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

&#9;AMNESTY HEARING

DATE:&#9;8TH FEBRUARY 1999

NAME:&#9;MBONGENI OTTO TSHABANGU

APPLICATION NO:&#9;AM7152/97

DAY:&#9;&#9;5

--------------------------------------------------------------------------ADV STEENKAMP: Thank you Mr Chairman. May I apologise for starting late again this morning, Mr Chairman. We are ready to proceed. Mrs Nhlayisi is prepared, and we are ready to start with the first applicant. Thank you Mr Chairman.

CHAIRPERSON: Mr Steenkamp, I see there is no headphones for the public.

ADV STEENKAMP: Mr Chairman, they are in the process, I think they received them late, and they are in the process of handing them out just now, thank you sir.

CHAIRPERSON: Yes Mrs Nhlayisi?

MRS NHLAYISI: Thank you Mr Chairman. The first application for the day is application AM7152/97, appearing on page 219. The applicant's name is Mbongeni Otto Tshabangu.

&#9;The applicant is applying for amnesty for murder and possession of unlicensed firearm and ammunition. His ID number is 711112 5362 08 5.

ADV STEENKAMP: Mr Chairman, may I be so rude as to interrupt. There is also further particulars which appears in the supplement bundle 2, it is the white bundle, on page 90 to 91. On page 90 is the further particulars and on page 91 is actually the request for the particulars, thank you Mr Chairman.

CHAIRPERSON: Mr Tshabangu which language would you like you use?

MR TSHABANGU: Zulu.

MBONGENI OTTO TSHABANGU: (sworn states)

EXAMINATION BY MRS NHLAYISI: Mr Tshabangu, you were a member of the SDU's in Mandela Section in Tokoza, is that correct?

MR TSHABANGU: Yes, that is correct.

MRS NHLAYISI: When did you join the SDU's?

MR TSHABANGU: I joined in 1991.

MRS NHLAYISI: Who was your Commander at that stage?

MR TSHABANGU: My Commander was Bonga Nkosi.

MRS NHLAYISI: You have brought an application for amnesty relating to the death of one Khumalo. Can you tell this Committee what was your involvement in this incident?

MR TSHABANGU: The role I played in this incident, killing of the deceased, I arrived at that house, number A33 in Tokoza. The victim was already captured, he was sitting in the dining room.

CHAIRPERSON: When would this have happened?

MR TSHABANGU: It happened in September 1993.

MRS NHLAYISI: You said you arrived at house number A33 Mazibuko Street in Tokoza, and you found the victim there. What was happening with the victim at that stage?

MR TSHABANGU: He was being questioned and he was being assaulted at the same time, because of his involvement in Mandela Section, after it was discovered he had a card written Zulu Police and his surname was written as Khumalo and he was related to Khumalo, Bishop Khumalo who was a leader of the Khumalo gang in Tokoza.

MRS NHLAYISI: On your arrival at this house, who were the people who were present there, busy questioning the victim, can you remember the names?

MR TSHABANGU: There were a lot of people. I can remember the following, the late Jeremiah Masilela, Boy Gamede, Charlie, Stokfela, these are the only people I can remember. I cannot remember the others.

MRS NHLAYISI: On your arrival, what did you do personally to the victim, if there is anything that you did?

MR TSHABANGU: When I arrived there, I came closer to him. I asked questions and I wanted to know why was he there, being Khumalo and as he was also related to Bishop Khumalo and he was also coming from kwaZulu Natal and he was also a member of the Zulu Police.

&#9;He said he went there to check the place. He had some resistance, I had a stick in my right hand and I used my right hand to hit him on the head. I cannot remember how many times did I hit him. After that, I was wearing training shoes and I kicked him on his ribs on the left hand side.

MRS NHLAYISI: Did you question him?

MR TSHABANGU: Yes, I did question him, I wanted to know, as he was not the resident of Tokoza, why was he there in Tokoza at the time. He said to me, he first said that was none of my business because I did not even know him.

&#9;I hit him and I kicked him on his ribs. I was not alone, the others were also assaulting him. He told us that he was there, to surveil the place, because he was not staying there. He wanted to check the conditions and the living area, he wanted to know how dangerous was the place. He was sent down there to surveil the living area.

MRS NHLAYISI: Did he tell you who had sent him to surveil the area and what was the purpose of him coming there to surveil the area?

MR TSHABANGU: He did not say who sent him there, he told us he was from Khumalo Street, next to the hostel, next to Madala hostel in Tokoza and he told us that he was from the Khumalo family and he emphasised the fact that he was related to Bhekinsele Khumalo.

MRS NHLAYISI: What was the impression that you got from his answers that he was related to Khumalo and he was from Madala hostel, what did you conclude then?

MR TSHABANGU: First of all, Bishop Bhekinsele Khumalo and his Khumalo gang were the people who were fighting the community of Tokoza, and the Khumalo gang was involved in violence and during that violence, Bishop Khumalo was staying with the IFP members and they were harassing the community.

&#9;It occurred to me that as he was related to Khumalo and he was coming from that area of IFP, I later realised that we are in danger. We might be involved in danger, or we might even die because of him and the situation.

MRS NHLAYISI: So for that reason, then it was decided that he fell in the enemy camp, is that correct?

MR TSHABANGU: Yes, that is correct.

MRS NHLAYISI: What happened to him after you had assaulted him, do you know?

MR TSHABANGU: I left the house, he was still alive in the house although he was already injured. I later heard from the late Sicelo, Welcome Qoka, he told me that after a few minutes, he shot him, he shot the victim. The same person that I participated in assaulting and questioning.

MRS NHLAYISI: So at the time when he was killed, you were no longer there?

MR TSHABANGU: No, I was not there. I was at home.

MRS NHLAYISI: Did you fully associate yourself with what happened after you had left?

MR TSHABANGU: Yes, I do. I associate myself with the action, I was a member of the SDU in Tokoza and if I would be arrested, I would be arrested as a member of the SDU and I was not against the actions. I was not against the SDU's fighting the IFP members.

MRS NHLAYISI: So, what you are saying is that although you didn't physically carry out the killing of this particular person, but you were in full agreement with what happened to him?

MR TSHABANGU: Yes, that is correct, to such an extent that in the meetings, the SDU meetings that were there, the only thing that was discussed, amongst the things that were discussed was the fact that if we happened to get a person from IFP, that particular person should be killed, therefore I agree with the statement.

MRS NHLAYISI: And you have earlier indicated that you did assault him by hitting him with a stick and kicking him. Can you be in a position to say today whether your contribution didn't cause his death in any way?

MR TSHABANGU: I cannot be so sure, but I agree because I did assault him. I only contributed by assaulting him and then he was later killed.

MRS NHLAYISI: Mr Tshabangu, you have also applied for possession of unlicensed firearms and ammunition. You have also submitted a supplementary affidavit to your main application, where you state that at some stage, you participated in patrolling the streets of Tokoza and you carried an AK rifle with you during those patrols. Is that correct?

MR TSHABANGU: Yes, that is correct. I was in possession of an AK47 and I was also patrolling and wanted to make sure that the living area was safe enough.

MRS NHLAYISI: Who issued you with an AK47?

MR TSHABANGU: I got it from the Commander of our Section, Mr Bonga Nkosi.

MRS NHLAYISI: Further in your supplementary affidavit, you mention that on one occasion, you remember that you were in charge of a house where weapons were stored, is that correct?

MR TSHABANGU: Yes, that is correct. It happened one day, although I cannot remember the date and the time, there was a funeral in the township of Tokoza. The people, a lot of people attended the funeral and I was there, in charge of making sure that the place was safe and I was in this house, number A15 Legone Street. I was told that there were weapons there.

&#9;For in case of eminent attack, I would be able to use those weapons. In this house, number A15 Legone Street, there were AK47's, three of them loaded. They were in that house that I was safeguarding.

MRS NHLAYISI: Mr Tshabangu, is there any other incident that you can remember for which you wish to apply for amnesty, except those that you have mentioned now?

MR TSHABANGU: No, there is no other incident.

MRS NHLAYISI: Okay, let's go back to the first incident, the person you say you knew him as Khumalo. Do you know his full identity like names and things, were you in a position to get hold of that or you only know him as Khumalo because he said he was the brother to Bishop Khumalo?

MR TSHABANGU: We did not get his name. We heard that from him that he was from the Khumalo family and he was related to Bishop Khumalo. Till today, we did not get his name.

MRS NHLAYISI: Mr Chairman, that is all for now, I have nothing further.

NO FURTHER QUESTIONS BY MRS NHLAYISI

ADV STEENKAMP: Mr Chairman, I don't have any further questions. I must apologise I was referring you to page 90 and 91 of the additional supplement, which is actually incorrect. I was actually referring you to Mr Mbongeni Otto Tshabangu, which is actually before you. You can see it is the same surname, so I do apologise profusely Mr Chairman. It is actually the additional statement of Mr Mbongeni Otto Tshabangu.

&#9;It is not the same Tshabangu which is appearing on page 90 to 91. I do apologise. I don't have any further questions, thank you Mr Chairman.

NO CROSS-EXAMINATION BY MR STEENKAMP

CHAIRPERSON: Mr Steenkamp, where would we find the one that we were supposed to be looking at? Exhibit 4?

ADV STEENKAMP: Mr Chairman, if you will allow me, I can hand in a copy of the statement to you.

CHAIRPERSON: Have we not got it?

ADV STEENKAMP: Yes sir, it was handed to you last week in a bundle, but I will ...

CHAIRPERSON: Are we talking about bundle, Exhibit 4?

ADV STEENKAMP: Yes Mr Chairman.

CHAIRPERSON: This one?

ADV STEENKAMP: Yes, that is Mbongeni Otto Tshabangu. The top one was Moses Mduduzi Buboka.

ADV STEENKAMP: Mr Chairman, I will give you the correct one just now, that is the correct statement I am referring to now, which my colleague has referred to as well, that is the actual supplementary statement.

CHAIRPERSON: Very well. Let's make that Exhibit 5 then.

ADV STEENKAMP: Thank you Mr Chairman. I've got no further questions, thank you Mr Chairman.

ADV GCABASHE: Thank you Chair. Mr Tshabangu, Bonga Nkosi, which area was he a Commander of, just remind me?

MR TSHABANGU: Bonga Nkosi was a Commander at Mandela Section where I was residing.

CHAIRPERSON: The Mandela Section?

MR TSHABANGU: Yes.

ADV GCABASHE: Was Mandela Section close to Penduka, that is the Slovo Tambo Section?

MR TSHABANGU: Mandela Section is not far from Tambo Section, Mandela Section, Tambo Section is just after Mandela Section.

ADV GCABASHE: Do you know where this Khumalo victim, this particular person, the deceased, was captured?

MR TSHABANGU: Will you please repeat your question Ma'am?

ADV GCABASHE: The Khumalo that was killed, the victim here, the deceased, where was he captured, do you know?

MR TSHABANGU: No, I don't know. All I heard is that he was captured next to the bottle store, the bottle store that was next to the Tokoza municipality offices, that was next to Mandela Section where I used to stay.

ADV GCABASHE: You mentioned in your testimony that amongst the things that you discussed, was the fact that IFP members who were captured, should be killed. Did I get that right?

MR TSHABANGU: Yes, that is correct.

ADV GCABASHE: Was that a general position that was taken by your SDU, vis-a-vis IFP members?

MR TSHABANGU: Yes, that is correct, that was an agreement.

ADV GCABASHE: Would you know if it was also the attitude of all the other SDU formations in Tokoza itself, it was generally know, IFP people will be killed?

MR TSHABANGU: Yes, that was a general feeling in the whole township. Meetings would be held and it would be discussed that if the IFP member would appear, that person should be killed without asking questions.

ADV GCABASHE: Then finally I didn't get the name of the person who actually shot Khumalo after you had assaulted him. I just want that name?

MR TSHABANGU: The person who came to me to tell me that he is the one who killed the deceased, his name is Sicelo Welcome Qoka.

ADV GCABASHE: Thank you very much. Thank you Chair.

MR SIBANYONI: Thank you Mr Chairperson. Where is this Sicelo Welcome Qoka presently?

MR TSHABANGU: He passed away last year if I am not mistaken, the month was May 1998.

MR SIBANYONI: You said this Khumalo was asked and assaulted in that particular house, did he say, was it as a result of the assault that he said he was related to Bishop Khumalo or was that information which he volunteered?

MR TSHABANGU: He said that as he was being assaulted, as he was being asked about his identity. He said again after he was assaulted, that he was coming from the Khumalo family and he was related to Bishop Khumalo, the leader of the Khumalo gang.

MR SIBANYONI: I heard you talking about a card written Zulu Police. What was the surname on the card?

MR TSHABANGU: Truly speaking, I did not see what was written. I did not notice whether he was Khumalo or not, but the only thing that I saw was his photo. I did not see the surname on the card.

MR SIBANYONI: What eventually happened to the card?

MR TSHABANGU: I don't know what happened to the card, but after some time, I had to leave for home. I don't know what happened to his card.

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

CHAIRPERSON: Mr Tshabangu, as I understand your evidence, you didn't know the deceased was being held at that office, correct? When you got there, he was already captured?

MR TSHABANGU: Yes, I found him there. I was told where he was captured.

CHAIRPERSON: And then later you left?

MR TSHABANGU: Yes, I left.

CHAIRPERSON: He was still alive?

MR TSHABANGU: He was still alive, though he was injured, but he was still alive.

CHAIRPERSON: How was he injured?

MR TSHABANGU: What I noticed was that he had a lump on his head and he had a wound on his ribs. His face was swollen but not badly.

CHAIRPERSON: That wound on his ribs, was it an open wound or a wound caused maybe by blunt force? What kind of wound was it?

MR TSHABANGU: It was not an open wound, maybe he had some bruises because I kicked him, but it was not an open wound.

CHAIRPERSON: When you left, it didn't look like he was injured such that he could die from it? Not yet, anyway, correct?

MR TSHABANGU: He was not injured to such an extent that he can even die out of those injuries.

CHAIRPERSON: Yes. As I understand it also, you assaulted him. How did you?

MR TSHABANGU: Yes, I assaulted him. I first hit him with a stick on his head and I kicked his ribs on the left hand side.

CHAIRPERSON: Yes, what more? Anything else?

MR TSHABANGU: No, I did that only. I hit him on his head and after that, I kicked him on his ribs on the left hand side.

CHAIRPERSON: When you assaulted him like that, did you intend to injure him badly?

MR TSHABANGU: My intention was, I wanted him to be injured or die if possible, because that was the decision and the procedure of the SDU's that if they come across an enemy, that person should be hit until he dies.

CHAIRPERSON: How did you think he could die by being hit on the head with a stick and kicked in the ribs?

MR TSHABANGU: I did not think of anything. The only thing that came to my mind was to hit him, because I only had a stick. I thought that by me hitting him, that would contribute to his death.

CHAIRPERSON: How? How would that contribute to his death?

MR TSHABANGU: If I continued kicking his ribs, maybe he would, his ribs would break and damage the heart and by hitting him on his head, maybe the stick would cause his internal bleeding and the brain would be effected.

CHAIRPERSON: How many times did you hit him?

MR TSHABANGU: I cannot remember whether I hit him once or twice, but I did not hit him more than twice.

CHAIRPERSON: How many times did you kick him?

MR TSHABANGU: I cannot remember, but I think it was not more than five times. I cannot remember how many times did I kick him.

CHAIRPERSON: If you wanted to kill him, why didn't you borrow a gun and shoot him?

MR TSHABANGU: I did not borrow a firearm to shoot him, because I was not brave enough, though I was angry, but I was not brave enough to get a firearm and kill him. I think I was a bit scared to kill him.

&#9;Though I was an SDU member, I was not brave enough to kill him.

CHAIRPERSON: So you did not intend to really kill him, but really to injure him only, not so?

MR TSHABANGU: I wanted to injure him if possible, if he would die in the process, because I was also angry like the others, and I could feel that we were in danger.

CHAIRPERSON: Do I understand you correctly then that you intended to kill him, and if he died as a result, it was well and good although you didn't, you knew you didn't do enough to actually ensure that he died?

MR TSHABANGU: I wouldn't be surprised if he died out of that, because that was our intention and my intention as a member of the SDU as we were assaulting him.

CHAIRPERSON: Why did you leave before he was actually killed, if you wanted to kill him?

MR TSHABANGU: I was afraid, I was scared to kill and a few days before his capture, Sicelo indicated to me as I was still a student at the University of Transkei, it was during the holidays, Sicelo told me that if someone is captured, I have to get an AK and kill that person.

&#9;I thought that that was time for me to take off a person, so that is why I decided to go home before that person was killed.

CHAIRPERSON: Thank you. You are excused.

WITNESS EXCUSED&#9;&#9;&#9;&#9;&#9;&#9;&#9;

NAME: JOSEPH BONGI NKOSI MOTSHWENE

APPLICATION NO: AM3884/96

--------------------------------------------------------------------------MRS NHLAYISI: Mr Chairman, my next applicant is Joseph Bongi Nkosi Motshwene. His application appears on page 275 of the bundle. It is application AM3884/96. Mr Chairman, he was here this morning, in the circumstances, can I request a short adjournment so that I try and ...

CHAIRPERSON: You can find him. 

MRS NHLAYISI: Thank you Mr Chairman, Mr Motshwene is applying for amnesty for attempted murder and possession of unlicensed firearm and ammunition.

&#9;Mr Chairman, before you proceed, can I give you the applicant's identity number? It is 711114 5387 08 8.

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

MR MOTSHWENE: Zulu.

JOSEPH BONGI NKOSI MOTSHWENE: (sworn states)

EXAMINATION BY MRS NHLAYISI: Mr Motshwene, you were a member of the Self Defence Unit in Sisulu Section in Tokoza is that correct?

MR MOTSHWENE: Yes, that is correct.

MRS NHLAYISI: When did you join?

MR MOTSHWENE: In 1991.

MRS NHLAYISI: Who was your Commander?

MR MOTSHWENE: Mr Commander was Chaka.

ADV GCABASHE: What are his full names?

MR MOTSHWENE: I don't know his full names, we used to call him Chaka, that is all.

MRS NHLAYISI: There is an incident that happened in 1993, is that correct, where you were involved in a shooting of one Masiti Keswa, a school teacher in Macatizwe primary school. Could you tell this Committee what happened on this particular day?

MR MOTSHWENE: We were coming from Radebe Section, the residents of Radebe were fighting with the hostel dwellers. Our Commander, Chaka, requested us that if we were willing to go and assist there, we could do so. That was in Radebe Section.

&#9;We were from Radebe Section, on our way to Tokoza, we met with a group of people, the vigilante group. They had their traditional weapons. They were wearing a certain attire with red head bands and on their arms, they had some red bands. They were taking the direction of Natalspruit and we met with these people. They wanted to know which party did we belong to and we could see that they were undermining us. We told them that we did not belong to anything, we were just human beings.

&#9;They wanted to attack us with their traditional weapons, their knopkieries, we ran away.

MRS NHLAYISI: In your testimony, you were referring to we. How many were you or who was in your company as you came from Radebe Section when you met this group of people?

MR MOTSHWENE: It was myself and a friend of mine, the two of us.

MRS NHLAYISI: Then after they asked you as to which political party did you belong, what happened next?

MR MOTSHWENE: We told them that we did not belong to any political organisation, we were not members. They tried to attack us with their weapons. I had a pistol, I was armed with a pistol and then they tried to attack us. I could see that I was in danger, like before.

&#9;I decided to run away. Others pursued us, and I drew my pistol. I shot towards them, they were scattered around and others went to the school yard that was there in that vicinity. As the others were pursuing us, they shot at us. I shot at them.

&#9;They were scattered around the place. The others went over to the school yard. I realised that they were not armed, they only had their knopkieries, I went to fetch the other comrades.

MRS NHLAYISI: You followed those that went into the school yard, is that what you are saying? You said they got scattered and you realised that they were not armed with firearms, they only had knopkieries and then you decided to follow them, is that what you are saying?

MR MOTSHWENE: Yes, that is correct.

MRS NHLAYISI: The pistol that you have mentioned, where did you get that?

MR MOTSHWENE: I got it from our Commander, Chaka.

MRS NHLAYISI: So it wasn't your personal weapon as such, it was issued to you by the Commander for the defence of the community, is that correct?

MR MOTSHWENE: Yes, that is correct.

MRS NHLAYISI: Okay, after this other group of people ran into the school yard and you followed them, what happened?

MR MOTSHWENE: When we got into the school yard, in the premises of the school, we met with two people. There were people who were just walking by. I stopped them, they did not stop, they did not stop, I shot again for the second time.

MRS NHLAYISI: Why did you do that when you met this two people in the school premises, and you just decided to order them to stop and shot towards them, what was the reason?

MR MOTSHWENE: Will you please repeat your question?

MRS NHLAYISI: You are saying that you got into the school yard, you saw two people there and you ordered them to stop, they didn't stop and then you fired a shot towards them. What was the reason for you firing towards the people that you saw in the school yard?

MR MOTSHWENE: I thought these people were from that group. I was not sure whether these people were with that other group. I suspected them as the people who were coming from that group, because even the other people ran into the school yard.

MRS NHLAYISI: So you actually thought they were part of the group that ran into the school premises, is that correct?

MR MOTSHWENE: Yes, that is correct.

MRS NHLAYISI: When you fired a shot towards these people, did it hit any of them?

MR MOTSHWENE: No one was shot at.

MRS NHLAYISI: So after you fired this shot, what happened next?

MR MOTSHWENE: These people ran away. They ran into the classroom.

ADV GCABASHE: Which people ran away, the two passer by's who you had just shot at, or who exactly?

MR MOTSHWENE: The people that I had ordered to stop.

MRS NHLAYISI: After they ran into a classroom, what did you do, did you chase them?

MR MOTSHWENE: Yes, I chased them. They got into a classroom and I also got into the class. I was surprised to find out there were people inside that classroom, they were drinking. They were not the people that we were fighting with.

MRS NHLAYISI: So you discovered that you directed a shot at wrong people actually when you stopped these two individuals outside and fired shots at them? Is that correct?

MR MOTSHWENE: Yes, that is correct.

MRS NHLAYISI: Then what happened there, did you try to talk to them?

MR MOTSHWENE: They asked me what was happening. As I was surprised and I could see that I was shooting at the wrong people, I told them that there was nothing wrong with them, but the problem was just outside.

MRS NHLAYISI: Then what happened?

MR MOTSHWENE: I was just talking to them. They wanted to know what was happening outside. I told them that there were people who were fighting with us, outside. As I was still talking with them, someone hit me with an object at the back of my head, and I fainted.

&#9;I don't know what happened thereafter. When I woke up, I was in hospital with police around me.

MRS NHLAYISI: So you were arrested for this particular incident?

MR MOTSHWENE: Yes, that is correct.

MRS NHLAYISI: Is it further correct that you were convicted for attempted murder and possession of unlicensed firearm, arising from this particular incident?

MR MOTSHWENE: Yes, that is correct.

MRS NHLAYISI: Am I further correct to say that you have already served your time as sentenced by the Criminal Court regarding this incident?

MR MOTSHWENE: Yes, that is correct.

MRS NHLAYISI: Mr Motshwene, why are you now applying for amnesty relating to this particular incident?

MR MOTSHWENE: It is solely because this disturbed me for a very long time, because I nearly killed a teacher for nothing, because of violence that was taking place in Tokoza. 

&#9;To think that that person was innocent, he knew nothing, that actually disturbed me. That is why I am here, and I also want to talk to him to tell him that it was nothing personal between me and himself, but it was because of the other people that we were fighting with, the people who wanted to kill us.

MRS NHLAYISI: Between the time that you have been released from jail and now, have you made any attempts to get hold of Mr Keswa and say what you are saying today, tell him that there was nothing personal towards him when this incident happened, it was the circumstances?

MR MOTSHWENE: No, I did not attempt to do so because I thought that if I go to him, he will be shocked and if he recognises me, it might look like I am trying to bribe him.

&#9;I thought that he might think that I want to bribe him. I told myself that I will wait for my turn to come and apply for amnesty.

MRS NHLAYISI: Do you have any specific message that you would like to send to this particular victim, if he would be in a position to hear your message?

MR MOTSHWENE: What message?

MRS NHLAYISI: About this incident, what would you like to say to him, with a view of bringing peace between yourself and with an aim of bringing peace in the community where you are staying?

MR MOTSHWENE: I would like to tell him that what happened to him, he knew very well what was happening in the township at the time. What was happening at the time when I nearly killed him. I want to say this to him, I want to ask for forgiveness because what happened to him, was not personal. I was trying to protect myself from my assailants or attackers.

&#9;There is nothing else.

MRS NHLAYISI: Thank you Mr Chairman, I have nothing further.

NO FURTHER QUESTIONS BY MRS NHLAYISI

CHAIRPERSON: We will break for the tea adjournment.

COMMITTEE ADJOURNS

ON RESUMPTION:

JOSEPH BONGI NKOSI MOTSHWENE: (still under oath)

CHAIRPERSON: It seems that the cellphones are interfering with the interpretation mechanisms and the recording mechanisms. As a result thereof, I must request that all cellular telephones be switched off. Mr Steenkamp?

ADV STEENKAMP: Mr Chairman, during the adjournment I think it was my turn to ask questions, I don't have any questions for the applicant Mr Chairman. I think he finished his testimony as well. Thank you Mr Chairman.

NO CROSS-EXAMINATION BY ADV STEENKAMP

ADV GCABASHE: Thank you Chair. Mr Motshwene, there are parts of your evidence that I don't quite understand, so I am going to ask you to go through particular points for me.

&#9;Just to get this right, Radebe Section, is that in Katlehong?

MR MOTSHWENE: Yes, it is in Katlehong.

ADV GCABASHE: So, you were on your way from Katlehong going home to Tokoza, when you came across this group of, I will call them vigilantes, which was one of the words that was interpreted to us, wearing red head bands, is that correct?

MR MOTSHWENE: Will you please repeat your question Ma'am?

ADV GCABASHE: You were on your way home with a friend, when you came across this group of people, wearing red head bands and red arm bands?

MR MOTSHWENE: Yes, that is correct.

ADV GCABASHE: They harassed you and asked you which political party you belonged to and you said no, we don't belong to any political party, is that what you said?

MR MOTSHWENE: Yes, that is correct.

ADV GCABASHE: But they continued to harass you and you decided to run away and as you ran away, you shot at them, because they were behind you I presume? Am I right?

MR MOTSHWENE: They were just opposite us. I shot at them as they were chasing us because they pointed us with their assegais.

ADV GCABASHE: Again, I am trying to get the right picture. They were in front of you and you ran towards them, or they were behind you and you ran away from them, clarify that for me.

MR MOTSHWENE: As we were running away, they were following us, they were chasing us from behind.

ADV GCABASHE: Right. So you have these people behind you, chasing you and you shoot at them, and when you do this, they scatter and run all over the place, yes?

MR MOTSHWENE: Yes, they got scattered as I was shooting at them.

ADV GCABASHE: But you were still in front of them, and you were still running forward towards Tokoza, am I right?

MR MOTSHWENE: Will you please repeat your question?

ADV GCABASHE: At this point you and your friend were still ahead of them, you were still running towards Tokoza?

MR MOTSHWENE: Yes, that is correct.

ADV GCABASHE: This is where I have another gap, please help me with this. At this point, you appeared to say that you decided to go and fetch your comrades. Just put that sentence that I wrote down earlier, in the right context for me.

&#9;You are running away from these people, what then happens?

MR MOTSHWENE: We did not think of fetching the comrades as we were going back to Tokoza when we parted with these people, I don't understand you, what do you mean? When we parted with these people, we went to fetch the other comrades, or you want to know if we wanted to fetch the comrades as we were coming from Radebe Section, what is your question?

MR MOTSHWENE: When you gave testimony earlier, I wrote here that these people were scattered around the place, some ran into the school yard. That is what I wrote. I realised they only had knopkieries, you realised that they didn't have firearms.

&#9;My next sentence is, I went to fetch my comrades. If I misunderstood what the Interpreter was saying, please correct me. If you did in fact go and look for your comrades, please clarify the point.

MR MOTSHWENE: You did not understand. As these people wanted to attack us with their sticks, they tried to chase us. I drew my pistol and I shot at them, and they were scattered around the place. The others ran into a school yard.

&#9;I could see that they were not armed, they did not have firearms. That is when I decided to get into the school yard, to fetch the others, because I realised that they were not armed, they did not have any firearms.

&#9;I wonder if you want me to explain further?

ADV GCABASHE: That has helped to a certain extent. When they ran into the school yard, into the school yard, you realised that they didn't have firearms, you then made a U-turn and came back to deal with this group, is this what you are saying?

MR MOTSHWENE: Yes, that is correct.

ADV GCABASHE: Two questions, the first one is, where was your friend at this point? There were two of you originally?

MR MOTSHWENE: He was still with me all the time.

ADV GCABASHE: So the two of you turned back to deal with these chaps. Why did you turn back to deal with these chaps?

MR MOTSHWENE: First of all, this vigilante group, I don't like them, they caused injuries. They injured me and the IFP people, I was nearly killed in 1992, by Bhekinsele Khumalo, therefore I disliked those people.

&#9;Whatever they tried to do to me, they would try to do to me, I would retaliate because I was nearly killed by the same people.

ADV GCABASHE: Again explain that to me even further. You were turning back to avenge what they had done to you in the past or what Bhekinsele Khumalo had done to you in the past, is this what you are saying? Help me with this.

MR MOTSHWENE: I cannot be that specific that I wanted to avenge what was done by Bhekinsele Khumalo to me, but I disliked them because they were trying, they were also trying to kill us.

&#9;That was an order that was issued by our Commander that as the people who were coming from Radebe to assist the Radebe Section, we had to hit back to these people and trying to prevent them from doing whatever they were trying to do.

CHAIRPERSON: You will have to be specific, why did you shoot back? That was the question.

MR MOTSHWENE: I wanted to shoot at them, because they were trying to attack us.

CHAIRPERSON: So to say you were defending yourself?

MR MOTSHWENE: Yes, actually we were defending ourselves, because if they were not aware of the fact that we had firearms, perhaps some of them would follow us.

ADV GCABASHE: Now that initial shooting took place before you got to Macatizwe school, didn't it? That first shooting?

MR MOTSHWENE: You mean the initial shooting? It was, it took place not far from Macatizwe school.

ADV GCABASHE: Now let's get to the second shooting, this is the shooting now of what turned out to be a teacher. You have made this U-turn and the note I had written here was as follows: when we went into the school yard, we saw two persons who were just walking by. You asked them to stop and they didn't stop, so you shot them and the note I have here, is I shot for the second time.

&#9;Explain that to me. How did you come to shoot this particular teacher at that point? You asked them to stop, they refused to stop. 

MR MOTSHWENE: I was shooting them from a distance, I wanted them to stop, I was not closer to them.

ADV GCABASHE: Why did you want them to stop?

MR MOTSHWENE: I wanted to catch them.

ADV GCABASHE: What made you think that these two persons were associated with the group that had been wearing those red bands?

MR MOTSHWENE: It is because the people appeared from a place where these other people disappeared into, where this other group of people went into, so they came out of that place also.

&#9;I was also aware of the fact that in that school yard, no one else was supposed to be there, because the schools were closed, so I thought those were the same people.

ADV GCABASHE: So these two people who were walking by, actually came out of Macatizwe school and walked towards you, is this what you are saying? Just help me.

MR MOTSHWENE: They were not coming to our direction, they were just walking. I think they were just walking, but we would later meet on that same route.

ADV GCABASHE: To come back to the reason for asking them to stop and the reason for shooting at them, you say you wanted to capture them. What for?

MR MOTSHWENE: I was going to take them to our Commander.

ADV GCABASHE: You see my difficulty is on what you are saying, these same people are the ones you had run away from earlier, is that not right? This is what you thought anyway?

MR MOTSHWENE: It was a large group of people when I ran away from them, but when I saw only two of them, I was not afraid of them because I knew that they had no firearms.

&#9;I realised that they did not shoot. If there was an exchange of fire, I wouldn't go back there, but I became aware of the fact that they were unarmed.

ADV GCABASHE: That was going to be my next question. Just to help me understand this, you knew they were unarmed, the bigger group, but you could see these two and they didn't wear red bandannas or anything of the sort, they weren't carrying knopkieries, they weren't carrying assegais. Why did you associate these two with the grouping that had run into the school, running away from your firearm?

MR MOTSHWENE: Out of all of these people, from the very first group, it is not all of them who had, only a few of them had red head bands and even this twosome, I did not know that they were teachers. They were not dressed formally. That is why I assumed that these people were from the same group of people that I was chasing.

CHAIRPERSON: Did they have red bands, those two teachers?

MR MOTSHWENE: I did not notice that.

CHAIRPERSON: Then what made you think they were part of that group?

MR MOTSHWENE: It is not always the case that you identify vigilante with a red head band. It was only that they appeared from that school where the other people ran into and there were no other people in the school.

ADV GCABASHE: Again just for clarity, this incident happened at night?

MR MOTSHWENE: No, it was in the afternoon.

ADV GCABASHE: Give us just a rough time of the afternoon.

MR MOTSHWENE: Between two and three o'clock.

ADV GCABASHE: So you could see this people clearly and they could see you clearly?

MR MOTSHWENE: Which people?

ADV GCABASHE: These two teachers?

MR MOTSHWENE: As I have already explained that I shot at these people at a distance, they did not meet. Maybe I would be able to see the difference if I had a closer look.

ADV GCABASHE: Had it been the principal of the school walking out with one of his teachers, walking out of the school premises, you would again have shot at them? I am just using an example.

&#9;You would have shot at him?

MR MOTSHWENE: You can, teachers, they dress formally all the time, but the way those teachers were dressed on that particular day, you wouldn't be able to tell whether they were teachers or not, but when I heard after that, I later heard that they had a party at the school.

ADV GCABASHE: Did your friend do anything at all apart from just watch you shoot at both the first group and then these two teachers? What did he do?

MR MOTSHWENE: He had nothing to do, except to tell me that those were the people or not, because I was the only one who was armed with a pistol. He had nothing to do.

ADV GCABASHE: Thank you. Thank you Chair.

MR SIBANYONI: Thank you Mr Chairperson, when would your friend tell you whether they are the people or not?

MR MOTSHWENE: As I have already explained that he was next to me all the time. He would just tell me any time. This happened unexpectedly and we didn't know that we were going to meet with such people.

&#9;It is not possible that you will always act straight whenever things like this happen, but we were very angry at the time, because they appeared at a time when we knew very well that we were fighting these people and there was no peace between us and this group of people, because we knew that they were going to kill us.

MR SIBANYONI: Did your friend say anything before you shot at them?

MR MOTSHWENE: We did not communicate properly because I just said here are these people, and we argued. Some were there, we decided to shoot and we told ourselves that if they run away, we will be able to say those were the people who were enemies.

&#9;The people who knew nothing, the people who were innocent, wouldn't run away.

MR SIBANYONI: At what stage did you discover or realise that they were not the people, or part of the vigilante group? When did you discover that?

MR MOTSHWENE: Will you please repeat your question sir?

MR SIBANYONI: When did you realise that those were teachers, but not part of the vigilante group?

MR MOTSHWENE: I realised when I was in the class, as I was talking to them and they were asking me what was happening. That is when I took my firearm back, because I could see the people in that classroom had nothing to do with the group of people that we were pursuing, that is when I realised that those were the wrong people.

&#9;If those were the people that we were looking for, I wouldn't take my firearm back.

MR SIBANYONI: You are applying for amnesty for attempted murder, was this teacher injured in any way?

MR MOTSHWENE: No, he was never injured.

MR SIBANYONI: Which means the bullet never struck him?

MR MOTSHWENE: Yes, that is correct. It was not directed to him.

MR SIBANYONI: Where did you direct it?

MR MOTSHWENE: I was just shooting, I shot at the side, it was not directed to him. I had a lot of bullets. My firearm was fully loaded.

MR SIBANYONI: Are you saying you deliberately shot away from him?

MR MOTSHWENE: I can say so. I was just shooting because we were not so sure that those were the people that we were pursuing, that is why we decided to shoot because by seeing them running away, we would confirm that those were the people that we were after.

MR SIBANYONI: Maybe I should phrase my question this way, what did you intend to achieve by firing the shot at that stage?

MR MOTSHWENE: We wanted to capture these people, we wanted to take them with.

&#9;We would decide whether to capture them or just to shoot them.

MR SIBANYONI: Thank you Mr Chairperson.

CHAIRPERSON: We were informed that you were applying for amnesty in respect of one count of attempted murder and one count each of unlawful possession of firearm and ammunition. Is that correct?

MR MOTSHWENE: Yes, that is correct.

CHAIRPERSON: The attempted murder, is that in respect of this teacher?

MR MOTSHWENE: Yes, it is one case.

CHAIRPERSON: Why I am asking you is because there were two incidents of shooting, and I want to establish from you what the position is. What do you want amnesty for?

MR MOTSHWENE: It is the one that has got something to do with the teacher.

CHAIRPERSON: Did you know this person before that day, this teacher?

MR MOTSHWENE: No.

CHAIRPERSON: How far from him were you when you shot at him?

MR MOTSHWENE: The distance would be from that double door, the one that I am facing right now, to where I am sitting approximately.

CHAIRPERSON: Our estimate is about 30 to 40 metres?

MRS NHLAYISI: I agree, it is about 30 meters.

CHAIRPERSON: You didn't recognise or you didn't know either of the people that you saw from that distance?

MR MOTSHWENE: I couldn't be able to identify him, because there was another group of people and we were not talking to them, standing direct next to us. We were just waiting for them to do something and we would run away.

CHAIRPERSON: Did you talk to them at that distance?

MR MOTSHWENE: What people? The people from the group or this other two gentlemen?

CHAIRPERSON: These two gentlemen. Forget about the other group now, you are not making application in respect of that other group. Let's talk about the two teachers.

&#9;Did you make an attempt before you shot at them, to talk to them, shout to them or whatever?

MR MOTSHWENE: What I did to them, was I ordered them to stop, but they refused.

CHAIRPERSON: Was that from the distance that you pointed out that you ordered them to stop?

MR MOTSHWENE: Yes, that is correct.

CHAIRPERSON: Were they still at the school gate or what is the position?

MR MOTSHWENE: They were inside the school premises.

CHAIRPERSON: When they never responded to your order, you shot at them?

MR MOTSHWENE: Yes, that is correct.

CHAIRPERSON: While they were in the school premises now, is the school's premises fenced off?

MR MOTSHWENE: The fence was partly damaged, people would walk through the school premises, people from Katlehong to Tokoza would just go through because the fence was partly damaged.

CHAIRPERSON: When you told them to stop, were they walking in your direction?

MR MOTSHWENE: Yes, they were facing our direction.

CHAIRPERSON: You knew that they were not armed with any weapon that could injure you from that distance, not so?

MR MOTSHWENE: Who? Are you referring to the twosome?

CHAIRPERSON: Those two gentlemen. Yes, we are talking about those two teachers only, you know that.

MR MOTSHWENE: I am not certain whether they were armed or not.

CHAIRPERSON: Exactly, but you could not see any arms that they may have been carrying that could injure you over that distance, not so?

MR MOTSHWENE: Will you please repeat your question sir?

CHAIRPERSON: You couldn't be injured from that distance, because you never saw any firearms there with them, not so?

MR MOTSHWENE: Even if they were armed, but as a person who had his firearm, as I was the person who had his firearm in his hand, I would shoot first.

CHAIRPERSON: You see what is troubling me in your application is that we don't exactly know why you shot at them. Are you able to help us so that we can make a proper decision?

MR MOTSHWENE: You want to know about the reason why I shot at these people, will you please clarify your question sir?

CHAIRPERSON: Yes. Why did you shoot at them?

MR MOTSHWENE: I explained before that I thought that these people were coming from that other group, the people that we were after. That is why I shot at them.

CHAIRPERSON: Why was it necessary to shoot?

MR MOTSHWENE: I wanted to show them that I had a firearm, because I knew that if I shoot first, they wouldn't get a chance to shoot, because my pistol was in my hand.

CHAIRPERSON: Mr Motshwene, I want to be absolutely fair to you. I am going to ask you a question which I want you to deal with because it concerns us. Basically the Act in terms of which you applied for amnesty, requires two aspects to be complied with.

&#9;The first one and I am going to give the lesser one for your purposes, is to make a full disclosure of what occurred there and what was decided and whose orders were complied with, etc. I haven't got too much to worry about on that score.

&#9;The second aspect which is required to be complied with, is that your actions must have been based on a political motive such that it was in the furtherance of the organisation or the objectives of the organisation on behalf of whom you acted, do you understand that?

MR MOTSHWENE: Yes, I understand, but I would request you to repeat the first question.

CHAIRPERSON: The aspect that is concerning us, is the political motive aspect. I am going to put the question to you because you tell me now that you understand that requirement.

&#9;Was there a political motive for you to act in the way you described your acts and if so, what was the political motive?

MR MOTSHWENE: The answer is yes, because if the vigilante group did not attack me, I wouldn't go to jail and be sentenced for this case. I was not doing this with a certain aim, but these people were attacking us.

&#9;As the people who were trying to protect us, this happened and I was also a member of the SDU, we were defending wherever necessary. I can say if it was not for the vigilante group, I wouldn't be here today.

&#9;Secondly, as this whole thing unfolded, it happened in such a way that the person that I nearly killed, was a well respected person who was innocent, who knew nothing, and that is actually disturbing me. If he was hit by that bullet, that would be a problem because he was just innocent, he was just a teacher.

&#9;That is what is disturbing me. I don't know how to put this really, because the explanation that you need, I think it is obvious, self-explanatory. Not unless I want to put lies, if I explain further, I will end up telling lies. There is no need for me to tell lies and mention people who sent me to do this, but because everyone was involved in this violence, everyone was effected by this violence in Tokoza and people were trying to protect themselves, it is very difficult to explain this violence, because people would do whatever to protect themselves.

CHAIRPERSON: I want you to look at page 276 of your application. Did you fill the form in yourself?

MR MOTSHWENE: Yes.

CHAIRPERSON: I see it is completed in English. Can you understand English? I am going to ask the Interpreter to interpret it into Zulu as well when I have read it, so that there is no misunderstanding.

&#9;Paragraph 10(a) asks you to state the political objective sought to be achieved. By that is meant you must state the political objective sought to be achieved by your actions and your answer there is due to the situation of violence, I was protecting myself.

&#9;10(b) asks of you to state your justification for regarding such acts or omissions or offences as acts, omissions or offences associated with a political objective. Your answer there is everybody has a right to life. So as an individual I was protecting that right.

&#9;Do you understand it, do you understand the questions and the answers?

MR MOTSHWENE: Yes, I do.

CHAIRPERSON: Is there anything you want to change in either those answers?

MR MOTSHWENE: I don't think so.

CHAIRPERSON: You see, these two answers indicate to me at least, that you were acting in self defence. Am I correct?

MR MOTSHWENE: Yes, that is correct.

CHAIRPERSON: You were protecting yourself from attack on that particular day at that particular time and therefore you shot?

MR MOTSHWENE: Yes, that is correct.

CHAIRPERSON: There was nothing political about it? You were acting in self defence as any other person would do, aside from politics, when being attacked? You ran away, then you shot in order to stop what you thought was a continuance of an attack on you? Do I understand it correctly?

MR MOTSHWENE: Yes, that is correct.

CHAIRPERSON: When you acted there, you did not act with any intention of having any political achievement? Is that correct, you were merely protecting your own life because as you say, you have a right to life and you were protecting that right? If I am wrong, tell me.

MR MOTSHWENE: You are not wrong, but the way things happened there, you want to say that - you mean that you were going to take this case seriously if the defendant was one of the people who were attacking me?

CHAIRPERSON: No. Please don't try to guess what I am going to do. I don't know myself yet what I am going to do. I must still consider this application.

&#9;I want to put myself and my colleagues in the best position that we can be to properly consider this matter. We are duty bound to do so. Do you understand?

MR MOTSHWENE: Yes, I understand.

CHAIRPERSON: Therefore I am asking you all these questions to clarify aspects so that I can see if I can consider the matter properly.

&#9;I have not made up my mind yet, neither have my colleagues. Do you understand? And for your information, we take every application seriously. I am trying to give you every opportunity to give us information so that we can properly understand the application. Do you understand? I am not trying to catch you out, I am trying to acquire an understanding for your position before we sit down and talk about it, consult each other so that we can make the correct finding. Do you understand?

MR MOTSHWENE: Yes, I understand.

CHAIRPERSON: As I was saying, as I understand what you said here, and you say you repeat what you wrote, that in actual fact your actions was that for the purposes of protecting your own life, not for the purposes of achieving any political objective on that day and at that time? Am I correct?

MR MOTSHWENE: I won't agree with you because if this person didn't start this problem first, if he didn't start this with me, he was going to injure other people. I was not protecting only myself. The same people would injure the other people.

&#9;We were in possession of our arms, because we were protecting the community. We were not doing that because we felt good about it. We were doing it for our community and it happened that I met with this problem and it happened to the wrong person.

CHAIRPERSON: When you filled in this application form, question 10(a) did you understand that question?

MR MOTSHWENE: I can say if you don't get assistance from the people who are well conversant about this matter, maybe I can say I did not understand the question. Because when I look at it, I think he or she did not give the answer as to what the Commission or Committee would expect.

CHAIRPERSON: We don't expect anything. We must just read the answers. What did you understand by that question?

MR MOTSHWENE: You have to read it because I don't have a copy.

CHAIRPERSON: State the political objective sought to be achieved.

MR MOTSHWENE: Yes, I understand now.

CHAIRPERSON: Did you understand it in the same way on that day, when you filled in the application form?

MR MOTSHWENE: No, I did not understand it the same way as I do now.

CHAIRPERSON: You see, I find that strange. About five minutes ago, I read the same question and answers and you indicated that everything was in order, you did not wish to change anything. Do you recall that?

MR MOTSHWENE: I wanted to know whether you were interested in what I filled in this form, or whether you were interested in the way things happened or the objectives or whatever.

CHAIRPERSON: Look, I read out the question which was interpreted and the answer, correct? Do you recall that?

MR MOTSHWENE: Yes.

CHAIRPERSON: And I gave you an opportunity to amend anything that you wanted to, do you recall that?

MR MOTSHWENE: Yes.

CHAIRPERSON: And if there was something wrong with the question and you didn't understand it, it would mean your answer was incorrect, not so? But yet you said everything was in order?

MR MOTSHWENE: I am a bit confused now, because I am answering your question now, and this side I have to refer to the papers, I am a bit confused.

CHAIRPERSON: Then I am going to ask you the simple question again. What political objective did you seek to achieve in your actions when you shot at the two teachers who were still in the school yard?

MR MOTSHWENE: As far as I am concerned, I told myself that if I killed these people, or I have killed the IFP members, that is the answer that you need because those people as far as I am concerned, were IFP members.

&#9;We were fighting against, we were fighting with these IFP members.

CHAIRPERSON: One last question, when you said that due to the situation of the violence, I was protecting myself and everybody has a right to life, so as an individual, I was protecting that right, what type of question did you think you were answering?

MR MOTSHWENE: Will you please repeat your question sir.

CHAIRPERSON: Those two answers that you gave on page 276, question 10(a) and (b), the answers you said you did not wish to amend, you now suggest today that you may not have understood the questions properly, I am just asking you, how did you then understand the questions in order to give those kind of answers? What did you think you were answering?

MR MOTSHWENE: It will be extremely difficult for me to respond to that, because I am confused now. I don't know what is happening.

&#9;The way I explained this to you, I thought you were going to understand more about my intention and why I applied for amnesty. Now if you are referring me to the papers, something when I wrote when I was still in jail, that places me in a difficult situation because I've got to think properly, because I wrote this thing while I was in jail.

&#9;You know when you are in prison, you just fill in the gaps so that your application be accepted.

CHAIRPERSON: Is that your answer to my question?

MR MOTSHWENE: Yes.

CHAIRPERSON: You are excused.

MRS NHLAYISI: Mr Chairman, there is one aspect that I need to correct on the applicant's application form, regarding his surname. It is spelt differently as in his identity document. The ID document it is spelt Motshwene. Thank you Mr Chairman, that is all. 

CHAIRPERSON: We will refer to him as Joseph Bongi Nkosi Motshwene.

MRS NHLAYISI: It is pronounced the same, it is just that the other one is written in Ndebele, the other one is written in Sotho. It is Motshwene.

CHAIRPERSON: Which is the Sotho spelling?

MRS NHLAYISI: The one that I have just given to you.

CHAIRPERSON: And you say the other one?

MRS NHLAYISI: Ndebele.

CHAIRPERSON: And you would prefer us to use the one as contained in the ...

MRS NHLAYISI: In the ID document.

CHAIRPERSON: We will refer to him on that basis and also indicate he is also known by the other spelling.

MRS NHLAYISI: Thank you Mr Chairman.

CHAIRPERSON: Thank you. He is excused.

WITNESS EXCUSED

 

 

 

 

 

 

 

 

NAME: THAMI MAHLALA

APPLICATION NO: AM7628/97

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MRS NHLAYISI: Mr Chairman, it concludes my applications for the day. My colleague, Mr Sibeko will be taking over.

MR SIBEKO: Mr Chairman, the applicant is Mr Thami Mahlala. His application appears on page 72. The application number is AM7628/97.

CHAIRPERSON: Where is he Mr Sibeko?

MR SIBEKO: He is with Prison Authorities.

CHAIRPERSON: Mr Steenkamp, will you see to it that the shackles are taken off while they are sitting in this hall please?

ADV STEENKAMP: Mr Chairman, I actually have informed Prison Authorities previously. I know in the previous hearings you have informed me similarly. I informed them, I don't know why it is.

CHAIRPERSON: Keep an eye on it please.

ADV STEENKAMP: I do apologise Mr Chairman. 

CHAIRPERSON: Mr Sibeko, what is the position with his ID number?

MR SIBEKO: Mr Chairman, Mr Mahlala informed me that he never possessed any ID book before, as a result he doesn't have any identity document, he only knows his birth date.

CHAIRPERSON: Which is?

MR SIBEKO: The date of birth is the 28th of October 1970.

CHAIRPERSON: You better inform him if he intends to vote, he better have an ID document with a bar code.

MR SIBEKO: I will do so Mr Chairman.

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

MR MAHLALA: Zulu.

THAMI MAHLALA: (sworn states)

CHAIRPERSON: Would your incarceration at the moment, have anything to do with your application? In other words are you serving sentence for the acts and offences for which you are now applying for amnesty or is it for something else?

MR MAHLALA: I am in jail because of the incident that took place in the township, the incident that I am applying for surely. I am applying for amnesty.

CHAIRPERSON: Mr Sibeko, I don't know if the applicant understood me correctly, because I didn't quite follow his answer. Are you able to tell me whether he is in prison solely for the acts for which he applies for amnesty?

MR SIBEKO: Mr Chairman, those are my instructions. All the acts that he has been sentenced for, and other acts that he is applying for amnesty.

CHAIRPERSON: Mr Sibeko?

EXAMINATION BY MR SIBEKO: Thank you Mr Chairman. Mr Chairman, the applicant applies for amnesty for murder, one count of murder, one count of attempted murder, one count of armed robbery, unlawful possession of firearms, one count. I don't have the number, but it is a number of arms and one count of attempted escape from lawful custody.

CHAIRPERSON: Would that be for political reasons?

MR SIBEKO: Mr Chairman, the facts relating to it, will indicate that it was somewhat political.

CHAIRPERSON: I am going to be very interested to hear that.

MR SIBEKO: May I proceed? Sir, were you a member of the Self Defence Unit in Tokoza?

MR MAHLALA: Yes, I was within the Youth Congress in Tokoza.

MR SIBEKO: Yes, were you at any stage part of the Self Defence Unit in Tokoza?

MR MAHLALA: Yes.

MR SIBEKO: Which Section were you operating as a member of the Self Defence Unit?

MR MAHLALA: Slovo Section.

MR SIBEKO: When did you join the Unit?

MR MAHLALA: In 1990.

MR SIBEKO: At that time, who was your Commander?

MR MAHLALA: My Commander was Levi, his assistant was Jamani.

MR SIBEKO: Now, do you by any chance have other names for Levi?

MR MAHLALA: Molefi.

MR SIBEKO: Sir, do you confirm that the offences that I have read out, are the offences that you are applying for amnesty for?

MR MAHLALA: Yes, I confirm that.

MR SIBEKO: Right, on page 73 paragraph 9(a), you indicate that the acts or omissions or offences is possession of illegal firearms, murder and stolen vehicle and the dates you refer to as the 30th October 1992, do you have any problems in letting us know what actually happened?

MR MAHLALA: No, I don't have a problem. I can explain.

MR SIBEKO: Proceed sir.

MR MAHLALA: On the 29th of October 1992, it was in the morning, Levi came to me. He asked me, saying that I should accompany him to go to where we were going to fetch a car and go out on our way to collect firearms. Therefore we went to Alrode. We arrived at Alrode, we sat there. People were getting in buying things, getting in and out and one man who was wearing a two piece, got out of the place and got into a car. As he was about to start his car, Levi approached him and pointed a firearm at him, and I was already close to that person.

&#9;He raised up his hands inside the car, he opened the car and went out. We got into the car and I climbed in the passenger seat. We went back to the township. 

MR SIBEKO: You say on that particular morning ...

CHAIRPERSON: Was that the robbery?

MR MAHLALA: That is correct Mr Chairman.

CHAIRPERSON: Is that the robbery of the motor vehicle? 

MR SIBEKO: Now you say on that particular morning, Levi who happens to be Molefi, and you said he was your Commander, came to your place, correct?

MR MAHLALA: Yes, he came to me as a Commander.

MR SIBEKO: You said he told you that you have to go to Alrode in order to get the car?

MR MAHLALA: Yes.

MR SIBEKO: And then you say the car that you were actually looking for, should be a company car?

MR MAHLALA: It will be a company car, any Contractor's car.

MR SIBEKO: Then when you arrived, you waited until you saw one man who was there to buy something?

MR MAHLALA: Yes, we arrived and waited at the place and we were waiting for any car which belonged to Contractors or a company and it so happened that this gentleman got out and got into this particular car and as I explained before, we pointed a firearm at him, he raised his hands. We got in and we drove to the township.

MR SIBEKO: The person who got into the car, after this man alighted, is it Mlefi? Is it Levi?

MR MAHLALA: Yes.

CHAIRPERSON: Is Levi also known as Mlefi? Is that his proper name?

MR MAHLALA: Yes.

MR SIBEKO: You occupied the passenger seat and then you left?

MR MAHLALA: Yes, I was sitting on the passenger seat.

MR SIBEKO: What was the purpose of you getting this motor vehicle?

MR MAHLALA: The purpose for acquiring this car, was to use it to go to Duduza, to go and fetch firearms. My Commander had already informed me that there is some operation that we had to do, but we have to first go and collect firearms and carry out the work in the evening.

MR SIBEKO: Right, you got the car, what happened thereafter?

MR MAHLALA: We took the car and kept it somewhere. In the evening Levi came together with Jamani and Vusi. They found me outside, they called me and I approached them. In front it was Levi who was driving and Jamani was the passenger and Vusi was sitting at the back and I got at the back together with Vusi.

&#9;We drove to Duduza and when we arrived in Duduza, Levi came out of the car. He got out of the car and he said to Vusi are you armed with a firearm, and Vusi said yes. He said if ever we got attacked, we protect ourselves with these firearms. He went into one shack and one man by the name of Zinto came out. This person came to meet Levi.

&#9;I know this person because I met him once in the township. At a particular moment, they both went into that shack. Levi came out, holding a bag. He opened the door and threw it into the front seat of the car and he said to us, if anything disturbs us on the way, we will have to fight, because if we had to arrive in the township without the firearms, they will say we have misused the funds.

&#9;He got into the car, started the car and we left. 

MR SIBEKO: Yes?

MR MAHLALA: We left and before we arrived at Vosloorus, we found a roadblock. We had to turn back. We turned back and we stopped at Dawn Park and parked our car under a light.

&#9;We started discussing as to how we were going to do it. We had to decide whether we should wait until the roadblock is over or we should use another route, and before the lapse of time, about three or five minutes, another car came and stopped from behind. It was a private car.

MR SIBEKO: Yes?

MR MAHLALA: Vusi was outside at the time, busy urinating. Vusi said they are cocking their arms, and before he could finish - Vusi heard them cocking the firearm and we also heard the sound of firearms, we looked at them and thereafter we heard a fire shot. It looked like they were firing at us.

&#9;We took cover. Levi got into the car, he pulled out his firearm. Vusi also shot. Those people shot at us and he fell down.

CHAIRPERSON: Who fell down?

MR MAHLALA: Vusi fell down. I took the firearm from Vusi, we heard the sound of an AK47 and as we were shooting them, we suspected that, we didn't know that they were police, because they were dressed in private clothes.

&#9;In my mind, while shooting at them, I thought, I remembered that my Commander said that we should find any disturbance on the way, and I thought it was the soldiers who were at the roadblock and they have seen us, so I shot at them.

CHAIRPERSON: Why?

MR MAHLALA: I was trying to protect the firearms that we had, because our Commander has informed us that we should arrive at the township with the firearms and we should do anything to protect them.

CHAIRPERSON: So you were acting in terms of a command as well?

MR MAHLALA: Yes. We exchanged fire, some police arrived and we fired each other, and I tried to cover. At that time, I was shot and I woke up in hospital. I don't remember what happened thereafter, I don't know what happened thereafter.

MR SIBEKO: Mr Chairman, I see that the time now is one o'clock. Should we proceed? It is not much? 

&#9;Right, you were also shot and you were unconscious until you regained your consciousness at the hospital, is that correct?

MR MAHLALA: That is correct.

MR SIBEKO: That is how you were arrested, is that correct?

MR MAHLALA: That is how I was arrested.

MR SIBEKO: Amongst the offences or the acts that you have applied for, you have also included attempted, or escaping from lawful custody. What made you to want to escape from custody?

MR MAHLALA: It is because I had a visitor from the township, saying that people are getting killed in the township and things are very tense and even my girlfriend doesn't stay at her own home at that moment. Therefore because of all these things, I decided I have to skip from prison to go and help the community.

MR SIBEKO: Now, when you were tried and convicted, did you get an opportunity of getting to know the victims, the next of kin of the person that died as a result of the shootout between yourself and the people who came with the vehicle, which you say is a private car?

MR MAHLALA: Yes, I saw them in court.

MR SIBEKO: If you were to be given an opportunity of approaching the next of kin of the deceased to reconcile with them, would you make use of that opportunity?

MR MAHLALA: Yes, I will be happy to get such an opportunity to ask forgiveness from them.

MR SIBEKO: The offence of attempted murder that you have also included, is it related to the shootout between yourselves and the occupants of the private car?

MR MAHLALA: Yes, that is correct.

MR SIBEKO: Am I correct to say at the time you saw this private car approaching and having met the roadblock, what came to your mind is that these were the police who might have seen you when you made a U-turn, that is running away from the roadblock, is that correct?

MR MAHLALA: That is correct. I thought they saw us when we turned back and therefore I suspected that they were police.

MR SIBEKO: Now if you were to be given an opportunity to meet the gentleman whom you robbed the vehicle at Alrode, would you also take that opportunity and try to make peace or reconcile with him?

MR MAHLALA: Yes, I will appreciate to get such an opportunity.

MR SIBEKO: Which Court tried you and what sentence was passed or was given?

MR MAHLALA: I am sorry, it was the Boksburg court and I was sentenced to 33 years for all the charges.

MR SIBEKO: Thank you Mr Chairman, I've got no further questions.

NO FURTHER QUESTIONS BY MR SIBEKO

CHAIRPERSON: We will take the lunch adjournment.

COMMITTEE ADJOURNS

ON RESUMPTION

THAMI MAHLALA: (still under oath)

ADV STEENKAMP: Thank you Mr Chairman, we are ready to proceed. I think my learned colleague has closed his evidence, thank you sir. I don't have any further questions, thank you Mr Chairman.

NO CROSS-EXAMINATION BY ADV STEENKAMP

ADV GCABASHE: Thank you Chair. Mr Sibeko, if you could just show your client supplement 2. On page 1 there is a reference to Molefi Michael Selebe. Is that the same Molefi you refer to in your testimony?

MR MAHLALA: Yes, that is correct.

ADV GCABASHE: Now, I don't know if you have with your legal representative, gone through the documents attached to Selebe's application, these particular documents in this supplement? I was just reviewing over the lunch break, the statements in this document, page 9 by one Gehlig and the statement on page 15, by Van Wyk and the other documents essentially relating to what I think is the same application that you are making now. I am right in that, am I, that you have seen the documents and it is the same set of facts and circumstances essentially as Selebe's?

MR SIBEKO: That is correct so.

MR MAHLALA: It is correct so.

ADV GCABASHE: When you go to page 9, the first statement, essentially what this witness says is that there was a burglary, just the long and short of it, there was a burglary and this was followed by a search around the area for the burglars. They came across this white van and a shootout ensued. Just very roughly, this is what he says.

&#9;He mentions a blue Sierra as well, which is what you mention in your evidence. What is your comment on the statement made by Gehlig on page 9?

MR MAHLALA: I don't deny the statement. This is a statement made by Gehlig. It is his own statements and this is what he said before the Court.

ADV GCABASHE: The impression I get having read the statements, he is saying that the group you were with, essentially committed this robbery, I beg your pardon, the burglary, housebreaking and theft, and you shot at them without any provocation essentially. This is what he is saying here.

&#9;Are you saying that these facts are correct, because they are very different to what you told us in your testimony? Just help me with that.

MR MAHLALA: It is not true, we didn't come here to rob the house. We went to Duduza to collect firearms to defend the community.

ADV GCABASHE: Are you saying that everything that this particular witness says in his statement, is incorrect?

MR MAHLALA: Yes, it is not true.

ADV GCABASHE: You will agree though that they are talking about the same type of motor vehicle, a blue Sierra, they are talking about Glen Thompson, who you mention in your documents as well, as the person who was killed. Are you able to give any further explanation as to where this witness is wrong, and where on particular facts, he might be right, because there are certain similarities, but then there are very fundamental differences as well, between this statement and what you are saying.

&#9;Just to try and separate the issues for us, so that we can understand them.

MR MAHLALA: With reference to the car, it is correct. Even if I can't remember the colour, the truth is my statement, it is correct, especially the one that I am just presenting before the Committee. As I have said that I was coming from Duduza, I don't know whether he was involved in the robbery in his own area.

&#9;I don't know if I have fully explained myself.

ADV GCABASHE: Sorry, you don't know if who was involved in the robbery in his own area, who are you referring to?

MR MAHLALA: Are you referring to the robbery of the car or...

ADV GCABASHE: No, I will come to the robbery of the car in a few minutes. The more material aspects that concern me, in terms of my understanding of your case, concern these two statements by Van Wyk and this other chap, about the facts and circumstances of the shootout, what happened before the shootout, the shootout itself and what happened just after the shootout.

MR MAHLALA: I am referring to the robbery of the car. I was with Levi and that happened at Alrode, as I explained before.

ADV GCABASHE: Can we leave that, the robbery of the car just for a minute and talk about when you were arrested, the shootout and the time that you were arrested in Dawn Park. That is what these statements refer to. Are you with me?

MR MAHLALA: Yes, I understand what is said in these statements.

ADV GCABASHE: And you are saying that what is said in the statements, is a lie, all of it is just a lie? It is not true?

MR MAHLALA: Yes, that is correct.

ADV GCABASHE: You are saying that the people who drove up behind you in the Sierra, shot at you first?

MR MAHLALA: Yes.

ADV GCABASHE: And you thought that these people had come from the roadblock that you had avoided earlier on?

MR MAHLALA: Yes, I thought they were coming from the roadblock because we were under a light, and I thought they were the police.

ADV GCABASHE: Okay. Let's come back to your version. The roadblock was somewhere near Vosloorus. What was the distance between the point where the roadblock was and the point where you parked under the lamp in Dawn Park, just estimate that distance for us?

MR MAHLALA: It was a big distance, we were very far. We were out of Vosloorus and because these are two distinct places, Vosloorus and Dawn Park, so we were far from Vosloorus.

ADV GCABASHE: Now, if I remember well, you were sitting at the back of the bakkie, is this correct?

MR MAHLALA: Yes, that is correct.

ADV GCABASHE: Was this an open bakkie?

MR MAHLALA: It was an open bakkie.

ADV GCABASHE: And at what time of the night was this, there is mention of a light, so I am assuming night time, at what time did this happen roughly?

MR MAHLALA: Even if I can't remember the exact time, I will estimate and say it was about twenty five to six or six o'clock. That is my estimation of the time.

ADV GCABASHE: While you were sitting at the back of the bakkie, did you notice a car following you from Vosloorus to Dawn Park?

MR MAHLALA: No.

ADV GCABASHE: But you were sitting with your back to the passengers inside, your back to the cabin, so you were able to observe the cars that were coming behind you?

MR MAHLALA: Yes, I was able to see those cars coming towards us.

ADV GCABASHE: Why is it that you did not notice this car until it had parked behind you?

MR MAHLALA: As I stated that we only noticed the car when it had already parked behind us, and Vusi was outside, he said they were cocking their firearms and I took my firearm. I didn't see it following us from behind.

ADV GCABASHE: But this is my question, if you were sitting in the back of the bakkie, and you had been sitting there all the way from Vosloorus to Dawn Park, why is it that you did not notice this car approach or park? You only realised that it was there when Vusi mentioned that there was a car, and the guys were cocking their firearms at you.

&#9;It just doesn't sound, I don't quite understand how this could have happened. Now you are able to explain it to me, because you were there, just help me with this.

MR MAHLALA: I would say there is a steep, the area is steep, so you can only see the car when it is already finished ascending the steep, so you wouldn't be able to see it when it is on the other side of the steep.

&#9;I would say from where I am sitting, to the door, you won't see a car if it is coming from the other side, because of the steep in between.

ADV GCABASHE: I am sorry, you have actually lost me now. Was the car approaching from the back or the front?

MR MAHLALA: It was coming from behind.

ADV GCABASHE: Then just go over what exactly happened after Vusi said that these chaps are cocking their firearms at us. Let me ask this question, were you armed?

MR MAHLALA: Vusi and Levi were armed and we also had the guns or the firearms that we went to collect. Vusi shot back and he fell down. After he fell down, I took the firearm from him and I started firing towards the private car.

ADV GCABASHE: So you were not armed until you took Vusi's firearm?

MR MAHLALA: Yes, I wasn't armed.

ADV GCABASHE: And what firearm was that, Vusi's firearm?

MR MAHLALA: It was a shotgun.

ADV GCABASHE: Did Vusi die?

MR MAHLALA: Yes.

ADV GCABASHE: Molefi got out on the other side, and also started shooting?

MR MAHLALA: Yes, that is correct, he was shooting at them with an AK47 and the other man, Jamani, was shooting them with an AK47.

ADV GCABASHE: Where did Molefi get his AK47 from?

MR MAHLALA: It was from the firearms that we were supposed to collect from Duduza.

ADV GCABASHE: And Jamani, also from that batch of firearms?

MR MAHLALA: Yes, that is correct.

ADV GCABASHE: Jamani was shot at well?

MR MAHLALA: No.

ADV GCABASHE: Did he manage to escape?

MR MAHLALA: Yes. He ran to a place which - Levi and Jamani ran away.

ADV GCABASHE: Molefi and Jamani ran away?

MR MAHLALA: Yes.

ADV GCABASHE: You were the only one who was arrested for this incident?

MR MAHLALA: Yes.

ADV GCABASHE: When was Molefi arrested for this particular incident?

MR MAHLALA: I don't know because I was in jail at that time.

ADV GCABASHE: Let me just go back to the robbery, armed robbery, taking the car at Alrode. You gave us the date of the 29th of October 1992, is that correct?

MR MAHLALA: Yes, it is correct, but I am not sure, perfectly sure whether it was the 30th or the 29th.

ADV GCABASHE: On page 21, if this is the motor vehicle, and I am assuming this is the one, the date they give here is the 28th of August, no, it is not the same vehicle. We are talking about October in your instance, this isn't the same vehicle? It is not the same one.

MR MAHLALA: No.

ADV GCABASHE: When you escaped from lawful custody, this is the last aspect, did you escape with Molefi or were you on your own?

MR MAHLALA: I was alone.

ADV GCABASHE: Thank you. Thank you Chair.

MR SIBANYONI: Mr Mahlala, I am referring to your application, I see on page 74, you were asked to state the political objective sought to be achieved and you didn't answer that question. Could you please explain to us what did you intend to achieve by the actions you undertook?

MR MAHLALA: My main aim was to help the community, because there was intense fighting in the community and there wasn't any other way to protect the community. The only way was to participate in fighting or defending the community.

MR SIBANYONI: But specifically by shooting at the occupants of the car, what political objective did you intend to achieve?

MR MAHLALA: As the Commander have already given an instruction that if we are disturbed on our way, we could also be killed, we have to fight to protect these firearms and also to protect our lives. That is why I had to shoot at them, to protect the community property so that I will be able to take them to the township where they were to be used.

&#9;Unfortunately I wasn't able to do that.

MR SIBANYONI: Thank you. That is the only aspect I wanted to be clarified. Thank you Mr Chairperson.

CHAIRPERSON: Mr Mahlala, how long was your trial? How long did it last?

MR MAHLALA: I can't remember.

CHAIRPERSON: Was it a couple of days or did you plead guilty or what is the position?

MR MAHLALA: I pleaded not guilty. I denied that I was guilty.

CHAIRPERSON: The people who testified in that trial for the State, did they stick to their versions?

INTERPRETER: Will the speaker please repeat the question?

CHAIRPERSON: Those State witnesses who claimed to have witnessed the shooting and that whole incident, did they stick to their versions? You heard it then and you have been able to read their statements now, did they stick to their versions?

MR MAHLALA: Yes, but in some other instances, they contradicted each other. They were complainants and they were also contradicting each other in court. They were saying as they were approaching the bakkie, they wanted to see. I don't know what exactly they wanted to come and see and further, I can't remember some of the other things that they said in court.

CHAIRPERSON: Aside from verbal evidence, was there any other type of evidence which the State chose to lead against you?

MR MAHLALA: I don't remember, but I think there were other things that resulted in the Judge finding me guilty and which specifically refers to the car.

CHAIRPERSON: What about fingerprints in 25 Haslink Street? Was there any evidence of your fingerprints being in that house?

MR MAHLALA: They didn't mention anything about my fingerprints in court.

CHAIRPERSON: Not even in the car?

MR MAHLALA: They didn't.

CHAIRPERSON: Were you in a white bakkie that day?

MR MAHLALA: Yes, that is correct.

CHAIRPERSON: And you say that you were on your way or you used the bakkie to go and fetch firearms, correct?

MR MAHLALA: Yes, we were using it to go and collect firearms.

CHAIRPERSON: Describe this bakkie for me, was it a double cab, do you know what I am talking about, with four doors or only two doors on that bakkie?

MR MAHLALA: It was a two door bakkie.

CHAIRPERSON: And you say you and Vusi were at the back?

MR MAHLALA: Yes, that is correct.

CHAIRPERSON: Is that, was there a canopy on it?

MR MAHLALA: No, there was no canopy.

CHAIRPERSON: Are you sure it was a bakkie, I am going to tell you why I am asking that question, I could hardly think that people who were going to fetch illegal arms, would use an open bakkie to transport arms when they are trying to hide those arms away. Can you comment on that?

MR MAHLALA: Yes, it was a white bakkie, I am sure about that.

CHAIRPERSON: I know that. But why use an open bakkie when you are trying to conceal things, especially illegal arms? Why didn't you people rob another person of a car, where you could put the firearms in the boot and nobody would suspect or see anything? Or at least you wouldn't risk anybody seeing the arms?

MR MAHLALA: We didn't select any particular car. It so happened that the bakkie came, and we took it, because it was a Contractor's car. Even if a private car came, we would have robbed it. Whether it was a private car or a bakkie, it was not ...

CHAIRPERSON: You knew why this motor vehicle needed to be stolen, not so, or hijacked? You were aware of the purpose for it, is that not so?

MR MAHLALA: Yes, I knew that we were robbing it in order to use it to carry firearms.

CHAIRPERSON: Is there any particular reason why you never suggested leave this bakkie, because we are going to have to put the firearms on the back of the bakkie, there is more chance of being found out? Let us steal or hijack a closed motor vehicle, so that we can hide these firearms when we are transporting it.

MR MAHLALA: As I think I have already mentioned, that the firearms were not carried in the back of the car, but they were in front where Jamani and Levi were.

CHAIRPERSON: That may be so, but at that time when you stole the motor vehicle, I am asking did it not cross your mind to take further precautions at the risk of being detected?

MR MAHLALA: It didn't come to our minds. What came to our minds is to get a car and with that car, we will be able to get the firearms from Duduza back to the township.

CHAIRPERSON: Now, you say Vusi got off the motor vehicle when it was parked under a light, to go urinate?

MR MAHLALA: Yes, he was passing water by the side of the road.

CHAIRPERSON: And you, as I understand your evidence, this other motor vehicle with these white people, suddenly came and parked behind you?

MR MAHLALA: Yes, although I wasn't sure whether they were white or black people inside at the time, they did come and park behind us.

CHAIRPERSON: Suddenly?

MR MAHLALA: Yes, it happened very quickly, while we were thinking what to do.

CHAIRPERSON: Did you not see this motor vehicle coming on to you from a distance?

MR MAHLALA: No, I personally did not see it.

CHAIRPERSON: Why not, did anything prevent you from seeing it?

MR MAHLALA: It is because where we parked our bakkie, it was on the low area and there is a steep before you reach it, so if you are coming from the other side of the steep, I can only see you when you are close to me.

&#9;I couldn't see further. I am trying to describe the road, how it was.

CHAIRPERSON: Did anybody use the hooter of that bakkie at that time, immediately before the shooting?

MR MAHLALA: No, I didn't hear the sound.

CHAIRPERSON: Is it possible someone did use the hooter of the bakkie?

MR MAHLALA: No. I didn't hear the bakkie's hooter.

CHAIRPERSON: I am given to understand in the trail, it was alleged that the house in Haslink Street was burgled, is that correct?

MR MAHLALA: I don't know because I didn't go there to rob such a house, I went to collect the firearms, so I don't know about it, it is not true.

CHAIRPERSON: Did you hear that in the trial?

MR MAHLALA: Yes, I did hear about it.

CHAIRPERSON: Do you know, I am not saying you were guilty of it, do you know whether that house was in fact burgled?

MR MAHLALA: No, I didn't.

CHAIRPERSON: Also in your trial it was said that certain appliances, amongst which was a television, was found in the veld in close proximity to where you people were parked that day. 

MR MAHLALA: In court, they didn't discuss anything about TV and they didn't mention anything which was found in our vicinity. The only thing that were found or discovered, were firearms where we were.

CHAIRPERSON: And you say your fingerprints were found inside the bakkie?

MR MAHLALA: No, it wasn't mentioned to me in court.

CHAIRPERSON: I am sorry, I thought you said that your fingerprints were found inside the motor vehicle. Did you not say so? I am sorry if you didn't say so.

&#9;Did you mention anything about fingerprints?

MR MAHLALA: No.

CHAIRPERSON: And you don't know how many firearms were found?

MR MAHLALA: I don't remember.

CHAIRPERSON: You got ten years for murder?

INTERPRETER: Will the speaker please repeat the question?

CHAIRPERSON: Did you get ten years for murder?

MR MAHLALA: Yes, that is correct.

CHAIRPERSON: And for the attempted murder?

MR MAHLALA: They mentioned ten years consecutively, so I can't remember, but I ended up with 33. They also mentioned three years in one of the charges.

CHAIRPERSON: That was for the unlawful possession of firearms and ammunition, I suppose. You got ten years each for murder, attempted murder, armed robbery and that ran separately? Is that not so?

MR MAHLALA: Yes, they combined everything.

CHAIRPERSON: According to your record, you will serve an effective 20 years imprisonment?

MR MAHLALA: Yes, I am serving a 20 year sentence.

CHAIRPERSON: Thank you, you are excused.

WITNESS EXCUSED

MR SIBEKO: Mr Chairman, this was the only application I had for today. May I be excused?

CHAIRPERSON: What do you mean for today, have you got more tomorrow?

MR SIBEKO: I still have to go through the list that is here with Mrs Nhlayisi to see whether there are still outstanding applications which are hearable.

CHAIRPERSON: Mr Sibeko, why was this not done over the weekend?

MR SIBEKO: Mr Chairman, we prepared this report which was given over to Mr Steenkamp sometime last week, and then there were applicants that were not consulted as yet.

&#9;We tried to secure some over the weekend, and I left Mrs Nhlayisi to consult with them. I am not sure as yet whether those are hearable.

CHAIRPERSON: When are we going to hear about whether there are further applications?

MR SIBEKO: Just before we adjourn.

CHAIRPERSON: Can't I adjourn now and then you can sort it out, if necessary we can continue with the hearing?

MR SIBEKO: (indistinct)

CHAIRPERSON: Please, we will adjourn.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Yes Mr Steenkamp?

ADV STEENKAMP: Thank you Mr Chairman. Mr Chairman, I don't know if it is the proper time to do so, but we do have the Attorney appearing for the Khanyile family here today, Mr Shane is here.

&#9;As I understand, we are going to deal with the matter of Mr Buthelezi, who is also an applicant in the killing, the murder of Mr Khanyile. There is a request from the Attorney, if I may do so Mr Chairman, with all due respect, to place herself on record, and just to inform you officially what the position regarding the family is and regarding certain documents that were handed in. If that may be done within a jiffy, thank you sir.

MS BOSSARD: Thank you Mr Chairman, as previously stated I appear on behalf of the Khanyile family.

CHAIRPERSON: Could you just announce your name for the purposes of the record please.

MS BOSSARD: My name is Tracey Bossard, I will be appearing on behalf of the Khanyile family, namely Sothole Khanyile, Msizwe Khanyile and also on behalf of the aunt, Margaret Mabuza. We would just like to place on record, that they are all present today.

&#9;Mr Chairman, we further wish to place on record that we have handed in the affidavits on behalf of the victims. They have also been handed to my colleague, he is well aware of the contents, he has had an opportunity to peruse them. We have however, not any idea what his position is on these documents at this stage.

CHAIRPERSON: Can we mark that bundle, Exhibit 6.

ADV STEENKAMP: As you wish Mr Chairman, that is correct Mr Chairman, it must be Exhibit 6. Mr Chairman, I do apologise, unfortunately I am sitting here with the original. I do apologise profusely, I would like permission just to hand in the originals if I may do so.

CHAIRPERSON: I do have an original.

ADV STEENKAMP: Apparently sir, they are all signed. Thank you, I am sorry sir, thank you sir.

CHAIRPERSON: Anything else Ms Bossard?

MS BOSSARD: No thank you Mr Chairman, it is fine.

CHAIRPERSON: You indicated that you had not had any response from who?

MS BOSSARD: From my colleague, Mr Shane.

CHAIRPERSON: I think he may be in a better position at the end of the day, to tell you what he wants to do. Mr Shane?

MR SHANE: Thank you Mr Chairman. I have read the affidavits and discussed it with the applicants. In fact the only applicant I could discuss it with today was (indistinct).

&#9;He is adamant that he had information that can prove that the late Bheki was in fact a member of the IFP and was in fact ...

CHAIRPERSON: Mr Shane, I am going to stop you right there. This is not the time to discuss the merits and the contents of this affidavit. All I wanted to know was whether you have any procedural objection to the handing in at the moment?

MR SHANE: Sorry sir, I misunderstood you. No objection to handing in the affidavit, thank you.

CHAIRPERSON: Can we proceed with what you want to do?

MR SHANE: My position Mr Chairman, we don't object, as I said we don't object to the affidavits, my position is that the two applicants will deny what is contained in the affidavit of Margaret Mtombiyotwa Mabuza, paragraph 4 and they deny that they had anything to do with registration, car registration documents, these are denied, and my instructions ...

CHAIRPERSON: Mr Shane, I thought I just made myself quite clear. Last time, I looked in the dictionary, merits means exactly what you are discussing now. We don't want to discuss the merits of these affidavits as yet.

&#9;Just forget about Ms Bossard's request, I have dealt with that. I understand that you have certain applications to make. Let's get on with that.

MR SHANE: Sir, I would like the Committee to reconsider the application made last week, in respect of Mzwake Buthelezi, who is not, whose application has been lost. This is the application dealt with on Thursday.

&#9;I submit it is relevant to the opposition to amnesty by the Khanyile family. I am ready to proceed, I have supplementary affidavits and copies. My client was present a few minutes earlier on, he is there, I would like to call him up, please Mr chairman.

CHAIRPERSON: Mr Shane, before we proceed any further, let me get this clear. There is a person, a South African citizen, who alleges that he made an application for amnesty for whatever reason, to the Truth and Reconciliation Commission, namely the Amnesty Committee, do I understand it correctly so far?

MR SHANE: He made an application before or on the deadline day for amnesty.

CHAIRPERSON: That matter has not been set down, am I correct?

MR SHANE: That is correct sir.

CHAIRPERSON: It would see, I am informed, the reason for that matter or that alleged application, not being enrolled, is because such an application is either never arrived at the offices of the TRC or that it is not to be found. Am I correct?

MR SHANE: Sir, he says the application did not get to the TRC offices, correct, it was made on the 10th of May and it got lost from the time he signed his application, completed the form. It got lost. It could have got lost after it was handed to the TRC office at that time, at that time they were in the Sanlam Building, it could have been lost after it was given to them, or it could have been lost between the time it was signed by him and brought to the TRC offices.

CHAIRPERSON: Now last week, when you made a similar attempt to get this application on the role, I pointed it out to you that I was going to give you the time, and your client the time, until today, to do the necessary in order to satisfy this Committee that in fact, the document is not before this Committee through the fault of the TRC, not so?

&#9;Are you able to satisfy us on that score?

MR SHANE: I hope to Mr Chairman. I don't know if affidavits have been, further affidavits have been placed before you. I have a supplementary affidavit Mr Chairman, of the applicant. That is a short affidavit, just giving further details, and I have an affidavit of Sally Sealy before you.

&#9;There is another affidavit, it is just a confirming affidavit by George Ndlozi. Unfortunately, he is - I don't want to give you an unsigned document sir, he is not available to sign that affidavit. It is just a very short affidavit, basically confirming what Sally Sealy has said.

CHAIRPERSON: And now, what must I do with this?

MR SHANE: The affidavit of Sally Sealy and the applicant, supplementary affidavit of the applicant.

CHAIRPERSON: And now?

MR SHANE: Mr Chairman, I submit that on what you've got before you, it seems quite clear that Mzwake Buthelezi did on the 10th of May 1997, make application for amnesty together with very many other people.

&#9;I submit sir, that on the papers before you, it is quite obvious that what happened to his application, cannot be attributed to any fault on his part. Mr Chairman, with the greatest ...

CHAIRPERSON: Can it be attributed to any fault of the TRC, that is the issue?

MR SHANE: I submit Mr Chairman, from this he doesn't know, it got lost somewhere on the way. Mr Chairman, if you look at your mandate, your function here I submit with respect, is clear, your function is the promotion of national unity and reconciliation, and Mr Chairman, I submit there is nothing to suggest that anything underhand has gone on here.

&#9;The applicant as he says in his affidavit, became worried about this, when he didn't get a notice to attend the TRC hearings. He never ever before, he never checked if he got an acknowledgement, he didn't know about the acknowledgements. I submit that is not important Mr Chairman.

&#9;The fact is this, as the affidavit of Sally Sealy suggests, this is not the only application form that has gone missing, it could be human error. I submit it is no error on the part of the applicant, because he did make his application. He cannot say what happened to his application form. 

&#9;Then it is also backed up by the fact that under oath, you heard from his co-applicant, I think it was Mutshatsha, who testified under oath that the applicant, Mzwake Mbuli was also there that day with him, when they filled in their forms.

&#9;Mr Chairman, I submit that your mandate says that you have to lean over backwards in favour of let's call him the applicant, although there are no papers before you, and I submit that on what you've got before you Mr Chairman, it is sufficient to allow the applicant to have an opportunity to satisfy you that he is entitled to apply for amnesty and get amnesty in terms of the Act.

&#9;Mr Chairman, I submit there is nothing more that this applicant or the proposed applicant, because he is not really an applicant before you, but I submit that it is quite clear from what you've got before you, that he was there.

&#9;I also ask you Mr Commissioner, to take into account what probably on the 10th of May 1997, what was for all involved, a major chaotic day, stressful, hectic, it is a day when things could have gone wrong. This could have possibly fallen in the car, anything could have happened to it, but this application form did not get to the TRC, that is what we know.

ADV GCABASHE: It did not get to the TRC?

MR SHANE: Sorry, it did not get to be processed by the TRC, I should rather put it. It might have got to the TRC offices as I said, and something happened to it thereafter, or before it got to the TRC offices, something might have happened to it, but from the applicant's point of view,he went on the last day to make application for amnesty and something went wrong with his application form and it vanished. That is all he can say Mr Chairman.

&#9;I submit that before you, you can be satisfied that he was there and he did apply with all his comrades for amnesty. That is clearly before you Mr Chairman, and I submit in the absence of anything to suggest otherwise, you must accept that with the greatest respect sir.

CHAIRPERSON: Are you done? Mr Shane, there is a few things I need you to clear up in making this application.

&#9;You are in fact making an application to get this on the role?

MR SHANE: Correct Mr Chairman.

CHAIRPERSON: It is common cause that it is not on the role?

MR SHANE: Correct Mr Chairman.

CHAIRPERSON: You have made certain submissions which include amongst others, that there is ample evidence to indicate that your client had in fact completed a form with the assistance of one Sally Sealy?

MR SHANE: Yes sir.

CHAIRPERSON: She says as I understand, that there were a number of applications that day that were put into a box and subsequently handed in to an employee of the TRC in Johannesburg?

MR SHANE: Correct sir.

CHAIRPERSON: You have gone further and says well, look, we accept that it is missing now, it could have got lost en route to the TRC offices, it could have got lost at the Johannesburg offices, it could have got lost en route from the TRC offices Johannesburg, to TRC offices in Cape Town, and that is why it wasn't processed?

MR SHANE: Correct Mr Chairman, I say that in so far as I was explained the procedure of these applications.

CHAIRPERSON: Yes. What would be the case or the position, if it was lost assuming I accept that the application form was completed, and intended to land up in Cape Town for process, what would be the case if it did not land at the TRC offices, Johannesburg and got lost in the motor vehicle or somewhere before then?

MR SHANE: Mr Chairman, let us assume then that for example the box, a big box, the box with all the applications were being carried to a car, Mr Buthelezi's application was right on top and the wind blew it away and it went missing before it got in the car, that is a similar scenario to what you have suggested, in that case Mr Chairman, I would submit that if the applicant was present, and you are satisfied that he was present and he filled in his form, then I would submit that you would give the applicant the opportunity to bring his application in circumstances like that.

CHAIRPERSON: Now, that would be an exception to the rule. Do you agree?

MR SHANE: To what rule Mr Chairman?

CHAIRPERSON: That by the 10th of May 1997 at, call it 12 o'clock in the morning, I think ...

MR SHANE: Yes, midnight?

CHAIRPERSON: Yes, such applications had to be submitted and not later. Do we at least agree on that?

MR SHANE: Mr Chairman, yes, that is what the Act says must be submitted.

CHAIRPERSON: Am I empowered to go beyond that?

MR SHANE: I submit with the greatest respect sir, you are empowered to go beyond that.

CHAIRPERSON: Show me the empowering clause.

MR SHANE: Mr Chairman, I can't show you an empowering clause, but if the purpose of your function is the promotion of national unity and reconciliation, Mr Chairman, there are no rules, there is no precedence, there is no court rules to go on, this is not a court of law, I submit by the very nature of the legislation, promotion of national unity and reconciliation, it would mean that your application of the rules should not in any way be restricted and I would submit Mr Chairman, that only if there were for instance, if there was evidence before you that the applicant was not there, that he was lying or that he came the following day, too late, that is a different issue.

&#9;I submit Mr Chairman, with the evidence of Sally Sealy, with the evidence of the previous applicant that Buthelezi was present, I submit that you cannot view it in a restrictive way with the greatest respect sir.

CHAIRPERSON: What is the test Mr Shane? Isn't the test to check and to see whether the application form completed, had reached the offices, it doesn't matter whether it was Johannesburg or Durban or Cape Town or East London, wherever, as long as it was in the hands of the Commission by twelve o'clock that day, is that not the test?

MR SHANE: Mr Chairman, I would say not, because if I may ask you this question, Mr Chairman, what would have happened for example if after having loaded the box in his vehicle, the TRC official on his way back to Johannesburg, say at half past eleven in the evening, got hijacked, which was a common thing then, and the whole box ...

CHAIRPERSON: Well, it would have been in the hands of the TRC, not so?

MR SHANE: It would have been in the hands of the TRC and there would have been no applications brought to the TRC, with respect Mr Chairman.

CHAIRPERSON: Then we would have handled it on that basis as accepting that the time restraints on applications, had been complied with, by twelve o'clock that morning, those applications should have been where it was supposed to be.

MR SHANE: Well, I submit Mr Chairman, because this application was handed to Mr George Ndlozi, a TRC official ...

CHAIRPERSON: Who said so?

MR SHANE: Sally Sealy says so, sir.

CHAIRPERSON: What did she say?

MR SHANE: I refer you to paragraph 6.

CHAIRPERSON: Read it.

MR SHANE: I handed the box to Mr George Ndlozi.

CHAIRPERSON: She handed a box, Mr Shane. How do we know that that box contained that application?

MR SHANE: Mr Chairman, if that is viewing it restrictively, I refer you to paragraph 5. In paragraph 5, Sally Sealy says I am surprised that this application form is missing as I took this form to the TRC offices at the Sanlam Centre, Johannesburg, at quarter to twelve on the 10th of May, along with many others, in a photocopy paper box.

CHAIRPERSON: I am sure she did it, yes. How do we know.

MR SHANE: Mr Chairman, if you are looking at it restrictively and if you are, there is someone who says this is not true, that is a different story, but Mr Chairman, there is nothing, I submit that it is quite clear that this is the same box she was talking about.

&#9;This was put in a box, she brought the box to, she gave the box to Ndlozi, a TRC official and in that box, was Mzwake Buthelezi's application form.

CHAIRPERSON: Does she say so?

MR SHANE: Well, she put it in the box. Mr Chairman, I mean if necessary, Sally Sealy is outside, I can if you like, I could call her. She was outside a few minutes ago.

CHAIRPERSON: Mr Shane, Mr Shane, you are not going to treat this hearing like an informal hearing.

MR SHANE: No, no sir, I ...

CHAIRPERSON: Now listen to me. We were talking about the scenario that you pictured, pen pictured here about the flying away with the ill-wind of this application form on the top of the box. What would be the position of the applicant then, that is where we were.

MR SHANE: Right, if his form when it was being loaded in the car or something, got lost, blown away or whatever, I would submit Mr Chairman, with the greatest respect, it was given to an official of the TRC and it was given before the deadline on the 27th of May.

CHAIRPERSON: If it was blown away, then it wasn't given to the TRC.

MR SHANE: No, no sir, I am saying if it was given, the box was given, it was put in a box, it was given to Mr George Ndlozi, it was in the box. George Ndlozi, being a TRC official, I submit that is sufficient.

CHAIRPERSON: Are we able to say that that application form completed, that application form that we are talking about, was in fact in the box at the time that box was handed over to the TRC official?

MR SHANE: I submit yes, sir.

CHAIRPERSON: How can you say that?

MR SHANE: Well sir, you know, at the time with respect, Sally Sealy was present, she was dealing with not one, numerous applications.

&#9;That is the procedure she adopted. No one can expect them to know about each individual piece of paper that they got. There were many, and the applicant, well Mzwake Buthelezi's was there, together with numerous others. His happens to be missing, like some others got missing. It is human error, it could have been on the part of Ndlozi, I submit that Ndlozi did receive it with the others.

CHAIRPERSON: Why does it have to be the fault of the TRC? Why is it only, the possibility only in respect of the TRC officials?

MR SHANE: Oh no, Mr Chairman, one cannot exclusively put the blame on the TRC, you cannot exclusively put the blame on the TRC, it is also possible, the possibility exists, but remember Mr Chairman, it is only a possibility, the possibility exists that maybe this form, maybe it dropped out of Sally Sealy's hands before she got to Mr Ndlozi. That is a possibility.

&#9;One will never know Mr Chairman.

CHAIRPERSON: Precisely.

MR SHANE: But because Mr Chairman, and I mean Sally Sealy can't say that that is impossible that that happened. Do you have to look at it because that might have happened, what you've got before you, is not sufficient to have this application heard?

CHAIRPERSON: Show me this clause that empowers me to do that.

MR SHANE: Mr Chairman, with respect, my submission with respect, the greatest respect is that you have power to do anything that is in the interest of the promotion of national unity and reconciliation.

&#9;There is no clause.

CHAIRPERSON: Where do you see that, where do you see that?

MR SHANE: Well Mr Chairman, that is the purpose of the Commission, to promote, I cannot give you the law, there is no Act that empowers you to do so.

CHAIRPERSON: Now let me tell you something. I am going to adjourn after I make these comments and I want you to go and consider it at home.

&#9;Section 19 says the Committee shall consider applications for amnesty, not amnesty for enrolment, applications for amnesty, that is Section 19(1).

&#9;Subsection (2), the Committee shall investigate the application and make such enquiries as it may deem necessary. Subsection (3), after the investigation, the Committee may inform the applicant of the application, etc, afford the applicant an opportunity to make further submissions, decide whether the application, judged on its particulars referred to above, relates to an act associated with a political objective. And so it goes on.

MR SHANE: And it only deals with applicants Mr Chairman, we don't have an applicant before you?

CHAIRPERSON: And it only deals with applications, and neither do I have an application before me.

MR SHANE: That is my problem Mr Chairman, and that is why I have ...

CHAIRPERSON: At least we have progressed, it is your problem, not mine.

MR SHANE: Well, it is my client's problem Mr Chairman, he wanted, he is concerned about it and he wants his application for amnesty to be heard.

CHAIRPERSON: You know Mr Shane, on Thursday when we adjourned, we wasted a day on Friday, we didn't sit, okay. We all agreed, including you that today would be the day you would consider your position and then finalise this.

MR SHANE: Yes.

CHAIRPERSON: You come with additional affidavits that don't help us at all. You still haven't satisfied me, these affidavits haven't satisfied me one bit, that this application form completed was in the hands of the TRC, either by way of agency or otherwise.

&#9;That was the test. Now you come and ask me to overlook that and listen to the application. If I must make a decision like that, it carries a lot of ramifications and implications. I am not empowered to do that.

MR SHANE: I understand that Mr Chairman, I am not asking you to overlook it, I am asking you to find that on the papers before you, on a balance of probabilities, obviously it can never be beyond reasonable doubt, but I am asking you to find that on the papers before you Mr Chairman, that on a balance of probabilities, his application was with the TRC, was handed to an official of the TRC. The rest as to what could have happened to it, is pure speculation. I will concede there is a possibility, there is a possibility that maybe his application didn't get to the hands or into the control of a TRC official, there is that possibility.

&#9;On a balance of probabilities, what you've got before you, you can find that his application was handed in timeously to the TRC or to a TRC official, on a balance of probabilities.

CHAIRPERSON: It is not that easy Mr Shane, because you argue from one point of view that because it was not processed, and because he attended this gathering where applications were made, the other applicants' applications were processed, therefore I can safely draw the conclusion that your client, or the applicant in this case, his application must have landed in the hands of the TRC. That is fine, that is one view.

&#9;The other view also is that because all the others were processed, why wasn't yours or your client's, if it was there?

MR SHANE: Mr Chairman, that the TRC is run by human beings, and human error creeps into everything. It could be human error.

CHAIRPERSON: I dare say that your client was also assisted by human beings?

MR SHANE: Yes, with the greatest respect Mr Chairman, he was assisted by human beings, and when I consulted with him, he is adamant that his form went in and he wants to make application for amnesty because he killed people. He also wants to go through this healing process or whatever one may call it, on a balance of probabilities, not beyond reasonable doubt.

&#9;On a balance of probabilities, you can find that his application was in timeously to the TRC, to an official of the TRC, on time, and something then went wrong. That I submit, it is possible that something could, but on a balance of probabilities, and that is all you need sir.

&#9;I submit you don't need anything before you beyond reasonable doubt.

CHAIRPERSON: I am not suggesting that. I must be satisfied, I am not even talking about a balance of probabilities. All I am saying is satisfy us. It is slightly easier.

&#9;Another issue I want to raise with you, you know that our attention has been drawn to what the deponement of one of your affidavits said in a criminal trial, correct?

MR SHANE: Yes Mr Chairman.

CHAIRPERSON: Now, what is the position about that? Can we rely on this affidavit, given that evidence?

MR SHANE: Absolutely sir, with respect.

CHAIRPERSON: On the one hand she says the this matter is not a political matter and then she goes about assisting people, making allegations that it was done for political reasons.

MR SHANE: Mr Chairman, I submit with the greatest respect that that whole passage was taken totally out of context, and I would ask you Mr Chairman, if you were to read, because I did discuss it with that person, and it appears that it was taken out of context, if the whole evidence that she gave and it relates to evidence that she gave in mitigation of sentence, she said usually, generally the killing of policemen is not a political offence, generally but it goes further.

&#9;I must be honest sir, I haven't read the whole report, but I have discussed it with her and my instructions are that it was taken out of context. Then in answer to your question, I submit that you can accept the affidavit of that person, in the application to hear Mzwake Mbuli, I mean Buthelezi, sorry sir, Mzwake Buthelezi, I apologise for that.

CHAIRPERSON: Do you agree that you are in no position to allege, or you provided no evidence at all, to say or to indicate that that application was in the hands of the TRC timeously, you are asking us to draw inferences?

MR SHANE: I am asking you to draw an inference, and I have also, as I have indicated sir, the affidavit, I do have another confirmatory affidavit of the person known as George Ndlozi, the TRC official. Unfortunately George Ndlozi was not available to sign the affidavit, although I did have a lengthy consultation with him, he had to run off before he could sign it. That wouldn't take you much further.

CHAIRPERSON: We are going to take overnight to consider this matter, and we will give a decision on it tomorrow morning. We will adjourn until tomorrow, nine o'clock.

ADV STEENKAMP: Thank you Mr Chairman.

COMMITTEE ADJOURNS

