because he associated himself with the policies and the activities of the organisation and that indicated to me that he was indeed a supporter.

JUDGE POTGIETER: Sorry, Ms Reddy.

ADV SANDI: Sorry Ms Reddy, I'm afraid I'll have to ask you to explain this a bit. What exactly did he do? Did he do anything actively on behalf of the ANC as a supporter as you have said?

JUDGE POTGIETER: As I stated earlier on, we were fighting, defending the ANC against the IFP from Unit 17. He did play a role there. He would take part in such fights, that is why I trusted and believed that he was also a supporter. He would also go to camps and partake in activities of the ANC.

MS REDDY: Did the killing of Mr Lembede stop the conflict between the ANC and IFP?

MR NYAWUZA: In killing Mr Lembede, would assist us as the ANC because the supply of weapons to the IFP will be stopped.

ADV SANDI: Can I just come in there? Would you say you knew him well in the light of what you've just said about the deceased? Did you know him well?

MR NYAWUZA: No. As I stated before, I did not know him and I did not even know where he resided.

ADV SANDI: Yes, but surely you must have been surprised to hear that he was actually supplying the IFP with arms to wage this war against you?

MR NYAWUZA: Please repeat that question.

ADV SANDI: If he was one of you then as you've said you must have been surprised, not so, to hear that he was supplying the IFP with weapons, arms?

MR PANDAY: Sorry Mr Chair, I think you've just confused - you mention that if he was one of you, are you talking about Mr Lembede or Mr Mbambo?

ADV SANDI: Lembede, I'm talking about Lembede.

MR PANDAY: Mr Lembede was not regarded as one of them, they were informed of him being one of the people supporting the IFP. I don't think it was ever contended by the applicant that Mr Lembede was one of them. That was the information that was relayed to them about Mr Lembede.

ADV SANDI: Oh sorry, I have ...

MS REDDY: That is correct.

ADV SANDI: Oh I misunderstood him, sorry.

JUDGE POTGIETER: Mr Nyawuza, the important point that Adv Sandi has touched upon, can I just carry on with that? Even - do I understand your evidence correctly? Even Mr Mthambo didn't know this Mr Lembede or in fact he didn't even have an idea where Lembede's shop was, not so?

MR NYAWUZA: That's correct.

JUDGE POTGIETER: So none of you, apart from Mbambo as you testified, had any idea about Mr Lembede?

MR NYAWUZA: No, none amongst us knew about him. It was Mr Mbambo who came to inform our Chairperson in our presence about this.

JUDGE POTGIETER: It was the first time in your life that you heard about Lembede at that meeting on the Wednesday, would that be right?

MR NYAWUZA: Yes, that was the first time.

JUDGE POTGIETER: Yes, thank you. Ms Reddy, sorry.

CHAIRPERSON: Mr Mbambo came to tell you at this meeting, he was a loyal ANC member who was trying to help the ANC, is that the position?

MR NYAWUZA: That's correct.

CHAIRPERSON: But at the trial he gave evidence against his colleagues, is that correct?

MR NYAWUZA: That's correct.

CHAIRPERSON: While you were pleading not guilty and saying you weren't there, he was saying you forced him to go and point out the shop?

MR NYAWUZA: That's correct, that's what he stated before the Court.

CHAIRPERSON: And that you were going there to rob it?

MR NYAWUZA: That's correct.

CHAIRPERSON: Carry on.

MS REDDY: Mr Nyawuza, I asked you whether the killing of Mr Lembede stopped the conflict between the ANC and the IFP and you didn't give me a direct answer. Could you just respond to that question again?

MR NYAWUZA: I responded by saying that in killing Mr Lembede, we would benefit by stopping the supply of weapons to the IFP in the Ngonyameni area before those arms could be transported or be supplied to Unit 17, IFP members, with whom we were involved in that conflict. It did not as such stop the fighting between the two organisations. We were also helping out one of our comrades because his problem affected all of us, that is why we went to attack Mr Lembede.

MS REDDY: Mr Nyawuza, why did you and your comrades choose in particular a Friday?

MR NYAWUZA: In my testimony I already stated that it was Mr Mthambo who decided on that date and he selected the people who were going to carry out the attack, therefore I cannot respond to that question why he chose that day.

MS REDDY: If I were to put it to you that on a Friday lots of people actually do shopping and plus there would be lots of cash in the till of Mr Lembede and if I were to put to you that robbery was the motive and that is why you and your comrades actually chose the Friday, what would you respond thereto?

MR NYAWUZA: I would dispute that. As I've just stated, we did not discuss it with Mr Mthambo, as in regards to the date he made that decision and with regards to the robbery, I do not know what you mean because we did not rob anything from the shop, we just went there to attack Mr Lembede. This happened in a rural area. That place is rural. It is not a township, therefore I do not know about what you mean about a Friday, that it would be busy and so forth.

JUDGE POTGIETER: I'm sorry. Did you consider killing Mr Lembede at his home at night time when it's quiet?

MR NYAWUZA: We who went out to carry out the attack, did not decide on where we were going to launch the attack, it was the person who showed us directions who informed us of where he could be found and he took us to the shop and pointed him out to us. We did not plan on where we were going to attack him.

JUDGE POTGIETER: Didn't you, in your meeting when you were discussing this, didn't you look at all the possibilities and say to one another: "Wouldn't it perhaps be safer to kill the man at his house at night instead of going and kill him in front of all his customers and his assistants who can identify you afterwards? Didn't you think of the less risky way of executing this assassination?

MR NYAWUZA: No. We did not discuss that because Mbambo informed us that we would find him at the shop and that is where we went and that is where he pointed him out. If he had told us that we would find him at home, that is where we would have gone.

JUDGE POTGIETER: Do you agree that would have been a less risky way of going about the assassination, instead of killing him in full view of all his assistants and possible customers in the shop?

MR NYAWUZA: We did not think of that. We just thought of getting him and getting him and shooting him.

JUDGE POTGIETER: Ms Reddy.

MS REDDY: Thank you Mr Potgieter. I was just on the brink of asking those questions. Mr Nyawuza, at the time when Mr Mbambo pointed out the deceased to you, why didn't you and your comrades actually finish the job at that point in time? When I say finish the job, I mean why didn't you all shoot him at that instant?

MR NYAWUZA: As I stated earlier on, Mbambo comes from that area of Ngonyameni, he grew up there. He left his area because of the political situation, that information we got from him, therefore we could not attack him in his presence when there were witnesses who would be able to identify him, that is why we left, we went to the vehicle and then the four of us returned and attacked him and the four of us were not known in that area.

MS REDDY: Mr Nyawuza can you tell this ...(intervention)

CHAIRPERSON: ... have a short adjournment?

MS REDDY: ...(indistinct - mike not on)

COMMITTEE ADJOURNS

ON RESUMPTION

NKOSINATI EMANUEL NYAWUZA: (s.u.o.)

CROSS-EXAMINATION BY MS REDDY: (cont)

&#9;Thank you Mr Chairperson. Mr Nyawuza, can you actually tell us why you actually jumped bail when the remaining four accused were tried?

CHAIRPERSON: Remaining three isn't it? He and his father jumped bail.

MS REDDY: Yes, that's correct. Sorry.

MR NYAWUZA: In 1994 I was working, I was working under the protection unit, I was guarding the Ministers and when this case was heard, I was not working around Durban and I didn't know the date, therefore I didn't go back to find out, I only heard in December that they had been sentenced, Meyiwa, Ndimande had been sentenced.

MS REDDY: But you very well knew that you were implicated in a charge of murder.

MR NYAWUZA: Yes, I knew.

MS REDDY: What steps did you take to find out about the date?

MR NYAWUZA: No, I didn't take any steps.

MS REDDY: Would you agree if I told you that there was an onus on you to actually find out about the date?

MR NYAWUZA: Yes, I will agree with you that the onus was on me to find out but I didn't do it. I do have one reason that I can put before this Committee, one reason that led me not following this.

MS REDDY: After you learned that the other comrades were sentenced, what steps did you thereafter take?

MR NYAWUZA: I will give you same reason which I just gave. There were no steps which I took. I do have one particular reason that I can put before this Committee as to why I didn't take any steps.

MS REDDY: Can you relate why?

MR NYAWUZA: Yes. The reason I didn't take any steps, what I did was not for me, it was for my organisation, for ANC. What I did at that time, I saw it as something that I had to do, therefore I didn't see any reason why I should go before the Judge and testify about that, because at that time I knew the harsh sentences which the Judges used to give to other comrades, therefore my aim was not to go and appear before them, because what I did, I was doing it for my organisation, the ANC, that is why I didn't take any steps.

MS REDDY: Mr Nyawuza, I put it to you that the only reason you didn't be present at the trial was you knew very well that the motive of the killing was simply robbery and not any political reason.

MR NYAWUZA: No, not at all, I dispute that. The reason I didn't take any steps, it's the very same reason I just put before this Committee.

MS REDDY: No further questions.

NO FURTHER QUESTIONS BY MS REDDY

CHAIRPERSON: What happened when your father was then brought back before the Court?

MR NYAWUZA: He was also sentenced.

CHAIRPERSON: And you didn't go back then either?

MR NYAWUZA: No, I didn't.

CHAIRPERSON: Thank you.

CROSS-EXAMINATION BY MS THABETHE: Thank you Mr Chair. Where were you staying at the time of the incident of the killing of Mr Lembede? Where were you staying?

MR NYAWUZA: In Nzamane.

MS THABETHE: And how far is Nzamane from Ngonyameni?

MR NYAWUZA: It is difficult for me to estimate the distances. It is just outside Umlazi Township.

MS THABETHE: How many hours drive would you say by car?

MR NYAWUZA: I'm not certain, but I will say it's less or less than an hour.

MS THABETHE: How long did you drive when you were going there that day? Would you remember? About an hour, would you say?

MR NYAWUZA: I would say less than an hour and I'm just estimating but it can never be more than an hour.

MS THABETHE: In your father's statement at page 48, I'm just checking the paragraph - on paragraph 2, he seems to suggest that he decided to take you, after being asked by his neighbour to take him to Ngonyameni, he then decided to take you to accompany him. He doesn't seem to give the picture that you've given. What would your response be to that?

MR DEHAL: Sorry, Chair, for the interruption. Perhaps it would be fair at this stage to place on record, my instructions are that this affidavit is not one that the father, Elijah Nyawuza, second applicant, will confirm as correct. Indeed he says his signature on the hand-written aspect thereof, on pages 50, 51, 52 are his, it's a cross made by him, but the affidavit was never read to him, he did not confirm its correctness and when I read the contents to him, he distanced himself from it. Thank you.

JUDGE POTGIETER: Yes, Ms Thabethe, perhaps you should put it on the basis that if his father had said that, whether that would be correct or not, because it seems as if this is in dispute.

MS THABETHE: Yes and I was also interested to find out whether he disputes all the contents or some of the contents in the statement.

JUDGE POTGIETER: Yes, you'll probably find that out as the hearing proceeds but at this stage, insofar as paragraph 2 is concerned, that's the best you can do, is to ask him if his father indeed said that, what his response would be.

MS THABETHE: Thank you. I'm indebted to you. I rephrase my question then. If your father would come and say he took you to Ngonyameni Reserve to accompany him, what would your response be to that allegation?

MR NYAWUZA: I would dispute that because it wouldn't be the truth, he will be telling this Committee a lie. I will dispute that.

MS THABETHE: Right. On page 75, that's the judgment, it's indicated that Mahlane stated in Court that you are the ones who actually approached him to commit the crime of robbery. What would your response be to that?

MR NYAWUZA: I will dispute that completely.

MS THABETHE: If also he would come and say you knew about Mr Lembede, through Mr Meyiwa, what would your response be to that?

MR NYAWUZA: That will be a blue lie, same lie he testified in Court when he was making sure that we were being sentenced. The person who talked about Mr Lembede, it was him when we were in the camp. He came in that camp and told our Chairperson, Mr ...(indistinct). We were together with Mr Meyiwa. No one else told us about Mr Lembede besides him himself.

MS THABETHE: The judgment also indicates that Mr Joseph Mkhize said the very same thing that Mr Mahlane said. Do you know why this would be the case.

CHAIRPERSON: Where's this?

MS THABETHE: Page 72 of the judgment, towards the end, it's the second last paragraph.

MR DEHAL: Sorry and I didn't get the question because I think my learned colleague was asking the question whilst the interpretation was coming in.

MS THABETHE: Okay. Sorry. My question was, the judgment seems to indicate that accused number 1 who is Mahlane and Joseph Mkhize, gave the same version, they were consistent with each other. My question is, do you know why Joseph Mkhize would give the same evidence as Mahlane?

MR NYAWUZA: Let me highlight one thing, the person who testified in Court was Mr Mbambo and the Court used Mbambo's evidence under oath. Now I'm confused that how can the Court use any evidence which was led by someone not under oath like Mkhize. I am confused, I don't know how I can answer this question to satisfy you.

CHAIRPERSON: The judgment which we have before us says that Mkhize gave evidence that would mean evidence under oath.

MR DEHAL: Sorry, Chairperson. May I just help? It would appear as though this applicant and his father disappeared well before that testimony was adduced and in the subsequent trial of this applicant, it was - I think this is his testimony, Mbambo testified against him and not these two and the question relates to the testimony of these two of Judge ...(indistinct) judgment against the other remaining accused in the absence of this applicant.

CHAIRPERSON: Well, one of these people is Mbambo.

MS THABETHE: Mr Chair, if I may come in at this stage? Maybe just to clarify why I'm asking this question. Why I'm asking this question, it's because the applicant seems to be suggesting that Mahlane you know had malice or had his own intentions of lying to Court about them, so I want to find out about Joseph Mkhize now, whether he was there or not, what motive would Joseph Mkhize have to tell what Mahlane told as well. They say exactly the same version.

CHAIRPERSON: I think it might help if you were to use Mbambo, rather than Mahlane. They are the same person but the witness has been, throughout using the Mbambo.

MS THABETHE: Okay. Mbambo then. Would you answer my ...(intervention)

CHAIRPERSON: Well his answer is, he didn't hear Mkhize's evidence, so he can't comment on it. He can't understand how the Judge could ...

MS THABETHE: My response to that Mr Nyawuza, is that Mahlane and Mkhize told the same version and Mbambo and you know Mbambo's version, isn't it? You know what Mbambo said, isn't it, in Court about you. 

MR NYAWUZA: Yes, I do know what Mbambo said in Court, but I don't know what Mkhize said. When I was in Court Mkhize didn't give any evidence. The only evidence that I know is Mbambo's evidence therefore I cannot comment on somebody's evidence which I didn't hear.

MS THABETHE: Can you just listen to what I'm saying and try and understand what I'm saying? I understand the fact that you didn't hear Mkhize's evidence in Court, but I'm saying to you, Mkhize gave the same evidence as that that was given by Mbambo. Now my question to you is why would Mkhize do that? Why do you think Mkhize would do that? What motive would he have to give the same version?

MR PANDAY: Mr Chairman with due respect, my learned friend is calling upon the applicant to speculate on something he has no knowledge of. There could be various reasons as to why, when Mkhize gave his evidence, the judgment turned out the way it did as opposed to the matter when the applicant was apprehended and judged. I think the question is a bit unfair for the applicant to answer as to why Mkhize gives the same version.

CHAIRPERSON: Well isn't the question simply, can you think of any reason why Mkhize should give false evidence against you?

MR PANDAY: I think the applicant has answered the question Sir, he can't say that because he was not there, or Mkhize ...(intervention)

CHAIRPERSON: He doesn't have to be there. He's not being asked to comment on the evidence, he's being asked, as I understand it, to comment on the reason why he should do so.

MR PANDAY: Yes, Mr Chairman.

CHAIRPERSON: Can you suggest any reason why Mkhize would have given false evidence about what happened?

MR NYAWUZA: Now I think I do understand. If you want me to speculate on why they gave similar version, I would simply say the two of them denied any knowledge about the crime, they denied being involved and I would think they chose to do so in order to run away from, or run away from the responsibility of the crime, but this happened to all of us, we planned all of us and we decided that we were going to deny any knowledge, all of us, and it surprised me because they were turned into State witnesses to give evidence against us and they decided to say that this crime was purely a robbery, but what I know, when this was planned that we were going to deny, therefore I think the reason they testify or they gave similar versions is because they were State witnesses and they were trying to eliminate any responsibilities of the crime. At that time it was too late for the rest of us to turn and say we are pleading guilty and we know exactly what happened, that is why they used that method, both of them.

MS THABETHE: Was Joseph Mkhize involved in this incident, because you've indicated that he changed his version because he did not want to be found guilty, if I heard you correctly. Was he involved in this incident?

MR NYAWUZA: Since I've started giving evidence, I did mention Mkhize, Mkhize, I meant Joseph Mkhize, he's the very same Joseph Mkhize who has been involved.

MS THABETHE: Wasn't he outside?

MR NYAWUZA: We were together, we were staying in Nzamane and we were together in the ANC and everything which we did, we were doing it together.

MS THABETHE: So would you say, again I want you to speculate on this because you were not there, on page 80 of the judgment ...

JUDGE POTGIETER: Record?

MS THABETHE: Page 80, line 18, would you say what is said here is correct or not correct where it says Joseph Mkhize got involved because he happened to have the misfortune of overhearing too much in the shebeen about the planning for this robbery, so he was told by Elijah and the others that he would have to come along with them to be implicated in the matter, so that he could not be a spy for the police? What would you say to this? Is this correct? Is this false?

MR NYAWUZA: I don't know anything about what you've just read. What I know is that Mkhize, Mbambo and Ndimande came to the camp. I don't know anything about a shebeen.

MS THABETHE: My last question to you is, when you were inside the shop, did any one of you between you and Ndimande, demand money from either Mr Lembede or Mr Mukungo?

MR NYAWUZA: No one.

MS THABETHE: Thank you Mr Chair.

NO FURTHER QUESTIONS BY MS THABETHE

MS REDDY: Mr Chairperson, could I just interrupt with one important question that I neglected to ask?

CHAIRPERSON: Yes.

MS REDDY: Thank you Mr Chairperson.

FURTHER CROSS-EXAMINATION BY MS REDDY: Mr Nyawuza I draw your attention to page 31 of the bundle and I will actually quote now:

&#9;&#9;"This is not your first encounter with the law. According to you you are no more than 23 years old now and yet before the event in question, you had already been involved in robbery."

Can you just tell us a little bit about the robber that the Judge is actually quoting here? Do you confirm that you had been involved in a robbery previous to the question, to the offence in question.

MR PANDAY: Mr Chairman, what's the relevance of that, if there was, in relation to the incident that the applicant seeks for amnesty.

MS REDDY: Mr Chairperson, may I respond to the question of my learned colleague? Mr Chairperson the motive that we bring out here, is robbery and not a political reason, so had it been that the applicant was previously involved in robbery, it shows reasonable inference that it very well could be in the offence in question here today and in all probability it's a reasonable question.

MR NYAWUZA: I was never involved in robbery before. As from 1991 going backwards, I was never involved in any robbery.

MS REDDY: So you're actually telling to this committee that the Judge was actually incorrect in what he said to the Court in his sentencing?

MR NYAWUZA: I think that's purely a mistake and I think evidence like that can be easily ascertained because I was never involved in any robbery.

MS REDDY: Mr Nyawuza, I put it to you that you are actually lying. No further questions.

MR NYAWUZA: As I'm here before the Committee, I am here to testify and tell the whole truth about what happened and also I want the Lembede family to know the truth. I know that in Court things were said which were not true and today I'm here to tell the truth and I'm certain that I am telling the honest truth before this Committee and it is something that I know and something which I took part in it.

MS REDDY: Okay Mr Nyawuza, Mr Mbambo will actually give evidence to this Court to the extent that you were an habitual criminal and it was known to the Community where you lived.

CHAIRPERSON: He, Mbambo, was an habitual criminal?

MS REDDY: No, Mr Nyawuza.

MR NYAWUZA: I don't know whether I should respond to that.

MS REDDY: Yes, go ahead.

MR NYAWUZA: What I can say is that as you can see I was chosen together with elderly people and the reason I was chosen, it was because of my activities in the community and the organisation, not criminal activities, not at all and I don't know what criminal activities he is talking about and what criminal activities he testified on in Court, that's all I can say.

MS REDDY: Thank you. No further questions.

NO FURTHER QUESTIONS BY MS REDDY

MR PANDAY: No re-examination, Mr Chairman.

NO RE-EXAMINATION BY MR PANDAY

CHAIRPERSON: Dealing with this last point, a number of the cases we have heard lately, we have had pages and pages of the accused's criminal records, in this case there do not seem to be any. I don't know whether they are part of your file, or part of the records available. The matter could be settled beyond dispute if the official record is produced. It's presumably, I can't imagine a Judge inventing a conviction. The Judge was presumably given some document. Perhaps inquiries could be made.

MS THABETHE: Mr Chair, I understand there is a docket in this office, so I'll have a look during lunch time.

CHAIRPERSON Thank you. That concludes your ..(intervention)

MR PANDAY: That's the evidence of the applicant. Thank you.

WITNESS EXCUSED

MR DEHAL: Sorry Chair. I was wondering whether we should take the lunch adjournment at this stage?

CHAIRPERSON: Well, we had arranged, I don't know if you were told, we were told that arrangements would be made that lunch would be served at 1.30 today.

MR DEHAL: Oh.

CHAIRPERSON: Would you rather not start with ... we've got about twenty minutes then, it should see us through your next applicant in chief at least.

MR DEHAL: I wanted to confer with the next applicant, arising from certain aspects that arose here and unfortunately I'm using an interpreter, so - perhaps we could take the lunch break.

CHAIRPERSON: Well we'll take the luncheon, if we can all try to get back as quickly as possible, please.

MR DEHAL: Thank you.

COMMITTEE ADJOURNS

ON RESUMPTION

JUDGE POTGIETER: Is it second applicant, Elijah Nyawuza?

MR DEHAL: No, it's Ndimande, the third applicant. Thank you.

NAME:&#9;F MAKONYA NDIMANDE

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

F MAKONYA NDIMANDE: (sworn states)

MR DEHAL: Thank you Sir.

EXAMINATION BY MR DEHAL: Mr Ndimande, is it correct that this application which I show to you, for the record pages 12 onwards in the bundle which refers to all four of the applicants in the heading thereof, is your application, your application for amnesty?

MR NDIMANDE: It is.

CHAIRPERSON: My bundle is headed "Additional Bundle", is yours?

MR DEHAL: Yes, indeed, of the Additional Bundle, thank you. And is it correct that this affidavit on pages 19 to 23 of the same bundle, which is the English transcript of the hand-written aspect, pages 1 to 23, is your affidavit?

MR NDIMANDE: Yes, it is.

MR DEHAL: You confirm the correctness of them both, do you?

MR NDIMANDE: Yes.

MR DEHAL: I see in the application, page 13 of that bundle, you say the only aspect, the only incident in regard to which you seek amnesty is that relating to the killing of the deceased, Mr Lembede, correct?

MR NDIMANDE: Correct.

MR DEHAL: And at the bottom of that page you say you were approached by Mr Ernest Mahlane, who told you that the deceased was supplying weapons to the IFP people and was responsible for the ANC killings. You then continue on the next page to say Mr Mthambo instructed us to kill Mr Lembede. 

&#9;&#9;"We went to the shop and Pops Nyawuza, that's the first applicant who has just testified, had shot the deceased."

Correct?

MR NDIMANDE: Correct.

MR DEHAL: And then at the bottom of page 14 in paragraph 10(a) as political objectives for the event that you sought to achieve, you say the following:

&#9;&#9;"We had to eliminate the deceased because he was responsible for supplying weapons to the IFP members who killed ANC people."

Do you confirm that?

MR NDIMANDE: Correct.

MR DEHAL: You then go on in that last paragraph (b) thereof to say:

&#9;&#9;"Mr Lembede, the deceased, was supplying arms to IFP members, there was constant fighting between ANC and IFP people. Mr Lembede would supply these IFP people with weapons and attacked the ANC people. We had to eliminate him so that we could live in peace without fear of being killed by the IFP."

Is that correct?

MR NDIMANDE: That's correct.

MR DEHAL: And then you say in paragraph 11(a), contained on page 16 of that bundle:

&#9;&#9;"Mr Mthambo was the head of the ANC in the area of Umbumbulu."

MR NDIMANDE: Correct.

MR DEHAL: When dealing with orders or approvals given to you, under paragraph (b) of the same page, you say:

&#9;&#9;"The order was given in June 91 at the meeting on Wednesday. The place was Nzamane in Umlazi."

MR NDIMANDE: Yes.

MR DEHAL: Then of course you deal with your criminal charge - or sorry, you're being charged criminally with this incident, you are being convicted of murder and sentenced in that regard.

MR NDIMANDE: Yes.

MR DEHAL: Now just background, Mr Ndimande. In your affidavit on page 19 you deal with your ANC involvement. Before I begin to question you on that, may I ask you, you were present in these proceedings when the first applicant, Mr Nkosinati Emanuel Nyawuza testified. Do you confirm the correctness of his testimony insofar as it relates to you?

MR NDIMANDE: It is true what he testified on.

MR DEHAL: And do you confirm that the incident and the execution of the deceased Mr Lembede took place in the way, in the manner that Mr Nyawuza, the first applicant testified?

MR NDIMANDE: Would you please repeat your question? I didn't quite follow.

MR DEHAL: Mr Nyawuza who testified earlier, the first applicant, described in detail how the elimination of the deceased took place. He spoke of which vehicle was used, that his father's vehicle was used, that you went to the shop of the deceased and how the events there followed up and how the deceased came to be eliminated. Now do you agree with the testimony in that regard?

MR NDIMANDE: Yes, I do confirm that.

MR DEHAL: Thank you. I want to now deal with some aspects that my learned colleagues were concerned with, especially in their cross-examination of the first applicant. Firstly, there was a camp and there were meetings at this camp and decisions were taken at this camp to eliminate the deceased, is that correct?

MR NDIMANDE: Yes, that's correct.

MR DEHAL: Can you give us some background about this camp and describe what it is? Is it an underground camp, is it an over ground camp, is it a shebeen?

MR NDIMANDE: It was a camp in an area where we were staying but it wasn't an open space. It was hidden.

MR DEHAL: Why was it hidden?

MR NDIMANDE: The reason it is because at that period if police were to discover that ANC people were hiding in such places, they will come and shoot at us.

CHAIRPERSON: So it was somewhere that you could reside in? It was a place you lived in?

MR NDIMANDE: It was a bushy area, we used to hide ourselves there.

MR DEHAL: Did you hold meetings in this camp, or did you live there and hold meetings in this camp? I'm talking of ANC meetings.

MR NDIMANDE: Yes, it was an area which we used to hold meetings in it and also camp there.

MR DEHAL: Mr Mbambo whom you heard the first applicant speak of, was one who featured very prominently in ANC circles in that area. What was his role in the ANC affairs in that area?

MR NDIMANDE: His duties in the area as a member of the ANC, he used to call us and tell us about meetings which were supposed to be held. We used to listen and follow whatever he told us.

MR DEHAL: In the leadership of the ANC within your area, would you have considered him as being your leader, equal to you, or below you?

MR NDIMANDE: His position was above me. His activities showed it that way.

MR DEHAL: Do you know whether Mbambo was an MK trained activist cadre or do you not know?

MR NDIMANDE: Mbambo told me that he was an SDU, this is what he told me.

MR DEHAL: Now did you and the other applicants form a part of the Self Defence Units? Were you members of this unit?

MR NDIMANDE: No, we were members of ANC.

MR DEHAL: Apart from this single act for which you seek amnesty, did you participate in any other ANC activities prior to this act and if so, can you briefly tell us what they were?

MR NDIMANDE: I took part in quite a lot of activities of the ANC. Sometimes when meetings were to be held, I used to go around telling people to come to that meeting and sometimes we used to recruit people to be members or supporters of the ANC.

MR DEHAL: Did you hold any placard demonstrations, any marches in the area, deliver any petitions to any persons?

MR NDIMANDE: Yes, our leaders sometimes used to give us pamphlets to go and distribute to the community.

MR DEHAL: Now as a member of the ANC, did you carry an ANC card?

MR NDIMANDE: Yes, I had one.

MR DEHAL: Did you ever previously take instructions from this Mbambo?

MR NDIMANDE: Yes, I did. In fact most of the instructions which he issued, we used to follow them.

MR DEHAL: When you speak of we, does that include the other applicants?

MR NDIMANDE: Yes.

MR DEHAL: So you would confirm what the first applicant said, that all of you, namely yourself, Mr Elijah Nyawuza and Mr Meyiwa were all ANC activists of this area, regarding Mr Mbambo as your leader and took instructions from him?

MR NDIMANDE: Yes.

MR DEHAL: Now when you received instructions from Mbambo to eliminate Mr Lembede, did you consider it necessary to carry out intelligence gathering, reconnaissance that is, on whether Lembede is such a man, namely an IFP man, ...(intervention)

CHAIRPERSON: Did they receive instructions from Mbambo to eliminate him?

MR DEHAL: That's been the evidence thus far.

CHAIRPERSON: I thought it was Mbatha

MS THABETHE: It's Mthambo.

MR DEHAL: Forgive me, it's Mthambo.

MR NDIMANDE: The person who brought this information was Mr Mbambo to Mr Mthambo, who in turn instructed us.

MR DEHAL: Sorry, bear with me, Sir. So it's actually - forgive me, Mr Ndimande, is it Mthambo that gave the instructions and was it Mthambo that was the senior, the leader in the area?

MR NDIMANDE: Yes, it was.

MR DEHAL: Yes, my question was, I'm not too sure if I followed your answer, did you do any reconnaissance, any intelligence gathering or were you told that that was unnecessary for it was done already?

MR NDIMANDE: After Mbambo reported this to us, he told us that he had done everything. He had investigated the matter.

MR DEHAL: So as you understood it, there was no need for you, correct me if I'm wrong, to carry out any further intelligence, but purely to carry out the act of eliminating Lembede?

MR NDIMANDE: Yes.

MR DEHAL: Now why did you, sorry, one of the Committee Members had a problem with this, why did you not go to the house of the deceased and eliminate him there perhaps in the late hours of the night when your identity will not be exposed, as opposed to going to the shop where clearly on a Friday, there must be some clients there, some people buying things and your identity is exposed?

MR NDIMANDE; The reason we went to the shop, it was because information was that in his home, there were weapons and we decided to attack him in his shop.

MR DEHAL: Yes and where did you get this information from that the weapons were in his home?

MR NDIMANDE: This is what Mbambo told us because he was the one person who was intelligent.

MR DEHAL: Okay. On another aspect altogether. One of my colleagues had difficulty with the previous applicant in regard to whether people stopped dying after Lembede was killed. Can you tell ...(end of tape) the area, especially the ANC people, had stopped dying in numbers as they were dying previously?

MR NDIMANDE: The killing subsided, it didn't stop but it was decreased.

MR DEHAL: And until Lembede was executed, were people dying in great numbers at the hands of the IFP with the use of firearms?

MR NDIMANDE: Well they were and they were being murdered by firearms.

MR DEHAL: And finally, during your trial, of course you stood trial, you did not disappear like the Nyawuzas did, did you - sorry, why did you not mention this political content of the incident to those Courts?

MR NDIMANDE: The reason was at that time, I perceived the Judges as people who were discriminating, that is why I didn't put this evidence before the Court.

MR DEHAL: And much evidence has been heard from the first applicant about why those two State witnesses who testified against you lied, for on your version they must have lied. Can you suggest reasons why Joseph Mkhize and the other State witness had lied? Sorry, not the other State witness, the first accused in the matter, Ernest Mahlane, otherwise known as Mbambo, him and Joseph Mkhize, can you suggest why they lied against you?

MR NDIMANDE: I will put it clearly this way and say that Mbambo was supposed to give evidence the way he did in Court because he was now a State witness and he knew even the place where the deceased lived, we didn't know and I think Mkhize as well joined Mbambo but I am not quite sure why Mkhize joined Mbambo, on Mbambo's version. If I were to say why I'd be just suspecting why, but I'm not certain.

MR DEHAL: And what appeared common cause during the trial with which I take it you'd agree, the visit to the shop by you and the others did not benefit you in any way in that nothing financial, no money was stolen and no goods were stolen from that shop, isn't that true?

MR NDIMANDE: No, we didn't take anything.

MR DEHAL: Bear with me, Sir. Mr Chairperson, that is all, thank you.

NO FURTHER QUESTIONS BY MR DEHAL

MR PANDAY: Just one question, Mr Chairman.

CROSS-EXAMINATION BY MR PANDAY: Mr Ndimande, after Mr Lembede was shot, would it have been still possible for you and Nkosinati Nyawuza to rob the place if you all had set out to do so, according to Mbambo's evidence? Can you understand my question?

MR NDIMANDE: Yes, I do. Yes, it would have been easy if the intention was to rob the place, we would have taken something, but we didn't because it wasn't the intention.

MR PANDAY: Okay and just let me rephrase ... After having shot Mr Lembede were there any obstructions to your robbing the place?

MR NDIMANDE: No, there wasn't any obstruction because after we had shot him we left.

CHAIRPERSON: Isn't it correct that you had a gun with you when you went in there?

MR NDIMANDE: Yes.

CHAIRPERSON: Somebody grabbed it and you struggled and then you left the gun, you let it go.

MR NDIMANDE: Yes.

CHAIRPERSON: So now there was at least one armed man in the shop?

MR NDIMANDE: I didn't see anyone who was armed, because the person who grabbed me was not armed.

CHAIRPERSON: But you left your gun there with him.

MR NDIMANDE: The gun fell down and I left it down and I ran away.

CHAIRPERSON: Carry on.

MR PANDAY: ...(indistinct - mike not on)

NO FURTHER QUESTIONS BY MR PANDAY

CROSS-EXAMINATION BY MS REDDY: Do you have any documentary proof to support your statement that you belonged to the ANC?

MR NDIMANDE: Since I am in prison I don't have it, but everything I left at home. Right now I don't have anything to produce because my membership card remained behind at home.

MS REDDY: I actually appreciate what you're saying, that you were fully aware that today was your hearing and that the membership card would provide documentary proof that you did belong to the ANC. Didn't you make any endeavours to retrieve that document from home?

MR NDIMANDE: I tried because I've written a letter to my home, but if they had responded, it might not have reached me because I've been changed from my cell to another cell, I'm not sure whether they did receive the letter or they tried to write back to me. Even if we can find my card, probably it has expired because it has been a long time.

MS REDDY: Was it known to the large part of the community that you belonged to the ANC?

MR NDIMANDE: Yes, it was.

MS REDDY: Why didn't you ask somebody to come here today on your behalf and corroborate your evidence?

MR NDIMANDE: As I've already mentioned that we've been changed in prison. I'm no longer using the same cell and I couldn't reach anyone.

MS REDDY: Didn't you ask your legal representative to assist you on that extent?

MR NDIMANDE: I couldn't get any chance to use a telephone, I couldn't even telephone my attorney.

MS REDDY: How long were you a supporter of the ANC prior to the incident in question?

MR NDIMANDE: I think it was in 1989, I'm not certain.

MS REDDY: So the version of Mr Mbambo today will be that you did not belong to any political organisation, that you were notorious for actually being part of criminal activities. What would you respond to that allegation or version?

MR NDIMANDE: It is easy for Mbambo to say it was allegations today, because he was actually turned into a State witness. He collaborated with the police and the Judge, that is why it's easy for him to stick to his original story.

MS REDDY: Do you confirm that Mr Mbambo actually alerted you to the fact or to the allegation that Mr Lembede, the deceased, was actually supplying weapons to the IFP members?

MR NDIMANDE: Would you please repeat your question?

MS REDDY: Do you confirm that it was Mr Mbambo who alerted you to the fact or to the allegation that Mr Lembede, the deceased in the matter, was supplying weapons to the IFP? Do you confirm that statement?

MR NDIMANDE: Yes, I do.

MS REDDY: Did you do any intelligent work to confirm what Mbambo actually told you was the real situation?

MR NDIMANDE: Mr Mbambo himself was responsible for the intelligence gather or this intelligence, he had done so before he came to see us.

MS REDDY: So notwithstanding the fact that Mbambo could be mistaken on the assumption you were reckless enough to be part of the killing?

MR NDIMANDE: I think the question is fair but the way it's phrased is unfair.

JUDGE POTGIETER: What is that question?

MS REDDY: What I actually asked him was the fact that he didn't do any intelligence work to confirm what Mbambo was relating to them was the actual fact, he was reckless enough to go ahead and be part of the killing.

JUDGE POTGIETER: He was just happy to accept what Mbambo was saying.

MS REDDY: Exactly, that is what I want to know what's his response to my statement that I made.

JUDGE POTGIETER: Ms Reddy says, Mr Ndimande, says that you were just happy to go along with what Mbambo said, you did nothing to confirm whether it was true or not. She said that was not proper on your part. You can respond to that.

MR NDIMANDE: We took everything that Mbambo said to us as the entire truth. We used to do things which Mbambo told us, we never investigated anything he said to us.

ADV SANDI: Sorry, Madam. The people Mr Lembede was alleged by Mbambo to have supplied with arms, did you ask him who those people were?

MR NDIMANDE: Let me just clarify something. Mbambo was not suspecting the deceased but he was certain that the deceased was distributing weapons to the IFP people.

ADV SANDI: Yes, but where did he get that from?

MR NDIMANDE: I wouldn't be able to say where he got that, but he can clarify that matter when he comes before this Commission and gives his testimony, he can answer that question.

ADV SANDI: Did he tell you what kind of weapons or firearms were being supplied to these IFP people?

MR NDIMANDE: No, he didn't tell us what type of weapons but what he told us is that there were different types of weapons.

ADV SANDI: Didn't he - did he tell you in which particular area such IFP people were being supplied with arms?

MR NDIMANDE: Yes, he did say that he was giving these weapons to IFP members who were residing in 17 Section and also at Ngonyameni.

ADV SANDI: When he conveyed this information to you, did you ask him any particular questions to get more picture as to what exactly was going on?

MR NDIMANDE: Mthambo was in a position to question those things to Mbambo because we were far below Mbambo, Mbambo would instruct us and sometimes he would tell Mr Mthambo and Mr Mthambo will instruct us. We were just foot soldiers who were just taking instructions.

ADV SANDI: Thank you Madam. Thank you.

JUDGE POTGIETER: How many weapons did Mr Lembede supply to these IFP people?

MR NDIMANDE: No, I wouldn't be able to say how many because Mbambo didn't say how many.

JUDGE POTGIETER: And nobody asked him?

MR NDIMANDE: No, among the applicants, no one in my presence.

JUDGE POTGIETER: What did he actually do? Did he give it to the IFP, or did he sell it to the IFP, or what?

MR NDIMANDE: I don't have that information whether he was giving them for free or selling them.

JUDGE POTGIETER: Did Mbambo tell you anything in that regard?

MR NDIMANDE: No, he just told us that he was giving firearms to IFP members.

CHAIRPERSON: When you say giving, do you mean supplying?

MR NDIMANDE: Yes, supplying.

JUDGE POTGIETER: Now were you not concerned when you were going to confront Mr Lembede that you were now going straight into the stronghold of an arms supplier, a man presumably with a supply of arms? Did that concern you at all?

MR NDIMANDE: That is why we attacked him in the shop, because we were scared to attack him in his home because we knew that the weapons were in his home.

JUDGE POTGIETER: How did you know that, that the weapons would be in his home?

MR NDIMANDE: Mbambo said so. Mbambo said he kept these weapons in his home and he sometimes took them from his home and supplied them to the IFP people, so we trusted Mbambo.

JUDGE POTGIETER: Yes, but didn't you think that look here, Lembede can actually be sitting with some of these firearms in his shop and you might walk right into it?

MR NDIMANDE: No, we didn't think so, but what we thought was that even if he had those guns or firearms, they were not in his shop, but they were at home in his home.

JUDGE POTGIETER: And you mean under those circumstances, knowing that you're going to confront this supplier of arms to the IFP, Nyawuza goes with a home made pistol or whatever you might call it, a home made firearm and I assume you go with a pistol, would that be a correct summary of your sum total of your weapons inside the shop?

MR NDIMANDE: We were being trusted and the people who had instructed us knew that we can carry this job.

JUDGE POTGIETER: Yes, thank you. Ms Reddy.

ADV SANDI: Ms Reddy if I could just on this same aspect? Did Mbambo tell you how long Mr Lembede had been supplying the IFP with arms? How long had he been doing this?

MR NDIMANDE; No, he didn't.

ADV SANDI: Did you ask him?

MR NDIMANDE: No, I personally I didn't, I don't know about others.

ADV SANDI: Did he tell you where he was getting these arms from?

MR NDIMANDE: No, he didn't.

ADV SANDI: And none of you asked him that?

MR NDIMANDE: No, not in my presence.

ADV SANDI: Did he tell you who else was involved with him?

MR NDIMANDE: No, he only told us about Mr Lembede.

ADV SANDI: None of you were interested to know who else was involved in this dangerous exercise?

MR NDIMANDE: We never used to question Mbambo on anything, we used to listen to what he had to say and follow what we were instructed to do.

ADV SANDI: I suppose at that stage you also had a problem of getting arms? Didn't you have a shortage of arms as an ANC structure?

MR NDIMANDE: Yes, we had a problem of not having enough firearms.

ADV SANDI: Were you not interested to know where firearms could be obtained?

MR NDIMANDE: This used to happen because Mr Mbambo and Mr Mthambo used to inquire about where they can obtain firearms and they will do this, not us.

ADV SANDI: Thank you. Thank you Ms Reddy.

MS REDDY: Mr Ndimande, would you agree that it would have been less risky to attack Mr Lembede in the car whilst he was travelling, rather than attacking him in the shop where there's a possibility of eye witnesses?

MR NDIMANDE: No, the easy way was the one we chose, to go and attack him in the shop.

MS REDDY: Mr Nyawuza related in his cross-examination that they attacked the shop because it was a specific instruction by the ANC Leader Mr Mthambo that that was the location that they should attack him, yet you today in your evidence-in-chief say to this Committee that you all actually chose to attack Mr Lembede in the shop because you were under the assumption that firearms were kept at his home, so there's two different contradictory evidence led by you and Mr Nyawuza. Could you just respond how come there is a contradiction in your evidence?

MR NDIMANDE: Would you please clarify that to me? Where is the contradiction?

MS REDDY: Mr Nyawuza who just gave evidence previous to you, when I asked him in cross-examination why they actually chose the shop as the location to attack Mr Lembede and he said that they chose the shop because it was a specific instruction given by Mr Mthambo that that was the location they should attack Mr Lembede and you now in your evidence-in-chief say to this Committee that you all chose the shop because the shop was the more safe place to do it because at Mr Lembede's home there were weapons that were stored there. So there's a contradiction in both the evidence, I just want you to explain why so, if you know, or tell me whose version is the truth?

MR DEHAL: Sorry, before he answers, may I just clarify at the level of objecting that there is no clear conflict or contradiction, in fact this applicant's testimony-in-chief was premised on the basis that he followed instructions to execute Mr Lembede in the shop and that is the instruction he followed. When subsequently asked questions as to why he did not go to the home as opposed to the shop, he reasoned on the basis that it was more prudent to go to the shop, believing that the firearms would be in the home. Now there is no contradiction there.

MS REDDY: Yes, I would just clarify the point. He actually said in his evidence-in-chief now that they chose the shop and the not home because the home was a place where they had weapons and it was Mr Nyawuza's evidence that they chose the shop because of a specific instruction, so there is a clear contradiction.

CHAIRPERSON: Didn't Mr Nyawuza say to you: "We did not choose where to attack, Mbambo took us there. He said we would find him there."?

MS REDDY: No according to what I actually - I may be incorrect, but I ...(intervention)

CHAIRPERSON: If he had told us we would find him at home, that is where we would have gone. I understood his evidence that they had no choice, they just followed Mbambo blindly.

ADV SANDI: Ja, it didn't matter where they would find him.

MS REDDY: I'll actually allow that, it's probably a mistake on my part. Mr Ndimande, it's Mr Mbambo's version that you were the one who actually confronted him on Friday, that's the 21st of June, the date in question and asked him to be part of the robbery that you all were actually going to commit.

MR NDIMANDE: I dispute that completely and the reason being Mbambo was working in Toyota and I was at home and I don't understand why I would choose a certain shop far from where I was to just go and rob and get less money. I dispute that, I wouldn't have chosen that shop.

MS REDDY: Is it correct that one of the people in the shop disarmed you?

MR NDIMANDE: He grabbed me and then we struggled and then the gun fell down.

MS REDDY: If I were to put it to you that the only reason you and your companions didn't succeed in robbing the store was because Edgar had actually fired a shot and that was when you all actually fled the scene.

MR NDIMANDE: I will dispute that. When we left the place, the deceased had already fell down and I didn't see Edgar and probably we would have fought with Edgar. 

MS REDDY: It is also Mr Mbambo's evidence today, or his version that he will say to this Committee today that it was only once that you and your companions entered the shop and not twice. Can you just respond to that?

MR NDIMANDE: If he would say he only entered the shop once, that's true, but not that entered the shop once. We went to the shop together with Mr Mbambo and second time we went without Mr Mbambo.

MS REDDY: I'm not actually talking Mr Mbambo now, I'm talking about you and the other applicants, besides Mr Mbambo, he's not the applicant here today.

MR DEHAL: Yes, but he's answered the question.

MS REDDY: Just repeat what you said please.

CHAIRPERSON: He said that the first time Mr Mbambo went into the shop with them but he did not do so the second time.

MS REDDY; According to Mr Mbambo's version which will be put to this Court, it seemed that the applicants here today only entered the shop once and that once was without him. We're not including Mr Mbambo in any of the entry into the shop.

JUDGE POTGIETER: Yes, Mr Ndimande, what is being put to you is that according to Mr Mbambo, you and Nyawuza that went into the shop with you, only went in once, not twice, that's really what's being put to you. Do you agree with that or disagree?

MR NDIMANDE: I disagree completely. We entered the shop two times. We first went together with him because he was supposed to point the deceased to us and the second time we entered the shop, it was without him.

MS REDDY: Did you know Mr Lembede, the deceased in the matter, prior to the killing?

MR NDIMANDE: No, I didn't know him at all.

MS REDDY: According to Mr Mbambo, it seemed as if you knew the deceased quite well prior to the killing.

MR NDIMANDE: If he is saying that we knew Mr Lembede, he must say how we knew him because that is not the truth. I do remember him saying so in Court and he said in Court: "I, Mr Ndimande, had a relative in Ngonyameni" and I don't have a relative there. If one can take Mr Mbambo's testimony as true, even the TRC can investigate this, I don't have any relative in Ngonyameni, I don't even know Mr Lembede.

MS REDDY: Thank you, no further questions.

NO FURTHER QUESTIONS BY MS REDDY

MS THABETHE: No questions, Mr Chair.

NO QUESTIONS BY MS THABETHE

CHAIRPERSON: Re-examination?

MR DEHAL: No thank you.

NO RE-EXAMINATION BY MR DEHAL

ADV SANDI: Were you wearing any balaclavas or anything to hide your faces?

MR NDIMANDE: No. Mbambo had a balaclava, we didn't because we were not known to the area.

ADV SANDI: Did you have any hand gloves to protect the identity of your thumb prints, your fingers?

MR NDIMANDE: No, we had nothing.

ADV SANDI: Thank you. Thank you Chair.

JUDGE POTGIETER: Sorry, can I just pick up on that? You say Mbambo had a balaclava?

MR NDIMANDE: Yes.

JUDGE POTGIETER: When did he wear that?

MR NDIMANDE: Yes, he had it on even though his face was not hidden by it, but he had it on.

JUDGE POTGIETER: So was the balaclava rolled up like a cap, on his head like a cap, not covering his face?

MR NDIMANDE: Yes, he had it on like a hat.

JUDGE POTGIETER: So you could see his face?

MR NDIMANDE: Yes, one could see his face.

JUDGE POTGIETER: Yes, thank you.

CHAIRPERSON: Thank you.

MR DEHAL: Perhaps for the sake of completeness, could I just deal with this aspect? 

RE-EXAMINATION BY MR DEHAL: If you look at page 128 of the main bundle, that is the statement of Mr Mbambo otherwise known as Mahlane, sorry I'll show it to you. Do you see he says here in his own statement in the second line:

&#9;&#9;"I was given a hat to wear it because I was known in the area"?

You agree with that?

MR NDIMANDE: I disagree about the part that he was given, because his hat was his hat, he was not given by any of us.

MR DEHAL: But you agree that he wore a hat to protect his identity because he was known in the area?

MR NDIMANDE: Yes, I do agree with that.

MR DEHAL: Thank you. Thanks Chair.

NO FURTHER QUESTIONS BY MR DEHAL

WITNESS EXCUSED

MR DEHAL: I call as the next applicant Mr Elijah Nyawuza, the father.

NAME:&#9;&#9;&#9;ELIJAH NYAWUZA

APPLICATION NO: &#9;AM3010/96

MATTER: &#9; &#9;MURDER OF MR LEMBEDE

----------------------------------------------------------------------ELIJAH NYAWUZA: (sworn states)

CHAIRPERSON: Yes, Mr Dehal.

MR DEHAL: Thank you Sir.

EXAMINATION BY MR DEHAL: Mr Nyawuza, you are the father of the first applicant, correct?

MR NYAWUZA: Yes.

MR DEHAL: My question was, are you the father of the first applicant, Mr Nyawuza?

MR NYAWUZA: That's correct.

MR DEHAL: And you stood trial at some stage together with your son and the other applicants in this matter on a charge of murder of Mr Lembede, correct?

MR NYAWUZA: That's correct.

MR DEHAL: Thank you. Now I show you on pages 34 to 40 of the main bundle an application. Do you confirm that this is your application for amnesty? Have a look at this.

MR NYAWUZA: Yes, I do.

MR DEHAL: Now in the consultation I had with you, I've been through this application with you. You recall that this application of yours talks about you being hired to transport certain persons who were going to kill the IFP members and you say this in paragraph 9(a)(i) on page 35 of the bundle. You did so on the 12th of June 1991, but you did not do anything but wait in the car for them to finish and then you took them back home. Remember that? Is that correct?

MR NYAWUZA: Yes, that is so, but I was not hired.

MR DEHAL: You also said in the next page, page 36, that after the killing, that's in the last sentence of the second paragraph thereof, you say after 30 minutes they came back and said:

&#9;&#9;"We must go because they got him".

Did you understand by that that Mr Lembede was executed, was killed?

MR NYAWUZA: That's correct.

MR DEHAL: So you knew as they returned to the vehicle that Mr Lembede was by then killed, correct?

MR NYAWUZA: That's correct.

MR DEHAL: See on page 37 of your application, under paragraph 9(c)(i) you say:

&#9;&#9;"I only heard in Court that Lembede died."

That can't be correct, can it?

MR NYAWUZA: No, that is not true.

MR DEHAL: Now I don't see - sorry. Firstly, your original application was formulated in the Zulu language with the application being one in the Zulu language as well, as contained on page 41 onwards of this bundle, but unfortunately Mr Chairperson, I see that the relevant page of 9(c) is missing, that means page 3 of the application is missing, all we have is on page 42 of the bundle, page 2 of the application, on page 43 of the bundle, page 4 of the application with page 3 missing in between, so I don't really have the Zulu to establish whether in fact the interpretation's correct or not, but be that as it may.

MS THABETHE: Come again. Where is that?

MR DEHAL: Page 42, page 43 of the main bundle, you'll see that that is page 2 and page 4 of the application and page 3 of the original application is not here and the reason I mention it ...

CHAIRPERSON: Nor are others, because if you go - page 43 is page 4, then page 44 and then page 45 has suddenly become page 7.

MR DEHAL: Indeed, page 4, 5 and 6 are all missing and page 7.

CHAIRPERSON: No, page 7 is there, page 45 is page 7.

MR DEHAL: Oh yes, indeed.

CHAIRPERSON: But page 8 is missing.

MR DEHAL: Correct.

CHAIRPERSON: How can that be?

JUDGE POTGIETER: ...(indistinct - mike not on)

CHAIRPERSON: It must originally have been on separate papers, not on both sides of the sheet and whoever made the photocopy has made a complete mess of it.

MR DEHAL: Yes. May I proceed Sir, I think this will be sorted out and nothing will turn on it, once you hear the rest of the evidence. Mr Nyawuza you are not able to read or write either Zulu or English, is that correct?

MR NYAWUZA: That's correct.

MR DEHAL: And that the original application albeit completed in Zulu was in fact dictated by you and hand-written by somebody else and you could not check the correctness of what he recorded but trusted that he who recorded same, did so in regard to what you told him verbatim and therefore signed it?

MR NYAWUZA: That's correct.

MR DEHAL: Now I take you to pages 24, sorry pages 2 to 4 of the additional bundle. Is that the affidavit that you recently deposed to whilst in custody, to one of the lawyers in the employ of the firm that I am from and do you confirm the contents thereof as correct?

MR NYAWUZA: That's correct.

MR DEHAL: Then may I take you now to pages 48 of the main bundle, being another affidavit, or what purports to be an affidavit? Can I just show you this? Mr Nyawuza, this is page 48 and 49 of the typed transcript of a hand-written affidavit on pages 50, 51 and 52. Do you recall this affidavit and do you confirm that this cross on page 51 is in fact yours, or is it not?

MR NYAWUZA: I do use a cross when I sign, but I do not know about the statement.

MR DEHAL: Now is it correct that having been - sorry, being contained in this bundle I together with some other lawyers in my office consulted with you on this statement, and you advised us that you do not agree with the contents of this and that this statement could at best have been formulated by those two persons of the TRC that visited you pursuant to which your application was withdrawn?

MR NYAWUZA: That's correct.

MR DEHAL: And when I read this statement to you, you said that apart from of course your name and the rest, your date of birth which you must have given to them, the contents do not accord with your version and is therefore incorrect. Do you agree?

MR NYAWUZA: That's correct.

MR DEHAL: In any case, even if the signature on page 51, being a cross, is yours and you said you have some doubts about that, you may have signed it without it being read to you, in any case you can't read and you did not read it, correct?

MR NYAWUZA: That's correct.

MR DEHAL: Thank you.

JUDGE POTGIETER: In other words, Mr Nyawuza, are you saying that this document that they put before us here, was made up by these people, these people that work for us? They made this entire story up, that is contained in this documents?

MR NYAWUZA: I did not make statements to TRC members in prison because there was a disagreement between myself and the male employee of the TRC, I only requested the lady to inform me of my rights and her companion said there was nothing that I could tell him about this incident because he knew about it because he had been based at the Isipingo Police Station and that was the reason why I decided, or I said I was not prepared to continue with the matter.

JUDGE POTGIETER: Oh it's the lady that has signed this statement that is before us, so are you saying that whatever is put in this statement, this lady made up herself?

MR NYAWUZA: I did not make a statement to them except to say that I was withdrawing from the TRC.

JUDGE POTGIETER: Yes.

MR NYAWUZA: Because we had a disagreement with her male companion. I wondered what he wanted because when I asked her to inform me of my rights, he said there was nothing that she could tell me, because we just killed somebody out of our own volition.

JUDGE POTGIETER: Yes, no I think I understand what you're saying. Ms Thabethe, is this person here?

MS THABETHE: She was in Bloemfontein, but I'm just writing a note to Penny to phone her because I think it's very, very important that she comes and testifies.

JUDGE POTGIETER: Please, please. Alright. Carry on.

MR DEHAL: Thank you. Whilst we're on this affidavit, Mr Nyawuza, may I just read paragraph 6 to you in which it said:

&#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."

Now would you have ever said something like this?

MR NYAWUZA: No.

MR DEHAL: Did you at all times intend to pursue your application for amnesty?

MR NYAWUZA: Yes.

MR DEHAL: And did you at all times harbour under the belief that both you and the deceased were politically involved, you on the ANC's side and he, the deceased, on the IFP's side and that the act of killing was a politically motivated act?

MR NYAWUZA: That's correct.

MR DEHAL: Thank you. You had in the original trial been granted bail and you had failed to attend the trial up to its completion, at some stage you stopped going to this Court, remember?

MR NYAWUZA: Yes, I do.

MR DEHAL: Is it correct that you were subsequently charged with the crime relating to the death of Mr Lembede in a separate Court convicted of that count of murder and sentenced, and this is why you're in custody today?

MR NYAWUZA: That's correct.

MR DEHAL: How many years were you given on sentence?

MR NYAWUZA: 15 years.

MR DEHAL: And when was that sentence handed down?

MR NYAWUZA: In the Supreme Court.

MR DEHAL: Yes, do you recall the date on which it was handed down?

MR NYAWUZA: On the 2nd of November.

MR DEHAL: Of which year?

MR NYAWUZA: 1995.

MR DEHAL: Thank you. Now what's your level of education?

MR NYAWUZA: I've never been to school

MR DEHAL: You are a businessman in this area that your son, you and the other applicants lived at, correct?

MR NYAWUZA: That's correct.

MR DEHAL: And do you agree with your active role in the ANC as described by your son and indeed by the last applicant, Mr Ndimande?

MR NYAWUZA: Yes, I do.

MR DEHAL: Briefly you attended the various meetings in the camps, correct?

MR NYAWUZA: That's correct.

MR DEHAL: You were active within the purvey of the ANC, you participated in their marches, in their demonstrations, in their placard carrying, in the delivery of protests and messages, etc.

MR NYAWUZA: That's correct.

MR DEHAL: And you received instructions from your senior to eliminate Mr Lembede and acted in the pursuance of those instructions albeit only by driving the vehicle and the persons to the shop and back. Correct?

MR NYAWUZA: That's correct.

MR DEHAL: So to the extent that it relates to you, you confirm the evidence of the last two applicants as correct, is that correct?

MR NYAWUZA: That's correct.

MR DEHAL: Sorry, bear with me Sir. Thank you Sir, just one aspect. Mr Nyawuza, when you were retried you know on the second trial when you came to be arrested, charged alone and convicted on this count relating to the death of Mr Lembede, you had pleaded guilty, is that correct?

MR NYAWUZA: That's correct.

MR DEHAL: And contained in the main bundle on pages 57 onwards, is a Section 112 statement of yours, page 57, 58, 59, may I show you this? Have a look at this. That's a typed statement, although not signed by you, obviously handed, sorry I see signed by you. Do you see that statement? Was that your statement at the time? In Court yes.

MR NYAWUZA: Yes, I did make a statement in Court.

MR DEHAL: Now why did you plead guilty and why did you admit to all these events as being criminal as opposed to political, contrary to what you are today telling this Committee?

MR NYAWUZA: I expressed a problem with the prosecutor, the investigating officer and the Judge. They informed me that I should also admit guilt because my co-accused had done the same and they had already been sentenced. It was for that reason why I admitted guilt.

CHAIRPERSON: Are you saying the Judge told you you should admit guilt?

MR NYAWUZA: It was not the Judge but the prosecutor and the interpreter who told me that there was no need for me to deny any charges because my co-accused had already admitted guilt and had been sentenced.

MR DEHAL: And were you represented in this trial by any lawyer?

MR NYAWUZA: It was an attorney who had been provided by the State, he also came to me whilst I was still in the holding cells to take a statement. He said that there was no need for me to make a statement because my co-accused had already been sentenced.

MR DEHAL: And when you discussed this matter with your pro deo counsel, did you get the impression that he was aware about your co-accused, the other two applicants, Ndimande and Meyiwa and that these two were convicted in a Court hearing prior to this?

MR NYAWUZA: Yes, he knew that.

MR DEHAL: And did you tell your pro deo counsel that this act was political in nature?

MR NYAWUZA: I was unable to tell him because at that time we used to be oppressed by attorneys and Judges of the apartheid era. I was afraid that if I revealed that my sentence would be more.

CHAIRPERSON: This was in November 1995?

MR NYAWUZA: Yes, I was sentenced in November 1995.

JUDGE POTGIETER: Where did this information come from that is contained in this document, explanation of plea, as the lawyers call it?

MR NYAWUZA: What are you referring to?

JUDGE POTGIETER: This document that your lawyer now spoke, Mr Dehal was speaking about, that you signed with a cross on pages 57 to 59 in the bundle of documents before us here. Where did all this information come from?

MR NYAWUZA: Most of what is contained here was done in Court.

JUDGE POTGIETER: Yes, but who gave this information that is typed in this document here?

MR NYAWUZA: Whatever I stated then, was to protect myself against conviction.

JUDGE POTGIETER: No it couldn't have protected you against conviction because you're admitting guilt, you were pleading guilty. You understand?

MR NYAWUZA: Yes, but I was trying to protect myself.

JUDGE POTGIETER: Yes, but I'm going to come back to the question that I am interested in really, all of this information in this document, where did it come from? Who gave this information?

MR NYAWUZA: I can say that I don't know what is written in the statements because they did not read them back to me and I cannot read as well. I was just prosecuted, informed that I killed Mr Lembede.

JUDGE POTGIETER: Wait we'll just ... That information there, didn't you give it to - are you not the source of this information, don't you know where it comes from?

MR NYAWUZA: I'm the person who gave them the statement, as I've already stated the reason why I stated what I stated then.

JUDGE POTGIETER: Yes, yes thank you.

MR DEHAL: Thank you Chairperson, there's nothing further then.

NO FURTHER QUESTIONS BY MR DEHAL

CHAIRPERSON: Any questions?

MR PANDAY: No Mr Chairman.

CHAIRPERSON: Any questions?

MS REDDY: Yes, Mr Chairperson.

CROSS-EXAMINATION BY MS REDDY: How long were you a member of the ANC organisation prior to the killing in question?

MR NYAWUZA: It had been for a long time.

MS REDDY: Can you tell us how many years?

MR NYAWUZA: I think from about 1989.

MS REDDY: What position you held in the ANC?

MR NYAWUZA: I was a full member of the ANC.

MS REDDY: Did you occupy any official positions?

MR NYAWUZA: No, I did not.

MS REDDY: Do you have a membership card?

MR NYAWUZA: I used to have a card that was issued to me when I joined.

MS REDDY: Where's your card presently?

MR NYAWUZA: It is at home.

MS REDDY: Why you didn't bring it with you today to this amnesty hearing?

MR NYAWUZA: I cannot contact my family because my brother is ill.

MS REDDY: Did you ask anyone who knew of your political affiliation to come here today and corroborate your evidence?

MR NYAWUZA: I did not call anyone because I had requested an inmate to send word to the area, but I was informed that many people had fled the area so most of the people were not there because I was looking for a certain Mr Mtemba. I myself had been enforced to leave Nzamane to ...(indistinct)

MS REDDY; Who was the leader of the ANC in 1991?

CHAIRPERSON: Where, which area?

MS REDDY: The one - the area in question today where the applicant actually resides.

MR NYAWUZA: It was Mr Mthambo and he worked together with people like Mr Mbambo.

MS REDDY: Did you know Mr Lembede prior to the killing?

MR NYAWUZA: No.

MS REDDY: Who gave you instructions to actually kill the deceased in the matter?

MR NYAWUZA: Mr Mkhize, Mbambo, Ndimande and Mthambo arrived at my home and Mr Mthambo informed me that I should take these people to Ngonyameni to eliminate a certain person who was arming the IFP. Indeed they did arrive at my home on a Friday after ...(indistinct) and we left. That was after the arrival of Mr Mkhize, Mbambo and Mr Mahlane. When they arrived I and Emanuel were at home and they informed us that we should leave and we would collect Mr Meyiwa along the road. We left and collected Meyiwa along the road and proceeded.

MS REDDY: Do you know why your companions actually chose a Friday?

MR NYAWUZA: As far as I could tell, the person who was going to show us the place, was employed and he came from work quite late. I think that was the reason why Mr Mthambo decided on a Friday.

MS REDDY: And do you know why they chose the shop to actually attack the deceased?

MR NYAWUZA: I did not know where the shop was.

MS REDDY: Did you know why they chose the shop?

MR NYAWUZA: Mbambo said we should not go attack him at his home because that is where the weapons were stored, so we might encounter problems if we go there. It was better to confront him at the shop where he was working.

MS REDDY: Mr Nyawuza, I full appreciate the fact that you were not present at the time when Ndimande and two others were tried, but I draw your attention to page 69 in the judgment of Justice Didcott and I quote:

&#9;&#9;"That Elijah Nyawuza was the ring leader of the entire gang."

Can you just respond to that?

MR NYAWUZA: Yes, I can. The Judge may have said so because I am the person who transported them there and there was no one who could have taken them there except for myself.

MS REDDY: Just one short interruption. Members of the Committee, my learned colleague sitting next to me, Thabile, actually needs a short adjournment.

COMMITTEE ADJOURNS

ON RESUMPTION

MR DEHAL: Thank you Chair, I think he's still being cross-examined.

ELIJAH NYAWUZA: (s.u.o.)

CROSS-EXAMINATION BY MS REDDY: (cont.)

&#9;Mr Nyawuza, I just need a little bit of clarification of one aspect. Why did you initially withdraw your application for amnesty?

MR NYAWUZA: We disagreed with the person who was with another ... (indistinct) investigator. He said he knew about this offence and there was nothing that they could tell me with regards to my rights.

ADV SANDI: Sorry, let's get this more cleared up. Did you in fact withdraw your application before?

MR NYAWUZA: Yes. When the lady asked me what do I say about what he is saying, I said: "I'm withdrawing" and I explained to her that I have served my sentence and I'm continuing to serve my sentence and that is what she wrote down. That was the only thing I said to her, but I do not know about all that is written in the statement.

MS REDDY: Mr Nyawuza, I need your assistance. Did Joshua Cele influence you to withdraw your application and if your answer is yes, in what way?

MR NYAWUZA: As I have already stated, when they arrived, Sheila said: "Please explain to him his rights and what we are here for", after she had introduced themselves. However, Mr Cele said he could not explain anything to me because these people just went out to kill an innocent person. At that time, he said, he was based at Isipingo, that is why I decided not to continue co-operating with them and just decided to withdraw.

CHAIRPERSON: Did he tell you he'd been a policeman?

MR NYAWUZA: Yes. He said he had been based at Isipingo at the time.

CHAIRPERSON: As a policeman?

MR NYAWUZA: That's correct.

CHAIRPERSON: And that this was not a political matter?

MR NYAWUZA: Yes, he said so.

MR DEHAL: Sorry, Chair, could I just interject. For reasons that we discussed in chambers, could my assistant be excused?

CHAIRPERSON: Certainly.

MR DEHAL: Thank you. I'm indebted to you.

CHAIRPERSON: On the condition that you come back tomorrow.

MR DEHAL: Indeed.

CHAIRPERSON: Any further questions?

MS REDDY: In Mr Cele's affidavit, he states that - just one second, and I quote:

&#9;&#9;"I did not cause him to make any withdrawal. I had no interest whatsoever, whether he goes on with his application or not and that is not for me to decide upon."

It seems that according to Mr Cele, he gave us a statement under oath that he didn't cause you to actually withdraw your application, so can you just give us any more information to elaborate or to support what you have just related to us just now?

MR NYAWUZA: It puzzles me that he should say so because when we were here earlier on, when we went to eat somewhere around the offices, he repeated the statement and they had an altercation with Meyiwa, he said the same thing that there is nothing that he can discuss or say to us because we had killed an innocent person who had done nothing and he knows that person and at that time he was based at the Isipingo Police Station.

CHAIRPERSON: When did this happen?

MR NYAWUZA: When we came here earlier on for our amnesty applications and were told to return at a later date. There was somebody who was a prosecutor, a short ...(indistinct) guy, although evidence ...(indistinct) at that time was a gentleman. He mentioned this when we were in the offices and it was obvious that he was upset and annoyed about it. He did not even want to speak to us, we ended up speaking with Sheila.

MS REDDY: Mr Nyawuza, I put it to you that the reason you withdrew, the possible reason and the most probable reason that you withdrew your application for amnesty, because here you were confronted with somebody who knew about the offence in question and plus you felt that the basis of your application would be unsuccessful. How would you respond to what I just put to you?

MR NYAWUZA: That is not true. Had that been the case, I would not have requested to reopen my case because after that I wrote to the Cape Town office, stating the reasons why I had withdrawn my application. He showed it to me that whatever he was going to do, it was going to be against my interest, that is the attitude that he displayed. I realised then that he was not objective. It seemed that he had interests somewhere because he said he knows this person, that is why I felt that I could not make statements to him that he would perhaps change, because even the statement that is before the Committee is a long one whereas the only thing I told them was that I was withdrawing because I have served part of my sentence. Those were the only words I said to them. It puzzles me to see a statement that is so long. It shows that had I made a statement to him, he would have edited or changed the statement.

MS REDDY: I actually appreciate what you have said. Did you report the misconduct on the part of Mr Cele after he interviewed you?

MR NYAWUZA: I informed the policeman who had taken me there to the TRC offices when he inquired on why I was leaving so quickly, I told him that I could sense that Mr Cele had an interest in the matter, he seemed to be sympathetic to the family of Mr Lembede that is why I left so suddenly. The policeman said I was wrong to withdraw the application, I should have requested somebody else from the TRC to handle the case. That is why when I went into prison, I wrote a letter requesting the TRC to reinstate my application.

MS REDDY: No further questions thank you.

NO FURTHER QUESTIONS BY MS REDDY

MS THABETHE: Thank you Mr Chair.

CROSS-EXAMINATION BY MS THABETHE: Mr Nyawuza, did your lawyer tell you what is on the statement that Sheila signed as a statement that was written by you, or commissioned, ja commissioned?

MR NYAWUZA: Yes, he did.

MS THABETHE: So is it your evidence today that you never informed Sheila that you were asked by your neighbour Mahlane Mbambo to transport him and Meyiwa, Ndimande and Mkhize to Ngonyameni Reserve?

MR NYAWUZA: I told her the Mkhize, Mbambo and Mthambo and Ndimande came to my home to pick me up. When they arrived at home, I was with my son. I took the car keys.

MS THABETHE: Just hang on, I want to lead you on this because you see I want to get exactly what you said to Sheila and what you didn't say to her, so my question right now is this one: Didn't you say to Sheila that you were asked by Mahlane Mbambo to transport him and his neighbours, Meyiwa, Ndimande, Mkhize to Ngonyameni Reserve, didn't you say that to Sheila? Just on that point.

MR NYAWUZA: I did say so.

MS THABETHE: Didn't you say to her that you decided to take your son, ...(indistinct) Nyawuza to accompany you with these people?

MR NYAWUZA: Yes, it was like that but I didn't know at the time that he had already been elected in the meeting to go. The reason that I didn't ...(intervention)

MS THABETHE: Sorry Mr Nyawuza, I just wanted to know did you tell Sheila that you asked your son to accompany you? I'll come to the reasons why you asked him.

MR DEHAL: No, I think it's fair for him to say why he said it right here now.

MS THABETHE: But that's not what I've asked.

MR DEHAL: Well indeed ...(intervention)

MS THABETHE: ...(indistinct - speaking simultaneously) he said it. I'm coming to that.

MR DEHAL: May I just finish? It's my argument that it's his right to say it fully and properly, he should not be intimidated.

CHAIRPERSON: He's not being intimidated. He said he said it. We're just trying to get what's in this document. You can then ask him: "Why did you say it?"

MS THABETHE: Thank you Mr Chair.

CHAIRPERSON: You've told us, and do I understand you correctly that you did tell this woman, that you then decided to take your son Pops to accompany you with these people?

MR NYAWUZA: Yes, I did.

CHAIRPERSON: Now why did you tell her that? Was it the truth?

MR NYAWUZA: Yes, it was true and I did tell her so.

MS THABETHE: Did you also tell her that at that time you were staying in Nzamane Reserve?

MR NYAWUZA: Yes.

MS THABETHE: Did you also tell her that you did not know the place called Ngonyameni?

MR NYAWUZA: Yes, I did.

MS THABETHE: Did you also tell Sheila that you charged them R60 for taking them and that you only learned then that the motive for the trip was to go to kill Mr Lembede because he was an IFP who was aiding people to kill ANC?

MR NYAWUZA: No, I didn't say anything about money. I used to take them everywhere whenever they came and requested me to take them, because this is what I used to do as a member or supporter of the organisation if they were on any organisational mission, I will help them.

CHAIRPERSON: Didn't you need money for petrol?

MR NYAWUZA: No. My job was to sell goods, this is how I used to help the organisation. Even if, whenever we were supposed to buy weapons or firearms, I used to contribute money. In fact my contribution was higher than other people's contributions.

MS THABETHE: So I would be correct if I say it's not true that you told her that you charged them R60 for the petrol for taking them. He also says that in paragraph 5. I'm just covering the whole point.

MR NYAWUZA: No.

MS THABETHE: Okay. Did you tell her that you only learned that the motive for the trip was to go and kill Mr Lembede because he was IFP and he was helping people in killing the ANC? Did you also tell her that?

MR DEHAL: Sorry, only then learned, that means at the time when ...(intervention)

MS THABETHE: Please ...

MR DEHAL: The word then was missing in your statement, I'm just correcting you.

MS THABETHE: I did actually say then.

CHAIRPERSON: I don't think I heard it.

MR DEHAL: I didn't hear it.

CHAIRPERSON: I think you should put the next sentence too.

MS THABETHE: I actually said: "Did you then ..." - sorry, "did you tell Sheila that ..." ...(intervention)

CHAIRPERSON: I think you should ask him, did you tell her that you only learned of the motive after you got the money and when you were on the trip, that this was to kill Mr Lembede because he was IFP and aiding IFP people and this was discussed in the vehicle?

MR NYAWUZA: I only found out at home. Sheila questioned me as to whether I used to charge them if I had transported them and I told her that sometimes they used to give me money for petrol and she questioned me to estimate how much petrol I've used to go to the place and I estimated that it could have been R60, not that I had charged them R60. She questioned me how much petrol had I used going there.

CHAIRPERSON: We're not talking about petrol anymore, what I'm asking you now is, did you tell her that it was only after you had decided to go with them that you learned that the motive for the trip was to go and kill Mr Lembede because he was IFP and was aiding the IFP people in killing the ANC? Did you tell her that?

MR NYAWUZA: Yes, I did say so.

CHAIRPERSON: And did you tell her that this was discussed in the vehicle while you were on your way to Ngonyameni?

MR NYAWUZA: I did say in the car it was discussed.

CHAIRPERSON: Carry on.

MS THABETHE: Thanks. So, if I hear you correctly, what you are saying Mr Nyawuza is that you first discovered it at home and then you also discussed it on your way to Ngonyameni, is that correct?

MR NYAWUZA: At home I was just told that I should take the group to Ngonyameni because they were going to do something there and then on our way, it was discussed as to who is going to take what position because in the discussion I did hear that some people were going to be outside and some were going to enter the shop, because they also thought that there might be other people inside the shop.

MS THABETHE: Did you also tell her that you did not take part in the planning to kill Lembede as you did not know him?

MR NYAWUZA: Yes, it is true, I wasn't present in that meeting where it was planned.

MS THABETHE: Did you know Mr Lembede?

MR NYAWUZA: No.

MS THABETHE: Did you also tell her that you did not seek to achieve any political objective in this involvement?

MR NYAWUZA: She questioned me as to whether it was my intention to go and kill Mr Lembede and then I answered back and told her that I didn't know Mr Lembede but since it was an organisational mission, I didn't have anything to do with it.

MS THABETHE: Did you also tell her that the whereabouts of Mahlane Mbambo and Mkhize Joseph are unknown to you, at that stage? Did you tell her that you did not know where Mahlane Mbambo and Mkhize Joseph are?

MR NYAWUZA: Yes, I did.

MS THABETHE: Okay. Did you also tell her that you had heard Mkhize died later?

MR NYAWUZA: Yes.

MS THABETHE: Okay. Did you also tell her that they were both employed by Toyota in Prospectum and that they had become State witnesses, or they became State witnesses?

MR NYAWUZA: Only one person was employed by Toyota. I didn't know Mkhize's employment. I knew Mbambo was employed by Toyota.

MS THABETHE: Did you also tell her that Meyiwa is in Medium B Westville Prison?

MR NYAWUZA: Yes.

MS THABETHE: Ndimande and Bobs Nyawuza are in Medium Prison, did you also tell her that?

MR NYAWUZA: Medium C.

MS THABETHE: It says Maximum prison here. Medium C.

MR NYAWUZA: Yes.

MS THABETHE: Okay. Did Sheila - okay, there's something. Did you also tell her that you now strongly believe that this activity was not political because you had learned later that the victim was not involved in any political organisation? Did you tell her that?

MR NYAWUZA: No, I didn't.

MS THABETHE: Did you tell her that you were an ANC member?

MR NYAWUZA: Yes.

MS THABETHE: You've stated the reasons why you decided to withdraw your application, so I won't ask you anything about that. Now did Sheila ask you to sign a statement after that?

MR NYAWUZA: Yes.

MS THABETHE: And did you sign it, did you put a cross?

MR NYAWUZA: Yes.

MS THABETHE: Before she signed the statement, did she read it to you what she had written?

MR NYAWUZA: I wouldn't be able to remember whether she read it to me. So many things are happening in prison, I don't remember whether she read it or not.

ADV SANDI: But you did put the cross on the statement, didn't you?

MR NYAWUZA: Yes, I did.

ADV SANDI: Why did you do that?

MR NYAWUZA: Because I can't write.

ADV SANDI: If - just explain that. You say you put your cross on that statement and the reason for that was because you cannot write?

MR NYAWUZA: Yes.

ADV SANDI: If you were able to write, do you mean to say that you would have signed this statement and not put a cross mark on it?

MR NYAWUZA: Yes.

ADV SANDI: Did you agree with the statement?

MR NYAWUZA: Yes.

MR PANDAY: Sorry, Mr Chairman, just to clarify. I think the question that was put to Mr Nyawuza was that did Sheila read the statement back to you and if my memory serves me right it's that his answer was that there were so many things going on in prison, he ...(intervention)

MS THABETHE: He says he can't remember.

MR PANDAY: He can't remember. I think you question directed to him is that it would appear that he put the cross after the statement was read to him. Just to clarify the position.

MS THABETHE: He says he can't remember. Mr Nyawuza, I just want to find out something. Would I be correct in saying that everything that you told Sheila is true?

MR NYAWUZA: Yes, I would say so. Like I've explained, I've been in prison for a long time, therefore my memory is impaired somehow because sometimes I easily forget things that I've said, but I do remember that I gave Sheila my statement and she wrote it down.

MS THABETHE: What I ...(intervention)

CHAIRPERSON: Do you now remember making this statement to Sheila and she wrote it down...

INTERPRETER: The speaker's mike is not on.

CHAIRPERSON: Do you now remember that you made this statement to Sheila and she wrote it down?

MR NYAWUZA: Yes, I do remember.

CHAIRPERSON: And do you remember if you were asked to make your mark after she had read it back to you?

MR NYAWUZA: I do remember her telling me to sign the statement, but I don't remember whether she read the statement, but if that's a usual procedure for one to read the statement, she probably had read the statement for me before I could sign it.

CHAIRPERSON: Any more?

MR DEHAL: Sorry Chairperson, I'm just a little concerned that Sheila might be traversing the entire length and breadth of this country to travel here. It would be unnecessary in view of his last admissions and I don't think there's any point in her coming in here.

CHAIRPERSON: Well, I mentioned that to my colleague. It struck me that ...(indistinct)

MS THABETHE: The mike is not on.

CHAIRPERSON: What appeared to be a very serious matter has become trivial.

MR DEHAL: Indeed.

CHAIRPERSON: Of no importance.

MR DEHAL: Correct. I think she should be timeously advised not to traverse this length.

MS THABETHE: What about the intimidation allegations that have been made against Sikumbuso Cele because they are coming back together? Shouldn't he be given an opportunity to set the record straight.

MR DEHAL: I think the issue about Cele still remains but not at all about Sheila.

CHAIRPERSON: I gather they are travelling together.

MR DEHAL: I think it's unnecessary for Sheila to be present here, perhaps she does not have to go through that arduous journey and just Cele himself.

CHAIRPERSON: Well we can talk ...

MS THABETHE: Just last question Mr Chair.

CHAIRPERSON: If we can just finish the evidence.

MS THABETHE: Mr Nyawuza, would I be correct then to say your role in the killing of Lembede was that you drove them back and you never went inside the shop. Would I be correct to say that?

CHAIRPERSON: Isn't that the version, all the versions we've heard?

MS THABETHE: I just want him to confirm.

MR NYAWUZA: It is so.

MS THABETHE: Thank you.

NO FURTHER QUESTIONS BY MS THABETHE

CHAIRPERSON: Re-examination?

MR DEHAL: None, thank you.

NO RE-EXAMINATION BY MR DEHAL

CHAIRPERSON: Thank you.

MR PANDAY: Mr Chairman, I've just got one point to clarify. 

CROSS-EXAMINATION BY MR PANDAY: Mr Nyawuza, as you were giving or relating the story to Sheila, did she write as you spoke, can you remember that?

MR NYAWUZA: As I was relating, she would listen and then start writing and she will question again and I will answer and she will listen and then write again.

MR PANDAY: And when you got to the end of talking, did you then put your X on the statement?

MR NYAWUZA: Yes.

MR PANDAY: Thank you.

MR NYAWUZA: She did question me if that was all and I said: "Yes" and she requested me to put a cross or to sign.

MR PANDAY: Thank you.

NO FURTHER QUESTIONS BY MR PANDAY

CHAIRPERSON: Right.

WITNESS EXCUSED

CHAIRPERSON: I gather that certain of us have appointments. We wish to make arrangements for tomorrow. What time tomorrow? 9 o'clock? 9 o'clock.

MR DEHAL: That suits me fine. I think Ms Reddy wants to ...(indistinct) a reservation.

MS REDDY: May I just interject? I didn't actually foresee that this matter was going to go on tomorrow because I did advise the TRC offices that I was very much engaged this whole week but I was actually indulging the TRC today and what I'm going to do is I'm going indulge the TRC as priority again tomorrow but if I run like 15 minutes late, I just ask your indulgence once more.

CHAIRPERSON: 15 minutes maximum.

MR DEHAL: Sorry Chair, can I just ask, if there be difficulties on my side and I don't envisage any, could I have Miss Mohammed sit in? She's familiar with the matter and has been assisting.

CHAIRPERSON: Ja.

MR DEHAL: Thank you.

CHAIRPERSON: 9 o'clock tomorrow morning.

COMMITTEE ADJOURNS

