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

&#9;AMNESTY HEARING

DATE:&#9;14TH APRIL 1999&#9;

NAME:&#9;MILTON BEKI MHLONGO

APPLICATION NO: AM 4042/96

MATTER:&#9;MURDER OF MR JOUBERT AND ROBBERY

HELD AT:&#9;CENTRAL METHODIST CHURCH, &#9;&#9;&#9;&#9;JOHANNESBURG

DAY :&#9;3

--------------------------------------------------------------------------CHAIRPERSON: For the record, I am Judge Pillay and I'm going to ask my colleagues to identify themselves for the purposes of the record.

DR TSOTSI: Doctor Tsotsi, an attorney, Port Elizabeth.

ADV SIGODI: It's Advocate Sigodi from the Port Elizabeth Bar.

CHAIRPERSON: Who appears for the applicant?

MR MOHLABA: Booker Mholaba, an attorney from Pretoria.

MS THABETE: Thabile Thabete, Evidence Leader, TRC.

CHAIRPERSON: Mr Mohlaba, call your first case.

MR MOHLABA: Thank you, Chair. I am calling Milton Beki Mhlongo, and that is page 39 of the paginated bundle.

CHAIRPERSON: 99?

MR MOHLABA: 39 according to - it would appear that the bundle has since been changed after the very first bundle was allocated to me, but I confirm that the pagination has changed, but the documentation contained are still the same.

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

MR MHLONGO: Zulu.

CHAIRPERSON: Please rise.

MILTON BEKI MHLONGO: (sworn states)

CHAIRPERSON: Please be seated.

EXAMINATION BY MR MOHLABA: Mr Mhlongo, you were born on the 24th of March 1964 in Pietermaritzburg, is that correct?

MR MHLONGO: That is correct.

MR MOHLABA: You are presently serving a prison term, is that correct?

MR MHLONGO: That is correct.

MR MOHLABA: Can you explain to the Committee why are you serving a prison term, for which offences?

MR MHLONGO: Robbery and murder.

MR MOHLABA: And you are before the Committee to apply for amnesty in respect of those offence, is that correct?

MR MHLONGO: That is correct.

CHAIRPERSON: For one count of murder and one count of robbery?

MR MHLONGO: That is correct.

CHAIRPERSON: Just before you carry on, the one count of murder involved who, or what date did it take place? I just need to identify the ...(intervention)

MR MHLONGO: This happened in 1993, on a Friday in September.

CHAIRPERSON: Do you know the name of the deceased?

MR MHLONGO: It's Mr Joubert if I'm not mistaken.

CHAIRPERSON: And the robbery, when did that take place?

MR MHLONGO: It happened on the Friday the 10th of September 1993.

CHAIRPERSON: Is that the same day as the murder?

MR MHLONGO: Yes.

CHAIRPERSON: Good. Proceed.

MR MOHLABA: You were prosecuted in the Transvaal Provisional Division of the then Supreme Court and found guilty in respect of these offences, is that correct?

MR MHLONGO: That is correct.

MR MOHLABA: You were also charged with unlawful possession of arms and ammunition, is that correct?

MR MHLONGO: That is correct.

MR MOHLABA: Is it your desire also to apply for amnesty in respect of these two offences?

MR MHLONGO: That is correct.

MR MOHLABA: The basis on which you're applying for this amnesty is that these offences were committed with a political objective, is that correct?

MR MHLONGO: That is correct.

MR MOHLABA: Did you during the period of 1993, that is the period during which this offence was committed, a member of a political organisation or an institution?

MR MHLONGO: That is correct.

MR MOHLABA: Can you mention the political organisation?

MR MHLONGO: I was part of, or a member of the ANC.

CHAIRPERSON: For how long?

MR MHLONGO: It's been quite a long time.

CHAIRPERSON: How long?

MR MHLONGO: From round 1989.

MR MOHLABA: Were you also a member of the Self Defence Unit?

MR MHLONGO: That is correct.

CHAIRPERSON: Where?

MR MHLONGO: At Tsakane.

MR MOHLABA: Can you explain to this Committee how you joined the SDUs and the reasons therefore, were you invited or did you voluntarily join the SDUs. And if there's any reason for your doing that, can you please explain with clear details.

MR MHLONGO: I joined the ANC in 1989, resulting from the situation. In 1990 we put up some shacks in the area where we resided.

MR MOHLABA: Continue.

MR MHLONGO: It so happened that we were invited by the people who were in charge of the area, inviting us to come and join the ANC, so that we were forced to join the ANC.

CHAIRPERSON: You joined the ANC against your will?

MR MHLONGO: They forced us or forced me. It's because of the situation that one joined.

CHAIRPERSON: Carry on.

MR MHLONGO: We joined the ANC in 1989, so that in 1990 we put up some shacks at now known as Mandela Village. When we put up these shacks in Tsakane in 1990. As the ANC patrolling in the evenings it happened that we held a meeting in 1993 in Tsakane and it transpired that we had a need for firearms to fight against the IFP in the area and the community of Tsakane, that is the ANC community, did not have firearms and as a result of that a word that came from the ANC to the effect that we should procure some firearms, which we did. We went out to look for these firearms. ...(intervention)

CHAIRPERSON: Was that the reason you went out to look for firearms and to rob people, or commit crimes in order to take physical custody of firearms and ammunition? Do I understand you correctly?

MR MHLONGO: Yes, we went out with the intention of looking for firearms.

CHAIRPERSON: Carry on.

MR MOHLABA: Mr Mhlongo, take us through the incident which happened on this day when you went out to commit this robbery where Mr Joubert was killed. Can you tell us how it was planned and all the roles which you have played?

CHAIRPERSON: Was this also one of those ventures where you went to look for firearms?

MR MHLONGO: Yes, that is correct, because we held a meeting before the 10th, on a Friday in 1993. We had a meeting so that there was an order that came from Shavias Biaha to the effect that we should secure firearms for ourselves and somebody came up with an idea as to where we could get hold of these firearms. This person came on the 10th to inform us where to get hold of the firearms, so that the ANC ordered that I accompany these boys to go and get the firearms. We used a vehicle that belonged to accused number 4. We went to Delmas and we got into the place. We found two white men sitting in the kitchen. Myself as well as accused number 2, took one of these white men and we took him to the bedroom and two of us ...(intervention)

ADV SIGODI: Sorry, please Mr Mohlaba control the applicant, we've got to take notes and it is also interpreted, so it's difficult for the interpreter to catch up with him.

MR MOHLABA: I thank you. Mr Mhlongo, can you just try and pause to enable the Committee Members to jot the necessary points and if there are names of people - because the accused number 2, the numbers of the accused are not known to the Committee, could you please mention them by names if you can still remember them.

MR MHLONGO: Before the 10th of September, it was on a Friday in 1993, we held a meeting at Vuyana, or Vuyani in Tsakane, we as the ANC. It was discussed that we should secure ourselves firearms to face the situation in our area at Tsakane. 

&#9;Indeed I met with Joseph Fani Nkosi and I informed him that we required things such as firearms to be used in the protection of our community. He then suggested that there was place where we could procure firearms.

&#9;We fixed an appointment with Fani Nkosi. We discussed with Joseph Fani Nkosi when he told me that we could get firearms but we would need a vehicle. We decided then that we should look for a vehicle and we used accused number 4's vehicle.

&#9;I came back to report to the members of the ANC with whom I was working, reported to them that I had already secured something with, or secured information about where to procure firearms. So we then left with these people to look for these firearms.

DR TSOTSI: Who is accused number 4?

MR MHLONGO: Glen Boy Tshabalala.

ADV SIGODI: According to the judgement here, there were only three accused.

MR MHLONGO: I'm the fourth one.

ADV SIGODI: No, you were number 1, you were accused number 1.

MR MHLONGO: You mean in the case?

CHAIRPERSON: Yes.

MR MHLONGO: No, I wasn't accused number 1.

CHAIRPERSON: You are MB Mhlongo, not so?

MR MHLONGO: Yes, that is so.

CHAIRPERSON: This judgment we have from that judge, he signed it, he says you're accused number 1, FJ Nkosi, I assume it's Fani Nkosi, is accused number 2 and Kleinbooi Tshabalala is accused number 3.

MR MHLONGO: Yes, at the Court I was accused number 2, Fanie Nkosi was accused number 1 because the third one was on bail, he was out on bail and I therefore became accused number 2.

CHAIRPERSON: Carry on.

MR MHLONGO: Joseph Fani Nkosi arrived indeed on a Friday in Kleinbooi Tshabalala's company and they were three when they arrived. Keifas was there as well, Keifas Kweniga.

&#9;When they arrived I took them with to Shavias Biaha, who was our leader in Tsakane branch of ANC. I showed them to him and I also showed Shavias the owner of the car.

&#9;The owner of the car demanded petrol money and R15 was tendered to him. We got some gas and we left on a Friday. Joseph Fani Nkosi was the one directing the driver as to where we were going until we arrived at that particular house in Delmas.

&#9;The car was parked outside and it was at night, around something to nine. We entered the house. We found two white men in the kitchen. Myself and the owner of the car, Kleinbooi Tshabalala captured one or we held one white man and we went with him to the bedroom and we asked for weapons from him like firearms and he showed them to us and at the same time he was resisting. We got hold of an electrical wire in the room and we tied him with it. 

&#9;He showed us the safe where the firearms were concealed and the ammunition as well. We opened the safe and took what was contained in it. When we were going out in the kitchen we found out that the other white man whom we left in the kitchen was lying on the ground bleeding profusely.

&#9;I asked Joseph Fani Nkosi as to what was the matter and he answered and said Keifas Kweniga stabbed that man. Keifas Kweniga was the one who was left with him in the kitchen when we were busy dealing with the other man in the other room, in the bedroom. And Kweniga said no, Joseph Fani Nkosi, you are the one who stabbed and I asked the reasons that led to this offence and they said he was making a noise, that man, the white man.

&#9;When I tried to lift him up to sit on the chair in which he was sitting, I discovered that he did not have any strength and I left him lying there as well and we left with our firearms, with those firearms rather, and we went back to Tsakane.

&#9;We got the firearms that we got there ...(intervention)

CHAIRPERSON: How many firearms did you leave with?

MR MHLONGO: Three.

CHAIRPERSON: Was it three pistols, three rifles or a mixture?

MR MHLONGO: Pumpgun.

CHAIRPERSON: Three?

MR MHLONGO: One pumpgun and an R4 and another one that was a bit massive and that used a different kind of ammunition.

CHAIRPERSON: And did you get ammunition there?

MR MHLONGO: Yes, we did gather quite many of them, ammunition that is.

CHAIRPERSON: Is that all you people left with?

MR MHLONGO: Yes, we left with all of that.

CHAIRPERSON: Is that all you took?

MR MHLONGO: Keifas also had something else that looked like binoculars, a set of binoculars.

CHAIRPERSON: That's all?

MR MHLONGO: Yes, that's all.

CHAIRPERSON: Carry on.

MR MHLONGO: We took all of that and we went back Tsakane, arrived in Tsakane at night. I think it was about 1 or 2 a.m. on Saturday. We took these firearm to Shavias Biaha and Mhlango and Mshudulu. Those were the ones who ordered us. We left those firearms with them. &#9;On that very Saturday morning we went back to them, we left the house in other words and went back to them on Saturday morning again and I was telling them that I was due to leave to Kwandabele and the same day, Saturday, I left for Kwandabele and came back or returned on Wednesday. 

&#9;Friday now - well Friday morning, early hours Friday morning I saw them arriving with police at my house ...(intervention)

CHAIRPERSON: Just hold that. Ms Thabete, those people he just mentioned, were they informed?

MS THABETE: Are you referring to the co-accused, Chair?

CHAIRPERSON: No, those people to whom the guns were taken.

MS THABETE: What happened is, our Investigator went to the plot mentioned in the judgment and they no longer live there, so we did make a media advertisement for them to contact us, but no-one contacted us.

CHAIRPERSON: Okay. Carry on.

MR MHLONGO: On the 17th of September 1993 on a Friday, I think it was about 2 or 3 in the morning, the policemen arrived in a Kombi with two bakkies or vans and they knocked at the door ...(intervention)

CHAIRPERSON: Were you arrested eventually?

MR MHLONGO: On the 17th I got arrested, 1993, on a Friday morning. When they came to me they asked, when they got to me they asked as to whether I'm Beki Mhlongo and I said and they said I should dress up and they asked me about accused number 1, Joseph Fani Nkosi and I took them to where he resided and that's how we were apprehended. And in the kombi I found the other people that we handed firearms to already arrested. And we were all taken to Springs Police Station in the morning. Midday we were transferred to Benoni Hyper Square. 

&#9;When we arrived there in Benoni during the day we took the Benoni Police to show them the scene where this whole thing was committed and we got to that particular scene and we came back and we were charged, the seven of us. Charges were laid against us for murder.

CHAIRPERSON: Mr Mohlaba, is this at all relevant to the application?

MR MOHLABA: Thank you, Chair, I wanted to interject as well.

&#9;You have mentioned that when you were arrested the people who you also handed firearms to were also in that vehicle, is that correct?

MR MHLONGO: Yes, the people we handed firearms to on that Friday were already in the kombi, but I went into a van, not a kombi, but they were already there as well.

MR MOHLABA: And amongst these people was Shavias Biaha there?

MR MHLONGO: Shavias Biaha. Yes, he was there together with Mshudulu, Ezekia Mhlango ...(intervention)

MR MOHLABA: Do you know where Shavias is today, do you know his whereabouts?

MR MHLONGO: No, I don't know. He stays in Tsakane, but I don't know exactly the house.

MR MOHLABA: And this is the person who was your commander at the time?

MR MHLONGO: Yes.

MR MOHLABA: So is it your case that in robbing and committing this offences of robbery of firearms, you were in furtherance of the interest of your political organisation, that is the ANC and the SDUs?

MR MHLONGO: Yes.

MR MOHLABA: That will conclude the evidence-in-chief, Mr Chairman.

NO FURTHER QUESTIONS BY MR MOHLABA

CHAIRPERSON: Mr Mhlongo, how long were you a member of the Self Defence Unit before this incident?

MR MHLONGO: I had about three years.

CHAIRPERSON: Three years?

MR MHLONGO: Yes, if I'm not mistaken.

CHAIRPERSON: But the Self Defence Units were only established in 1993.

MR MHLONGO: When we got to that place it was around 1992, or it was in 1992 rather. 

CHAIRPERSON: What place?

MR MHLONGO: Tsakane where we had our shacks.

CHAIRPERSON: But I'm telling that the ANC testified about this and they said they established the Self Defence Units early 1993. What do you say about that? In other words, as far as we're concerned the Self Defence Units never existed three years prior, in 1990.

MR MHLONGO: No, we've been comrades since 1989 in the area of Tsakane.

CHAIRPERSON: Tell me, what did you do in the Self Defence Unit?

MR MHLONGO: We were protecting the community. At night we would patrol.

CHAIRPERSON: Did you patrol yourself?

MR MHLONGO: From Friday, Saturday, Sunday we would do the patrol.

CHAIRPERSON: And what was this unit called?

MR MHLONGO: We called it Self Unit Defence Force. We were the people who were protecting or defending the community in the area.

CHAIRPERSON: Were you working at that time, in general?

MR MHLONGO: Yes, I was working.

CHAIRPERSON: Doing what?

MR MHLONGO: I was working in Germiston at a manufacturing company, manufacturing fish and chips stoves in that particular company in Germiston.

CHAIRPERSON: Now did you own a firearm?

MR MHLONGO: No, I didn't own one.

CHAIRPERSON: When you were on patrol, how would you patrol, would you arm yourself?

MR MHLONGO: We would carry knopkierries, not necessarily firearms, and sjambocks.

CHAIRPERSON: Was this the first operation that you went on to obtain firearms on the 10th of September 1993?

MR MHLONGO: No, that was not the first one.

CHAIRPERSON: Did you have a firearm when you went on this venture?

MR MHLONGO: No, I did not have a firearm with me.

CHAIRPERSON: Was anybody in your group armed?

MR MHLONGO: Not armed with firearms, but other weapons, not necessarily firearms.

CHAIRPERSON: Were you armed?

MR MHLONGO: I had a knife with me, a small one.

CHAIRPERSON: Now your instructions were to take firearms.

MR MHLONGO: Please repeat your question.

CHAIRPERSON: Your instructions and the intention of the operation was to obtain firearms only.

MR MHLONGO: Yes, that was our main intention.

CHAIRPERSON: No, was it your only intention?

MR MHLONGO: Yes, the only one.

CHAIRPERSON: Yet the binoculars were taken by one of your colleagues.

MR MHLONGO: Yes, it was also obtained from that house.

CHAIRPERSON: Was a television not taken?

MR MHLONGO: Keifas Kweniga attempted to take the television set, but left it outside.

CHAIRPERSON: So he did take it out of the house?

MR MHLONGO: Yes, he took it outside and we said he should leave it.

CHAIRPERSON: Why? Why were those items taken?

MR MHLONGO: He took from the dining-room and when we were leaving the room from which we took the firearms we realised that he had taken the TV set and we told him to leave it.

CHAIRPERSON: But why was it taken, and the binoculars?

MR MHLONGO: I would not know what was going on in his mind. That is why I told him to leave it because that's not the reason why we had gone there.

CHAIRPERSON: And the taking of the binoculars?

MR MHLONGO: I only noticed the binoculars once we were in the vehicle. You see those binoculars were a very small thing, they were not immediately observable when we were leaving the house.

CHAIRPERSON: Did you give evidence in the trial?

MR MHLONGO: Yes, I did.

CHAIRPERSON: Can you remember sometime during the investigation of that trial, you were asked where you got that one firearm? Do you recall that?

MR MHLONGO: No, I don't.

CHAIRPERSON: It is alleged, according to the evidence, that you said the firearm was obtained when you went to Balfour to get money, you got not get money but you got the firearm.

MR MHLONGO: I do not recall saying that in court.

CHAIRPERSON: No, no, it wasn't said that in Court. Apparently when you were asked about it during the investigation of that trial, that is what you said.

MR MHLONGO: Yes, I was asked.

CHAIRPERSON: And what did you say when you were asked?

MR MHLONGO: I told them that we found firearms.

CHAIRPERSON: Where?

MR MHLONGO: At the place, at the house near Delmas.

CHAIRPERSON: When you went to look for money and instead found firearms, is that what you told that person?

MR MHLONGO: No.

CHAIRPERSON: Now you say you were busy with that one white man in the bedroom and when you got back to the kitchen to your surprise you found the other white man lying on the floor bleeding.

MR MHLONGO: That is correct.

CHAIRPERSON: You even made an attempt to assist him.

MR MHLONGO: That is correct.

CHAIRPERSON: Did you feel sorry for this white man?

MR MHLONGO: Yes, I did because he was bleeding.

CHAIRPERSON: Did you then not agree with this killing or what?

MR MHLONGO: Yes, I did not agree with it.

CHAIRPERSON: You did not associate yourself with that?

MR MHLONGO: How?

CHAIRPERSON: You say you didn't agree with it, even afterwards you distanced yourself.

MR MHLONGO: Yes, I did not agree with the killing.

CHAIRPERSON: Did you have any intention to kill or stab that white man, not necessarily yourself, but did you have any intention that he should be stabbed in the first place?

MR MHLONGO: No, I did not have an intention that he be stabbed, but I was surprised when I came out of the room and noticed that he had been stabbed.

CHAIRPERSON: When you people went there to that house, did you know that some of your colleagues were armed with knives?

MR MHLONGO: I knew that they were in possession of knives.

CHAIRPERSON: What did you think was going to happen if there was resistance to the robbery?

MR MHLONGO: As for myself I was also in possession of a knife.

CHAIRPERSON: What did you think was going to happen if those people resisted the robbery?

MR MHLONGO: I was of the opinion that we should grab them and tie them up.

CHAIRPERSON: Yes, Ms Thabete?

CROSS-EXAMINATION BY MS THABETE: Just a few questions, Mr Chair. 

&#9;Did you know the victims before you went there?

MR MHLONGO: No, I was seeing them for the first time, I didn't know them.

MS THABETE: How did you target them?

INTERPRETER: May your question please be repeated.

MS THABETE: How did it come about that you decided to go to that house specifically?

MR MHLONGO: The reason why we went there is because Joseph Fani Nkosi is the one who knew where we could ...(end of tape)

MS THABETE: ... tell you how he knew that you'd find firearms in that house?

MR MHLONGO: Yes, he did explain.

MS THABETE: What did he say, how did he know?

MR MHLONGO: He had a family on that farm and his younger brother was apparently working on that farm and he apparently used to go to that white, or to that farm because his younger brother was working there.

MS THABETE: In your words, why was the deceased stabbed?

MR MHLONGO: I would not know why, but according to his explanation he was making a noise, that is the deceased.

MS THABETE: ...(indistinct) the killing of Mr Joubert ...(indistinct) Jansen, how would you justify it politically?

MR MHLONGO: I would say this can be explained by way of saying that the deceased died in the same house where they were robbed.

MS THABETE: So you didn't associate yourself - no, that's not what you said, you didn't approve of a killing, would you say you're responsible though for it? Do you hold yourself responsible for the said killing?

MR MHLONGO: I would not say this role that I played in the murder, because it was not our intention to kill anyone when we got there.

MS THABETE: My question is, I understand you went there to get firearms and you had no intentions to kill anyone nor to stab anyone, but nevertheless finally one of you did stab somebody, and I understand that you did not participate in any way in that stabbing, but would you say you're responsible for it? Do you take responsibility for it because you've applied for amnesty for that murder?

MR MHLONGO: Yes, I am involved in the death of the person because I was in the house.

CHAIRPERSON: ...(inaudible) politically? ...(inaudible) when he was stabbed? You never assisted in the stabbing, it wasn't supposed to happen as far as you're concerned, so why do you take responsibility for it?

MR MHLONGO: I am party to this because we were all together in that one same house.

CHAIRPERSON: Yes?

MS THABETE: No further questions, Mr Chair.

NO FURTHER QUESTIONS BY MS THABETE

CHAIRPERSON: Mr Mohlaba, have you got any questions?

RE-EXAMINATION BY MS MOHLABA: Just one question. Mr Mhlongo, after you realised that the deceased died, did it occur in your mind that, but for your going to that place to rob a firearm the deceased would not have died?

MR MHLONGO: Yes, had I not partaken in the robbery itself, this one person would not have died.

MS MOHLABA: So do you in other words say that it is ...(intervention)

CHAIRPERSON: Wait, let him himself say the other words.

MR MOHLABA: Thank you, Chair, I've got no further questions.

NO FURTHER QUESTIONS BY MR MOHLABA

CHAIRPERSON: Have you got any questions?

ADV SIGODI: You say you gave the firearms that you took to Sibiya and the other people who had ordered you to get them, is that correct?

MR MHLONGO: That is correct.

ADV SIGODI: Do you know what happened to those firearms before you were arrested?

MR MHLONGO: No, I have no knowledge.

ADV SIGODI: You see, Mr Mhlongo, one of the requirements that you must fulfil in order to get amnesty is that you must make a full disclosure and you must be prepared to tell the truth to this Committee. Now what I want to find out from you is that here in the trial it is said that one of the firearms, the one that was given to accused number 3, according to this judgment, who is Kleinbooi Tshabalala, was sold to one, Victor. Do you have any knowledge about that?

MR MHLONGO: Yes, there is something I know to that effect.

ADV SIGODI: Yes, can you tell us about that firearm which was sold to Victor?

MR MHLONGO: I knew about this firearm on the same day that we were arrested, after the firearm was ... After we had given the firearm to these people they had taken one of these firearms and sold it to Victor because in court only two firearms were used as exhibits and one was missing.

ADV SIGODI: Why was it sold to Victor if it was meant for the Self Defence Unit?

MR MHLONGO: On asking as to why they said they wanted money so that they could augment firearms - excuse me, so that they could augment ammunition. They sold the firearm to get money which they would use to purchase ammunition.

ADV SIGODI: You see the record here states that this firearm was sold for R700, do you know anything about that?

MR MHLONGO: No, I don't know anything about money.

CHAIRPERSON: And proceeds divided between four people I think.

ADV SIGODI: In fact it says here that Victor could not pay the amount. He went to the bank to get some money and that the money was divided between yourself and Kweniga and ...(intervention)

CHAIRPERSON: The first lot of money?

ADV SIGODI: Ja.

CHAIRPERSON: And the other money that he went to fetch from the bank was divided between the other two. Do you know anything about that?

MR MHLONGO: No, that is not correct because I was not there.

CHAIRPERSON: You never received any money as proceeds from the sale of one of those firearms?

MR MHLONGO: No.

CHAIRPERSON: What happened to the binoculars?

MR MHLONGO: I would not know what they did with the binoculars because I left.

CHAIRPERSON: Why didn't you hand that in to the ANC as well? They could have sold the binoculars to augment their ammunition as well, not so?

MR MHLONGO: We did not sell the binoculars.

CHAIRPERSON: What happened to it?

MR MHLONGO: I would not know what happened to the binoculars because I left.

ADV SIGODI: Just one more question. I'd also like to know, did you fill in this form yourself, the form on pages 99 to 101, is that your own handwriting?

MR MHLONGO: ...(no English interpretation)

ADV SIGODI: What is your standard of education?

MR MHLONGO: I went as far as Form 1.

ADV SIGODI: You mean you could not fill in the form yourself?

MR MHLONGO: Yes, I would not be in the position.

ADV SIGODI: Why not?

MR MHLONGO: I didn't how they were. I didn't know exactly what was required, that is why I requested somebody else's assistance.

ADV SIGODI: Was this person also an inmate?

MR MHLONGO: Yes, yes.

CHAIRPERSON: Is it true that some of these inmates are so smart that they're running a service, or used to run a service to complete these forms in prison?

MR MHLONGO: What were they gaining from the service?

CHAIRPERSON: I'm not too sure what their benefits were. All I'm asking is, was there a group of people in your prison who were clever enough to assist in filling in these forms?

MR MHLONGO: We were helping one another. There were many people who were helping others.

ADV SIGODI: I just want to know why did you refer to this unit as the Self Defence Force?

MR MHLONGO: It's because we were patrolling in the evenings, helping the community.

ADV SIGODI: No, because the ANC would refer to these units as Self Defence Units, not Self Defence Force. As far as I know there was no Self Defence Force, there was a Self Defence Unit by the ANC.

MR MHLONGO: Yes, I agree.

ADV SIGODI: Thank you.

CHAIRPERSON: You know some time ago I dealt with an application - I thought it was a spelling error, it may not have been now, where it was referred to as Self Help Unit or a Self Help Force, is this the same one?

MR MHLONGO: No, it's not the same.

CHAIRPERSON: Yes, thank you, you are excused.

WITNESS EXCUSED

CHAIRPERSON: Mr Mohlaba, have you got any more witnesses?

MR MOHLABA: No. Thank you Chair, that concludes the evidence for the applicant.

CHAIRPERSON: Ms Thabete, have you got any witnesses?

MS THABETE: No, Mr Chair.

CHAIRPERSON: Mr Mohlaba, have you got any submissions?

MR MHOLABA IN ARGUMENT: Thank you, Chair, I'll be very brief.

&#9;Mr Chairman, the application of, the form submitted by the applicant I submit complies with the requirement of the Act. I would further submit that the evidence given by the applicant here clearly suggested that there was nothing concealed and therefore the full disclosure test has been passed.

&#9;With regard to the element of political objective ...(intervention)

CHAIRPERSON: Well before we go onto that, if it was clearly their intentions and their instructions to go rob in order to obtain firearms, which in terms of his evidence clearly is a politically motivated act, how does the taking of the television and the binoculars impact on that?

MR MHOLABA: The taking of the television, Mr Chair, I would submit that it is done by somebody else and not the applicant and in his evidence the applicant has mentioned that he reprimanded this very person for taking the television and subsequently the television had to be left behind. 

&#9;With regard to the aspect of the binoculars it is, the applicant has testified that because the item is very small in its nature he could not observe at the moment that something else other than the firearms has been removed from the house.

CHAIRPERSON: Well either he's going to be loyal to this group of people or he is going to stand alone, he can't have it both ways. He said that he takes responsibility for everything that occurred there because he was in the house, it's a sort of deflected responsibility if you want. If that be the case, then his personal approach to the taking of the television and the binoculars must be seen in the context of the group activity, and in that sense I ask the question, how does that impact on the aspect of the reasons for which they went there?

MR MHOLABA: Clearly that amounts to a departure from the ultimate objective of going to that area. But I would want to submit, Mr Chairman, that I view that as an issue which is, it's a new intervening event which was not part of the entire transaction and therefore I submit that that should be viewed in isolation from the entire transaction, and in fact that becomes a pure criminal act. But I submit that it should not be tied into this entire transaction which was planned, that is to go and rob the firearms.

CHAIRPERSON: Carry on.

MR MHOLABA: Thank you, Chair.

&#9;With regard to the aspect of political motive, it is true that it was not the policy of the ANC to commit robberies. While such conduct is not expressly mentioned and faces a particular sanction from the members of the organisation who do certain things, however the institutions like the Self Defence Units were left to defend the community, defend themselves without any form of, without any arms allocated to them ...(intervention)

CHAIRPERSON: Well Mr Mohlaba, that in itself is a phenomena that we accept occurred, but it does lay open to common criminals to take advantage of the situation, not so? So as much as we are able to hear argument from any particular applicant, that he was working in the interests of this broad organisation, it could just as well be a case of a common criminal taking advantage of a situation and falling to his convenience under the umbrella of this political organisation, is that not so?

MR MHOLABA: Certainly people would always want to take advantage of the situation and want to persuade this Committee to accept that pure criminal acts were committed with a political objective. But with the evidence which has been tendered here and the subsequent court records which are before the Committee, it has always been the, it was very clear that always this thing was done politically. 

&#9;It's a fact that other than the firearms or for the removal of the television set by this person who was subsequently reprimanded, there was nothing other than the firearms which were removed there, except the binoculars as well. Which issue of the binoculars, Mr Chairperson, I submit was only mentioned to this Committee by the applicant and which he should be complemented for because it's nowhere in the document that binoculars were stolen. And that will add up to his disclosure aspect.

&#9;Even in the trial court it was mentioned that these people, the court even referred to them as a group of comrades and there was mention of the ANC Youth League in the court record itself, so that has not always, it's an issue which was not obscure throughout, that this operation was ...(intervention)

CHAIRPERSON: Well that which you chose to take advantage of is a double-edged blade that, because in certain quarters in this country those days, the word "comrades" was used as a synonym to gangsterism, not that I agreed with that, but that's a fact, especially in the judiciary. So it doesn't follow that even this court or the court that tried the applicant, was of the view that it was of a political nature because he used the word "comrades".

MR MHOLABA: Certainly Chair, I agree with the Chair. It's not only that word which I, it's just the word which occurred in my mind first, but there also mention of one of the co-perpetrators who was an active or an office-holder of the ANC Youth League, who was part of the applicant here. And if the Chair bear with me, I can refer to a specific paragraph in the judgment.

MS THABETE: Page 4.

MR MHOLABA: Oh thank you, page 4 of the judgment, that is witness Mshudulu.

CHAIRPERSON: What line is that?

MR MHOLABA: It's line 5.

CHAIRPERSON: Did that court find that the three accused were party to this move to control crime?

MR MHOLABA: No, the court did not specifically find that. That will conclude my submissions.

CHAIRPERSON: Well there's one issue I want you to deal with. Our interpretation of the Act on this particular issue, is as follows; that the act for which amnesty is applied for must have been committed with a political objective. I'm prepared to be very generous in this case, in the interpretation, to say that look if a particular act was committed and per se was not political, but was committed to facilitate the other act which was politically motivated, I lean towards making the interpretation that the second, or the former act was indeed of a political nature. In this matter let's assume they went there to fetch or steal guns, ammunition, which we also assume was politically motivated, how was the killing, how did the killing facilitate the robbery? Was it absolutely necessary to kill the gentleman and how did his killing enhance the political objectives of any political party because those are the requirements of the Act?

MR MOHLABA: Thank you Chair. With regard to that aspect I will concede that the killing of the deceased did not facilitate or enhance a political objective of any political movement because it's not the evidence of the applicant here that the deceased was viewed or seen by the political organisation as a stumbling block and has to be removed ...(intervention)

CHAIRPERSON: Especially in the context of their operation, they went to fetch firearms.

MR MOHLABA: Certainly Mr Chairperson, but the death of the deceased could not be viewed separately from the objective of obtaining firearms.

CHAIRPERSON: Well if you concede that his killing did not facilitate the taking of the firearms, how does that become political?

MR MOHLABA: The applicant is not very much aware of these circumstances regarding surrounding the death of the deceased and it was only mentioned, he mentioned that he was told by his colleagues ...(intervention)

CHAIRPERSON: Or comrades if you want.

MR MOHLABA: Comrades, that the deceased was stabbed because he was making ...(intervention)

CHAIRPERSON: A noise.

MR MOHLABA: Was making a noise.

CHAIRPERSON: Isn't that even worse?

MR MOHLABA: It is in fact worse but the context within which this expression was said Mr Chairperson, I submit it's not very clear to us and that could also be interpreted in saying that in him making noise it's going to let some passersby or some neighbours to come to his rescue which would subsequently frustrate the operation.

CHAIRPERSON: Well, that doesn't help us, does it, because the Act says that we must be satisfied that that act of killing the gentleman was done with a political motive and that full disclosure has been made in respect of which expressly my view excludes speculation and guessing, is that not so?

MR MOHLABA: Certainly that is the case but the state of the mind of the person who has thrown a ...(indistinct) the deceased I'll submit Mr Chairperson that it's not, it cannot be tied up with the participation of the applicant in the entire transaction and I submit that the foreseeability that in going to rob firearms they may meet resistance and in the process somebody may die, that brings an eventual intention on the part of the applicant because he participated himself.

CHAIRPERSON: Is that the reason the gentleman died?

MR MOHLABA: The reason the gentleman died I was still saying Mr Chairperson that the applicant is unable to explain with certainty but he found himself within a group which went to do, to perform an unlawful act and he could have foreseen that a scuffle may ensure, that in the process somebody may die and he associated himself with that so I would say that ...(intervention)

CHAIRPERSON: Well he specifically disassociates himself with that, he was asked. He said he never intended the killing, he distances himself from the killing and he never associated himself. He takes responsibility because he was there in the house, that's what he says.

MR MOHLABA: And further that but for his participation and his conduct as he conducted himself the deceased would not have died.

CHAIRPERSON: Ja, well I appreciate your difficulties Mr Mohlaba but I need to at least give an opportunity to deal with the difficulties that we have and in order to make a decision we need to give everybody an opportunity to argue the issues that concern us. The other thing that comes to mind is that in the context at that time, was the fatal stabbing of that gentleman proportional to the intended commission of an offence?

MR MOHLABA: I will be a speculation Chairperson to say yes.

CHAIRPERSON: Well, objectively?

MR MOHLABA: Objectively I would say no but that - no, it could be yes on the other side that's why I say it's purely speculation because we do not know the state of the mind of the person who struck the blow and the ...(intervention)

CHAIRPERSON: The state of the mind of the person who struck the blow is a subjective test. The question of proportionality must obviously be measured in terms of objective values, not so?

MR MOHLABA: Certainly it is and ...(intervention)

CHAIRPERSON: It is a difficulty your client faces, not you.

MR MOHLABA: I agree with that Chairperson.

CHAIRPERSON: Is there any other submission you would like to make?

MR MOHLABA: Unless the Committee wants to hear me on any other aspect I do not have anything else.

CHAIRPERSON: No, that will be all thank you. Ms Thabete have you got any submissions?

MS THABETE: No Mr Chair.

CHAIRPERSON: What do you say about us making a decision, would you support the granting of amnesty or not?

MS THABETE: I would support it Mr Chair.

CHAIRPERSON: For everything?

MS THABETE: Yes Mr Chair. Just to contribute maybe on the issue of proportionality, I would say that objectively you would say if the person was killed because he was making noise and if the making noise would have somehow disturbed the operation of what they were there to do, then one would argue that it was proportional to the operation of getting arms but it's just an argument Mr Chair.

CHAIRPERSON: Yes thank you, we are going to have to take a bit of time to consider this and our decision will be publicised in due course. Thank you.

MS THABETE: Thank you.

CHAIRPERSON: Mr Mohlaba, are your other clients here?

MR MOHLABA: Yes they are here, there is just an affidavit, I wanted to start with the matter of Mkukwana but if we could get a short adjournment because there is a supplementary affidavit which has been prepared. I don't know if the Committee had an opportunity of going through it?

CHAIRPERSON: No, not yet. I just received it now. Why was this affidavit not signed earlier than today or yesterday?

MR MOHLABA: I have just noticed yesterday that it appeared to be that affidavits get filed in matters where there is some lacunal application forms, that's why I also adopted that attitude but I could normally have that cured by evidence.

CHAIRPERSON: Okay. You want to have a short adjournment or what?

MR MOHLABA: Certainly, yes.

CHAIRPERSON: We'll adjourn for ten minutes.

WITNESS EXCUSED

COMMITTEE ADJOURNS

&#9;&#9;&#9;&#9;&#9;&#9;&#9;&#9;&#9;&#9;

MAJIEM MKUKWANA: AM 3129/96

______________________________________________________

MR MOHLABA: Thank you Chairperson, may we now commence with the application of Majiem Mkukwana and he prefers to testify in Xhosa.

CHAIRPERSON: Mr Mkukwana, you want to testify in Xhosa?

MR MKUKWANA: That is correct, sir.

MAJIEM MKUKWANA: (sworn states)

EXAMINATION BY MR MOHLABA: Thank you Chairperson. 

&#9;Mr Mkukwana, you were born on the 14th February 1952 is that correct?

MR MKUKWANA: That is correct.

MR MOHLABA: Where were you born?

MR MKUKWANA: In Mont Frere in the Transkei.

MR MOHLABA: Are you married? Do you have a family of your own?

MR MKUKWANA: Yes I have a wife and children.

MR MOHLABA: You are presently serving an imprisonment term, is that correct?

MR MKUKWANA: That is correct.

MR MOHLABA: There is an affidavit, copies of which have been submitted to the Committee. Do you confirm this as the affidavit which you have signed, the one I'm showing to you?

MR MKUKWANA: That is correct.

MR MOHLABA: Do you confirm the contents to be true?

MR MKUKWANA: Is that what was written by me that you are referring to?

MR MOHLABA: The affidavit which was prepared on your behalf and signed by you this morning?

MR MKUKWANA: Yes, I'm familiar with the contents.

MR MOHLABA: May I please refer the Committee to page 2 of the affidavit where there is a typing error which I would want to draw to the Committee's attention? The paragraph dealing with the period of imprisonment. It says:

&#9;"I was sentenced to a total imprisonment term of 31 years"

That's a typing error. May I indicate that it was supposed to read 25 and a half years and I beg leave for the necessary amendment to be effected.

&#9;You are applying for amnesty in respect of the offences mentioned in your affidavit, that is in respect of murder, two counts of attempted murder, unlawful possession of ammunition and unlawful possession of a firearm, is that correct?

MR MKUKWANA: That is correct, sir.

MR MOHLABA: And the basis on which you are applying for this amnesty is that these offences were committed with a political objective, is that correct?

MR MKUKWANA: That is correct, sir.

MR MOHLABA: May the affidavit be regarded as evidence.

INTERPRETER: The speaker's mike is not on.

CHAIRPERSON: If you want it to be evidence it will be so.

MR MOHLABA: I think you will request that it be handed in as an exhibit.

CHAIRPERSON: Yes. 

MR MOHLABA: The purpose Mr Chair of handing this affidavit was to remedy the application form in particular paragraph 9a(iii) thereof which did not set out the nature and particulars of the offences, of the offence committed and if the Committee is satisfied with the contents of this affidavit that will conclude the testimony of the applicant.

NO FURTHER QUESTIONS BY MR MOHLABA

MR MOHLABA: So be it. Ms Thabete?

CROSS-EXAMINATION BY MS THABETE: Yes Mr Chair, I do have questions.

&#9;Mr Mkukwana, can you just clarify that whether the incident of the killing of an unknown person happened at the same area with the assaults of the others, so with the attempted murders of the others?

MR MKUKWANA: Yes they all happened simultaneously in 1991.

MS THABETE: Was it at the same time?

MR MKUKWANA: That is correct.

MS THABETE: And when was this? 25 June 1991?

MR MKUKWANA: I cannot clearly recall the date but it was in 1991.

MS THABETE: I'm asking you this question because in the indictment it looks like it was separate incidents. The first incident appeared to have happened on the 23rd June 1991 and the second incident appears to have happened on the 25th June 1991 in Mr Moses Tuwani's house?

MR MKUKWANA: Yes, they didn't all happen on the same day. I do not understand your question.

MS THABETE: No, what I'm trying to find out from you Mr Mkukwana is you are applying for murder, right, of the person who was found at Tafani Hostel, is that correct?

MR MKUKWANA: That is correct.

MS THABETE: And then you applied for an incident that happened when you were patrolling where a group of people and then you fired shots?

MR MKUKWANA: That is correct.

MS THABETE: So you're saying it's separate matters and separate incidents?

MR MKUKWANA: Yes it's separate incidents.

MS THABETE: I don't know whether it's my mistake but it appears as if in the affidavit it happened at the same time?

MR MOHLABA: Clearly those have all along been my instructions. Maybe I should ask for a short adjournment to clarify certain things?

MS THABETE: Please.

CHAIRPERSON: Mr Mkukwana, in respect of the murder, when did that happen?

MR MKUKWANA: It happened at night.

CHAIRPERSON: What date?

MR MKUKWANA: I cannot recall the date but it was in 1991 but if you can refer to the records you'll find the date but it was in 1991.

CHAIRPERSON: And the attempted murders, when did that happen?

MR MKUKWANA: The attempted murders happened first.

CHAIRPERSON: Tell us about them, now where and when and how?

MR MKUKWANA: I do not know whether should I give background information as to what led to the incidents but I can just briefly say that there was a conflict in 1990. We were a united group of Inkatha and ANC members and when all this started there were fights in the hostels and people ran away to the Vusunzi Hostel and we remained in the Tafani Hostel. That was in 1990. 

&#9;They used to come back and attack us in the evenings and we were - some of us died and some of us survived and we decided that some should lie in wait outside and some should stay on guard and when we saw people coming stealthily we would shoot them. As soon as we recognised that they did not belong to our hostel and we would attack them.

CHAIRPERSON: Now these two attempted murders, tell us about that specifically?

MR MKUKWANA: I had hit someone with a bullet in his head and I did not see him but I only learned that in court and the second one said I also shot him on the shoulder but it was at night, I did not see that.

CHAIRPERSON: Why did you shoot at him?

MR MKUKWANA: We shot them because we were fighting with them in this conflict between Inkatha and ANC. It happened that whenever we were sleeping at night they would creep in and shoot us.

CHAIRPERSON: Yes?

MS THABETE: Did both these attempted murders take place on the same day or did they take place on different days?

MR MKUKWANA: It's on different days but I'm not sure whether it was in the morning but it was different days, it was not on the same day.

MS THABETE: Did you go out practically every night, I mean from the indictment ...(intervention)

MR MKUKWANA: Yes, we would go out every night, we were not sleeping in our houses any more.

MS THABETE: Were you still staying at the hostel at that time?

MR MKUKWANA: Yes I was still staying there at the hostel.

MS THABETE: Alright, because from the indictment it appears that the second charge, the second attempted murder happened on or about the 23rd June 1991 and then the second attempted murder happened on or about the 25th June 1991. So are you telling us that you used to go out every night, was there shooting between yourselves and the opposition practically every night?

MR MKUKWANA: Yes it happened mostly at night. The situation will be better during the day and worsen in the evening.

MS THABETE: But were you shooting practically every day?

MR MKUKWANA: Whenever we saw them we would shoot them when they arrived but they wouldn't come daily but we stayed alert on guard all the time. When they attempted to creep in we would lie in wait for them in the corners and shoot them. Those who were not on duty whilst we were away, they would stay on guard.

CHAIRPERSON: Good, now you've told us that both these attempted murders took place within the context of the conflict and at Thembisa, correct?

MR MKUKWANA: That is correct, sir.

CHAIRPERSON: Tell us about the murder.

MR MKUKWANA: This instance also happened whilst we were lying in the dark at night. Three people appeared and we were still discussing this issue of these people approaching. When they saw us they tried to turn back and run away but I managed to shoot this one.

CHAIRPERSON: And of course you were in possession of an unlicensed firearm together with unlicensed ammunition when you committed these crimes?

MR MKUKWANA: That is correct.

MS THABETE: Why did you shoot him?

MR MKUKWANA: I shot him because he was one of those who would creep in stealthily because at night we would never allow anyone who we did not know to enter the premises because these were the people who were finishing us, even if one went to the toilet.

DR TSOTSI: Mr Mkukwana, I'm not quite clear about this battle that was going on. Was this a battle between Inkatha and the ANC members?

MR MKUKWANA: Yes, it was a battle between the two.

DR TSOTSI: And was this a battle between the hostel dwellers of these two organisations? Do I understand from you that Inkatha members left the hostel and came and attacked you and you vice versa? Is that the position? 

MR MKUKWANA: That is correct.

DR TSOTSI: And that this took place from about 1990?

MR MKUKWANA: It started in 1990.

DR TSOTSI:&#9;In 1990. Now who authorised this battle? Did you just go out on your own as a hostel or members of ANC or was there any authority which authorised you to engage in this battle?

MR MKUKWANA: Nobody authorised this. When we realised that there was a war situation we decided to take control. Nobody asked you about your political affiliation. If they said to you that - once they established that you are a Xhosa they would kill you.

DR TSOTSI: Now this was before they established the SDUs, is that right? At that time in 1990 the SDUs were not yet formed or established?

MR MKUKWANA: That is correct, Sir.

DR TSOTSI: Now in other words when you attacked one another, let's talk about you people, the people that you shot or killed, all that you were concerned with was whether or not this man was an Inkatha man or he came from the other side. If he came from the other side, if he was an Inkatha man, then you shot him, is that the position?

MR MKUKWANA: That is correct, sir. We also did not enter that other hostel.

DR TSOTSI: I see.

CHAIRPERSON: Do I understand you correctly, those areas became no go areas for the opposition, both sides?

MR MKUKWANA: That is correct, Sir.

CHAIRPERSON: And it was a political battle pitched in the ...(intervention)

MR MKUKWANA: That is correct, Sir. It was because of the difference of the political parties, ANC and Inkatha.

CHAIRPERSON: Yes thank you.

MS THABETE: Thank you Mr Chair. 

&#9;In page 4 of the indictment which is the summary of substantial facts, it says that the first incident which is the shooting of Johannes Muhali, it suggests that he was on his way home and you ran after him and you shot him. Would you say this is correct?

MR MKUKWANA: We shot him at the hostel. As to whether he was on his home or not, that I'm not sure of.

MS THABETE: And then the second incident ...(intervention)

CHAIRPERSON: You know Mrs Thabete, those days these indictments had a way of being cast in a slanting way.

MS THABETE: Okay.

CHAIRPERSON: And I wonder if we should rely on it as reflecting the actual truth.

MS THABETE: I just wanted to clarify with him whether it's true or not true. Thank you Mr Chair.

&#9;The second one, it says the shooting of Moses ...(indistinct), you went there into his house and you shot him there. Would you say that is correct?

MR MKUKWANA: He was no longer staying there, he had already run away. They all ran away and when we saw the lights on in his house we decided to shoot him. I hit him on the forehead but apparently he survived. It was in the dark. It was his house but it was already vacated as he was an Inkatha members. When we saw the light on in the house, when we suspected that he might have crept in I noticed and that is how he was shot.

MS THABETE: So are you saying ...(intervention)

CHAIRPERSON: Would that be in a place where it was declared a no go area for him, that house?

MR MKUKWANA: Yes he was unwanted in that area.

MS THABETE: Sorry, this house that you're referring to, was it in the hostel or was it an ordinary house in the country?

MR MKUKWANA: It's in the hostel premises at Tafani.

MS THABETE: So it was in his room actually, not his house you would say?

MR MKUKWANA: Yes it's a room rather than a house.

MS THABETE: So is it your evidence that these people were attacked or maybe I should put it this way, why were these people specifically attacked? I understand that there was a conflict going on but why these specific people were attacked?

MR MKUKWANA: They were attacked because they came at night at our premises and there was the war situation prevailing. At that time it was not allowed that somebody did not belong to us should come to our premises because it was quite detrimental and dangerous for us because they would come and plead that they belong to our group and then they would shoot us and run away. They would make believe that they have joined the ANC and left the Inkatha and before we knew they would have shot somebody and ran back to where they belong again. That was the situation.

MS THABETE: When people came to your hostel did you like try to find out whether they belonged to your organisation or you just - if they didn't belonged to your organisation, you just shot them? Did you speak to them or you just shot them, that's what I'm trying to find out?

MR MKUKWANA: Are you referring when they come at night or during the day?

MS THABETE: At night, for example in this incident?

MR MKUKWANA: People would not come at night. Whoever came at night, they would come at their own risk. People wouldn't come and say they want to join our side at night.

MS THABETE: Thank you Mr Chair, no further questions.

&#9;Sorry, did you establish later, after you had shot these people that they were in fact IFP people? Were they in fact IFP people, the deceased as well as the two people you attempted to kill?

MR MKUKWANA: They said they were not politically aligned in court but I was aware of the fact that the way they left the premises, it showed that they belonged to that other party because they wouldn't have left to go and stay where the other party members were staying.

NO FURTHER QUESTIONS BY MS THABETE

CHAIRPERSON: Mr Mohlaba, have you got any questions?

MR MOHLABA: Thank you, I've got no further questions.

CHAIRPERSON: When were you convicted?

MR MKUKWANA: In 1993.

CHAIRPERSON: When?

MR MKUKWANA: I think it was on the 5th May 1993.

CHAIRPERSON: When were you arrested?

MR MKUKWANA: I was arrested in 1991.

CHAIRPERSON: What month?

MR MKUKWANA: I think it's June.

CHAIRPERSON: Now after your arrest until the time you were convinced were you afforded any bail?

MR MKUKWANA: Yes I was granted bail of R2000.

CHAIRPERSON: Were you released as a result thereof?

MR MKUKWANA: Yes I was released and then I managed to continue working.

CHAIRPERSON: And then on your sentence you were incarcerated?

MR MKUKWANA: That is correct, Sir.

CHAIRPERSON: Did the activities of - if I can term it that these defence institutions at the hostel where you stayed, that those activities continued while you were on bail?

MR MKUKWANA: Are you referring to whilst I was - before I got bail or after I had been sentenced?

CHAIRPERSON: While you were on bail, in between your arrest and your conviction?

MR MKUKWANA: Yes they continued.

CHAIRPERSON: And these people who attacked the hostel in which you were living, did they continue attacking your hostel during that period?

MR MKUKWANA: Yes they continued with the attacks.

CHAIRPERSON: And all these offences for which you apply for amnesty occurred within the area of where you stayed or ...(intervention)

MR MKUKWANA: They happened where I was staying.

CHAIRPERSON: Yes thank you, you are excused.

WITNESS EXCUSED

CHAIRPERSON: Any other witnesses or bits of evidence Mr Mohlaba?

MR MOHLABA: None Mr Chairman, it concludes the evidence with the applicant.

CHAIRPERSON: Ms Thabete?

MS THABETE: No evidence Mr Chair.

CHAIRPERSON: Ms Thabete, have you got any submissions to make?

MS THABETE: No Mr Chair. Sorry Mr Chair, can I put it on record that we had set this matter earlier on in February but we wanted to afford an opportunity to the victims to come forward so we did make an advertisement on the paper and on the radio but no one came forward.

CHAIRPERSON: Okay. Mr Mohlaba we don't need to hear any submissions from you in this matter. 

MZOLISI B MHLAKAZA: AM 3139/96

-------------------------------------------------------------------------- CHAIRPERSON: Are we ready to proceed?

MR MOHLABA: Certainly. I'm ready to proceed on the matter of Mhlakaza.

CHAIRPERSON: Let us go ahead.

MR MOHLABA: Mr Mhlakaza will also want to testify in Xhosa.

MZOLISI B. MHLAKAZA:&#9;(sworn states)

EXAMINATION BY MR MOHLABA: Mr Mhlakaza, you were born on the 15th September 1966 in Transkei, is that correct?

MR MHLAKAZA: That is correct, Sir.

MR MOHLABA: Are you married and do you have children of your own?

MR MHLAKAZA: That is correct.

MR MOHLABA: You are applying for an amnesty for an offence of murder, assault and malicious damage to property, is that correct?

MR MHLAKAZA: That is correct.

MR MOHLABA: And the basis on which you apply for this amnesty is that your offences were committed with a political objective, is that correct?

MR MHLAKAZA: That is correct.

MR MOHLABA: And these offences were committed on or about the 7th July 1991, is that correct?

MR MHLAKAZA: That is correct.

MR MOHLABA: Were you during that period a member of a political organisation or any recognised institution?

MR MHLAKAZA: I was an ANC follower.

MR MOHLABA: And where were you staying during this period.

MR MHLAKAZA: I was staying in Chicken Farm in Kliptown.

MR MOHLABA: Were you a member of the Self Defence Unit?

MR MHLAKAZA: That is correct, Sir.

CHAIRPERSON: Self Defence Units never existed that time, not of the kind that we know now.

MR MHLAKAZA: They were not formally established but because of the violence that was there at that time the community came together in a meeting and we decided to take means of defending the community ourselves.

CHAIRPERSON: Within your confines of where you were living?

MR MHLAKAZA: Yes Sir, where I was living.

MR MOHLABA: With respect to this offence of murder, did you know the victim before he was attacked and killed?

MR MHLAKAZA: I did not know the deceased before.

MR MOHLABA: Can you explain to the Committee how this offence was committed and everything that happened?

MR MHLAKAZA: In 1991 on July 7th we were patrolling on a Saturday. We were patrolling since the 6th on a Saturday until 2 o'clock. Whilst we were sitting in watch when normally the disruptions would start, we saw a police Casspir which was far in the distance and it stood next to some trees in some open veld in ...(indistinct) and some people alighted from that Casspir and when we watched we wanted to see which direction were they going to take these people and they were coming in our direction towards Chicken Farm. They split into groups and went different directions and they entered the squatter camps and that is when we whistled for alert so that people should be aware that trouble has started and as soon as they arrived there were gunshots and we counter-attacked as well. We shot back. One of them who was trying to run away, they entered the squatter camp area and we gave chase and we found one who was trying to hide in one shack. We took him out and stabbed him. Before stabbing him we asked him as to "on which side are you because we have just seen you coming running.?" He did not deny, he just simply told us the truth that he belongs to the IFP and that led him to be killed. Thereafter we saw some shadows in some shack and we just ignored those shadows but when we saw that these people running into another house, we broke the door and we found a couple and we asked this man "you can see that people are outside, there's a fight on, how come are you indoors because when trouble starts all men must go outside to fight?" and that is where an argument started and he climbed on the bed because he became scared and my accomplice asked him to get off the bed and he thought, my accomplice thought this person was trying to fight and he stabbed him in the face and we went out to continue with our patrols. We overthrew the other group and until in the morning.

MR MOHLABA: Did you know where the deceased was staying or did you gain that - or after the fact did you ultimately gain knowledge of where he stays?

MR MHLAKAZA: I did not know where the deceased stayed.

CHAIRPERSON: Malicious injury to property that you apply for, is that the breaking into that house where that gentleman was stabbed?

MR MHLAKAZA: That is correct, Sir. The breaking down of the door.

CHAIRPERSON: Is there an address or some identifiable feature to which we can refer to this house?

MR MOHLABA: In the Chicken Farm some of the shacks did not have numbers.

CHAIRPERSON: So this house was on the Chicken Farm as well?

MR MHLAKAZA: Yes it was also on Chicken Farm.

CHAIRPERSON: Okay.

MR MOHLABA: Do you know a person called Elliot Fudamele?

MR MHLAKAZA: Yes I know him.

MR MOHLABA: Can you explain who is Elliot Fudamele?

MR MHLAKAZA: Elliot Fudamele is one of our comrades who left because of the conflict that was there at the time and he went to stay in Orange Farm.

MR MOHLABA: &#9;I refer the Committee to an affidavit by Fudamele. I'm not certain as to the correct page number in the bundle.

CHAIRPERSON: I've read it. What's the purpose of this affidavit?

MR MOHLABA: The purpose of the affidavit, Chair, is just to confirm that the applicant was in fact at that area, he was known in that area during that period, for what it's worth.

CHAIRPERSON: And that he conducted a watch over the Chicken Farm to avoid attacks. 

MR MOHLABA: And that will conclude the applicant's testimony.

CHAIRPERSON: Have you got any questions Ms Thabete?

CROSS-EXAMINATION BY MS THABETE: Just one Mr Chair.

&#9;How were you arrested, how did it come about that you were arrested?

MR MHLAKAZA: When we saw that these conflicts has come down I told my friend that I have to go to work tomorrow and I have to sleep early so that I should be at work on time. My friend was still there. We were arrested because of the lady whose door we damaged because this also happened in front of her shack.

CHAIRPERSON: What is that lady's name?

MR MHLAKAZA: I later learned in court that she was called Normakepu.

CHAIRPERSON: Is that her first name or surname?

MR MHLAKAZA: It's her first name.

CHAIRPERSON: Do you know what her surname is?&#9;

MR MHLAKAZA: I have forgotten the surname.

CHAIRPERSON: Can she be found on this Chicken Farm?

MR MHLAKAZA: That I'm not sure of, Sir.

CHAIRPERSON: Are you in prison at the moment?

MR MHLAKAZA: That is correct, Sir, I'm in prison.

CHAIRPERSON: What were you sentenced?

MR MHLAKAZA: I was sentenced to 26 and a half months.

CHAIRPERSON: Months?

MR MHLAKAZA: 26 and a half years, I beg your pardon.

MS THABETE: Okay, the assault that you were convicted of, is the assault on the man you found in the shack with the couple? The assault that you were convicted of, is it the assault which was done by your accomplice in the shack where you found this couple, this man sitting on the bed?

MR MHLAKAZA: That is correct.

MS THABETE: And was this man also part of the Chicken Farm?

MR MHLAKAZA: Yes, he was one of our comrades who was staying there in Chicken Farm.

MS THABETE: Now what political objective did you seek to apply by assaulting him or what political objective would you have obtained by assaulting one of your own?

MR MHLAKAZA: When he alighted the bed as I have said, my friend thought that he was retaliating and my friend had a knife and he stabbed him in the forehead.

CHAIRPERSON: When were you sentenced?

MR MHLAKAZA: In 1992 on the 10th September.

CHAIRPERSON: And what sentence did you get for the assault?

MR MHLAKAZA: Two years for the assault.

CHAIRPERSON: Have you already completed that sentence?

MR MHLAKAZA: Yes I've already completed that sentence.

MS THABETE: Thank you.

NO FURTHER QUESTIONS BY MS THABETE

CHAIRPERSON: The same questions can be asked of the malicious injury to property. What political objective would you have sought to achieve by kicking down the door?

MR MHLAKAZA: What made us break the door down was due to the fact that we were not sure that the person who really inside this house was one of the people that we were chasing and we asked them to open the door and they refused to and that is why we broke down the door.

CHAIRPERSON: Yes thank you, you are excused.

MR MHLAKAZA: Thank you.

WITNESS EXCUSED

CHAIRPERSON: Mr Mohlaba, have you got any submissions to make, we only want you if you want to. We only need submissions on the question of assault.

MR MOHLABA: I've got no submission, Chairperson, thank you.

CHAIRPERSON: Have you got any submissions?

MS THABETE: No submissions Mr Chair.

CHAIRPERSON: Thank you, we will take time to make a decision on this issue and it will be published in due course.

&#9;Is that the roll for the day?

MS THABETE: Yes Mr Chair it is. I would suggest that we remove from the roll the matter of Mr Gerane.

CHAIRPERSON: Ja well, before we get to that - Mr Mohlaba, what has happened to that other client of yours?

MR MOHLABA: It's Mr Gerane, I did not see him, he did not show up and he is outside, he is not in custody and the last time he appeared it was suggested by the presiding officers that if certain information could be found this matter could be treated as a chamber matter and ever since I could not get contact with him.

CHAIRPERSON: Now what do you propose to do, it's after all your client?

MR MOHLABA: That the matter be struck off the roll.

CHAIRPERSON: Has he been informed that the matter is coming up today?

MR MOHLABA: He was not formally informed and I had a discussion with Ms Thabete that because there was a difficulty in finding him that I will convey the message through to him and through my contact I did convey message but I don't have a confirmation that he was in fact advised of this.

CHAIRPERSON: Well then we can't strike the matter from the roll because he has not been formally informed. I think the matter must then be postponed sine die in order to give the TRC an opportunity to contact him. Okay, so be it, that matter is then postponed sine die. What about tomorrow's matters? We've got two left, I see the one hasn't even got an amnesty number?

MS THABETE: Which one?

CHAIRPERSON: What is the position with those Ms Thabete?

MS THABETE: Mr Chair, the other one which doesn't have a reference number, the reference number is 7647/97. The position with regard to these two applications Mr Chair, is that it's one matter and Section 19.4 notice was served by our investigator, Oba.

CHAIRPERSON: For which date?

MS THABETE: For tomorrow, Mr Chair, so I'm not in a position to know whether they will be coming tomorrow or not because they are not in prison.

CHAIRPERSON: Are they in prison?

MS THABETE: They are not in prison and the last time, Mr Chair, why I am saying I'm not in a position to know whether they will pitch up tomorrow it's because they were set down in February and they were not heard because they did not pitch at the hearing so I'm really not sure whether they will pitch this time.

CHAIRPERSON: In the meantime has the TRC made any effort to contact them?

MS THABETE: They were served personally Mr Chair with the Section 19.4 notice.

CHAIRPERSON: After September's hearing?

MS THABETE: After February's hearing yes.

CHAIRPERSON: So do you have an address?

MS THABETE: Yes Mr Chair.

CHAIRPERSON: And a phone number perhaps?

MS THABETE: No phone number.

CHAIRPERSON: Is there no way we can contact them at those addresses or that address?

MS THABETE: I telephoned Oba to come to the hearings today because we wanted to establish whether they would be coming tomorrow to the hearings. We will try and establish that fact today so that we don't waste time and come here tomorrow only to find out that they wont be here.

CHAIRPERSON: By what time will you know?

MS THABETE: Sorry Mr Chair, can you give me a minute? 

&#9;Mr Chair, our Investigator is here, Mr Oba, he says he did serve these notices personally so we'll try and find out today whether they will be coming tomorrow or not.

CHAIRPERSON: I see it's one o'clock now. How long would you need to find that out?

MS THABETE: Apparently there is a guy they trust who we can contact telephonically so we'll phone this guy quickly to find out.

CHAIRPERSON: Well I'll wait in Chambers then you can come tell us.

MS THABETE: Okay.

CHAIRPERSON: We'll adjourn for lunch.

MS THABETE: Thank you Mr Chair.

COMMITTEE ADJOURNS

NO FURTHER MECHANICAL RECORDING

&#9;

 

 

 

 

 

 

 

 

