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Name: Victor Mthandeni Mthembu

06-07-1998: Day 1

Application No: Am 1707/96

CHAIRPERSON: Good morning, ladies and gentlemen, my name is Sandile Ngcobo, I'm a Judge of the High Court in Cape Town, I'd be the Chairperson of this inquiry. On my left we have Mr Lax who is a member of the Committee and on my immediate right we have Advocate Sigodi, on my far right we have Mr Sibanyoni who are all members of the Committee which will deal with this matter.

For the record, would counsel appearing for the applicants just place themselves on record?

MS PRETORIUS: I am Cynthia Pretorius, I'm representing only one and that is Victor Mthembu.

CHAIRPERSON: Thank you Ms Pretorius.

MS PRETORIUS: It's for the applicant, I'm sorry, I used the wrong word, it's for the applicant - Victor Mthembu.

MR STRYDOM: My name is R Strydom, I appear on the instruction of the firm J.H. van der Merwe for the other applicants except Thomas Lukhozi who ended our mandate.

CHAIRPERSON: Thank you Mr Strydom.

MR BRINK: Mr Chairman, I appear as evidence leader for the Committee, R.B. Brink.

MS CAMBANIS: Thank you Mr Chair, I'm Crystal Cambanis of Nichols Cambanis Attorneys, I appear on behalf of twenty family members or injured persons. I don't know if you want me to go through the twenty names or whether I may hand a copy of the twenty names possibly to Mr Brink?

CHAIRPERSON: I think it will be sufficient if you would just prepare a list of those victims and just perhaps hand it up to all the legal representatives and the Committee.

MS CAMBANIS: Thank you Mr Chair.

MR BERGER: Mr Chairman, my name is D. Berger, I represent twenty victims as well. I have a list of the names of the victims, I will also make that list available to the Committee and to Mr Brink.

CHAIRPERSON: I think at the outset let me apologise for having started late. These proceedings were supposed to commence at 10 o'clock but unfortunately, because of certain logistical problems, we could not commence in time. Added to that is the problem of the victims who have very recently secured legal representation. The legal representatives of the victims or some of the victims, I should add, have not had the opportunity of consulting with their clients so as to properly represent them. That being the case, the Committee has decided to allow the legal representatives of the victims to consult with the victims and thereafter, advise the Committee of the progress that they have made, preferable before 11.30 which is the time by which we hope to resume again if there are no further problems. I want to say that if there are victims in this hall who do not have legal representation, is they would be kind enough to get in touch with Mr Berger or Mr Brink, the evidence leader and indicate to him whether or not they require legal representation so that we can look into the matter and see how we can address the problems. We intend rising and coming back at quarter to twelve, which is approximately an hour. Is there anything you want to raise Mr Brink?

MR BRINK: No thank you, Mr Chair.

CHAIRPERSON: Okay, very well, the Committee will rise, we'll come back at quarter to twelve.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Once again ladies and gentlemen, let me welcome all of you to this Amnesty Hearing which relates to what has become known as the Boipatong Massacre. Finally we are able to proceed after we've had some technical delays. Ms Pretorius, I gather that you will be starting with the sixteenth applicant, is that right?

MS PRETORIUS: That's correct.

CHAIRPERSON: Yes, very well.

VICTOR MTHANDENI MTHEMBU (sworn states)

CHAIRPERSON: What language would you like to speak?

MR MTHEMBU: Zulu.

EXAMINATION BY MS PRETORIUS: Mr Mthembu, you are an applicant in this matter, you are applicant number sixteen. You've completed an application form on the 9th May 1997, is that correct?

MR MTHEMBU: That is correct.

MS PRETORIUS: And it was sworn to be the truth by you on that date, is that correct?

MR MTHEMBU: That is correct.

MS PRETORIUS: Then you made a statement on the 14th day of November 1996 wherein you made a statement firstly in connection with the Sebokeng attack that happened after the Boipatong attack and then you also made a statement in connection with the Boipatong attack, is that correct?

MR MTHEMBU: That is correct.

MS PRETORIUS: You have perused that statement again this morning?

MR MTHEMBU: That is correct.

MS PRETORIUS: And it is correct as stated on the 14th November 1996?

MR MTHEMBU: Yes, that is the truth.

MS PRETORIUS: Then we were request...[intervention]

CHAIRPERSON: Yes, Advocate Pretorius?

MS PRETORIUS: I'm sorry?

CHAIRPERSON: For the record would you indicate as you lead the witness where the documents occurs on the records? Thank you.

MS PRETORIUS: I am sorry, sir. The first statement that your application is on page 1, 1 and up to page 3 - that is the application you made on the 9th May 1997. Then you made an affidavit on the 14th November 1996 but that is in relation to the Sebokeng matter where you incidentally also made a statement after the Boipatong matter, that is page 4 up to page 17. The first part up to page 8, that is paginated page 8 was in connection with the Sebokeng attack which is not for this Committee today, it will be brought before the Committee on a later date. But from page 8 up to page 17 you made a statement regarding the Boipatong Massacre, is that correct?

MR MTHEMBU: That is correct.

MS PRETORIUS: Then page 18 and up to page 21 was a request for further particulars from the Truth and Reconciliation Commission which was answered as requested on page 22 up to page 35 and it was signed by you after all the questions that was asked by the Truth and Reconciliation Commission was answered, is that correct?

MR MTHEMBU: That is correct.

MS PRETORIUS: Then you made a statement of how Boipatong was attacked. That was also by request of the Amnesty Committee who wanted a further statement, is that correct?

MR MTHEMBU: That is correct.

MS PRETORIUS: This statement is on page 36 of the paginated papers, is that correct?

MR MTHEMBU: That is correct.

MS PRETORIUS: All these statements you made and the affidavits you signed, the last one goes up to page 42, you still declare under oath that everything you said in these statements were the truth and nothing but the truth, is that correct?

MR MTHEMBU: That is correct.

MS PRETORIUS: There is one fact that you would like to change, that is on the paginated page 22, the first paragraph that reads "I first moved to Kwamadala Hostel during November 1991". Which is the correct date Mr Mthembu?

MR MTHEMBU: The correct date is one which I do not remember but it was 1990.

MS PRETORIUS: So that was a typing error that you drew my attention to this morning, is that correct?

MR MTHEMBU: Yes, that's correct.

MS PRETORIUS: Then on paginated page 11 and page 12, you make mention that you, in paragraph 21 and paragraph 22, that the policeman that was present at the stadium with Themba Khosa after the Boipatong Massacre was General Johan van der Merwe. Do you still say it was him? Do you know whether it was him?

MR MTHEMBU: Although I do not remember correctly but it was somebody high up in the police hierarchy, but it may not have been Van der Merwe.

MS PRETORIUS: Mr Mthembu, the last paragraph of your submission to this Committee, I would like to read out and just ask you whether that is how you still feel today, if it's written by you on your own, is that correct?

MR MTHEMBU: Yes.

MS PRETORIUS: It reads: "To conclude my statement, I would like to say to the community of Boipatong and to the residents who lost their loved ones, I am very sorry and I'm asking them to forgive me because today I am behind bars and I realise what a dreadful thing we did that night. I would like to tell the Committee that we would not have done these things if the people of Boipatong did not terrorise the IFP members. If the comrades had not killed the IFP members we realise that we partook in the massacre of people, some who were my family and friends and I feel very bad about this. If it had not been a war situation between the IFP and the ANC, I would not have participated. I am especially sorry for the young children who died for nothing because I know that they didn't do anything and didn't know anything about the attack and the problems between the IFP and the ANC. I do apologise and know there is no way I can bring these people back. I do ask in the spirit of peace and reconciliation that they will forgive me and that we can carry on with our lives without hatred because I am a child of God. I ask for forgiveness from everybody in Boipatong and especially to those who lost their loved ones." Is that the paragraph you wrote?

MR MTHEMBU: Yes that is so.

MS PRETORIUS: Mr Mthembu, there have been allegations that the police was involved in this attack. Did you speak to Dr d'Oliveira's special investigative unit about this - about police involvement at the Boipatong Massacre?

MR MTHEMBU: No, what I can say is that I don't know about the involvement of the police in this incident.

MS PRETORIUS: According to you were the police involved?

MR MTHEMBU: No.

MS PRETORIUS: And you stand by your statement?

MR MTHEMBU: Yes.

MS PRETORIUS: Were the army involved in any way in this attack?

MR MTHEMBU: No, they were not involved.

MS PRETORIUS: I have no further questions, thank you.

NO FURTHER QUESTIONS BY MS PRETORIUS

CHAIRPERSON: Mr Strydom, do you have any questions to put to the applicant?

MR STRYDOM: Only a few questions.

EXAMINATION BY MR STRYDOM: Who made the decision to attack Boipatong?

MR MTHEMBU: Mr Tjonjo.

MR STRYDOM: Only him, or someone else as well?

MR MTHEMBU: He worked with Mr Mkhize.

MR STRYDOM: Were you with them when they made a decision or not?

MR MTHEMBU: I was not present when they made the decision.

MR STRYDOM: Can you tell the Committee where Mr Damara Tjonjo is today?

MR MTHEMBU: As far as I know what I heard whilst I was in prison is that he is deceased.

MR STRYDOM: More or less when did you hear that he died?

MR MTHEMBU: I think it was in 1993 when I was in prison, I cannot quite remember the date.

MR STRYDOM: I briefly want to enquire more about the background and the reason for the attack and when I say background, that's the background that gave reason to the strike between the IFP staying in the Kwamadala Hostel and the people staying in the townships, more specifically Boipatong. Can you give us more information in this regard?

CHAIRPERSON: Just before you answer that question, you've referred to a Mr Mkhize, would you give us his names please?

MR MTHEMBU: ...[indistinct] Nkosi Mkhize.

CHAIRPERSON: Thank you.

MR MTHEMBU: Firstly I will say while people were attacked in Boipatong, as far as I know I was surprised when we were called to the stadium. We congregated, I was surprised at the time at which the meeting was called because it was not usually or it was not normal that meetings were called at about 8 p.m. in the evening. On our arrival at the stadium every person who stayed in Kwamadala Hostel was present but what surprised me was that women were told to return to the hostel. They left and it was only men who remained. That was when Mr Tjonjo told us that we had to attack the people of Boipatong. We prepared everything until the traditional potion or Indelezi was sprinkled on us before we went on this mission. From there ...[intervention]

CHAIRPERSON: Mr Mthembu, would you just bear in mind that there are interpreters who are interpreting what you are saying into other languages and would you please speak slowly so that you can afford them time to interpret what you're saying. Do you understand that?

MR MTHEMBU: Yes, I understand, I'll do so.

MR STRYDOM: Can I also just interrupt you here, Mr Mthembu, I just want to repeat my question just to make it clear to you - I want to know about the problems between the IFP people staying in the Kwamadala Hostel and the people that stayed in the townships at that stage. If you can answer that question please?

MR MTHEMBU: Our problem with the people who stayed in the township was that there was conflict between us in that there were comrades who prevented people who stayed at Kwamadala Hostel from buying at shops in the location. That hurt us very much when we discovered that they would actually attack our comrades and necklace them, that is what the people in the township did. As far as I can tell, I think that was the cause of the conflict because if a person was discovered to be an IFP member he would have to be killed if he was found in the township.

MR STRYDOM: Were certain people killed?

MR MTHEMBU: There are many people who died, many whose funerals I attended. If they went to the township for instance to visit their parents, but if the comrades spotted them there, they would actually take them and kill them.

MR STRYDOM: Did you feel free to move around in Boipatong at that time? I'm referring to 1992.

MR MTHEMBU: I was not free to move around in Boipatong at that time but I would do so. For instance I had to take taxis to town from Boipatong and just hope that I won't be killed.

MR STRYDOM: Do you names of any IFP members that was killed before the 17th June 1992 in the township?

MR MTHEMBU: The person I remember was some boy, ....[indistinct] boy from Mahlabatini, he was one of the people who was killed in that location. I don't remember the names of the others because I did not know them well.

MR STRYDOM: In the Kwamadala Hostel lived two groups of people. Firstly the people that worked for ISCOR and another group of people that fled to that hostel and found refuge there, is that indeed so?

MR MTHEMBU: People were united in the hostel, there were people who were working and there were people who had fled from the township and sort refuge in the hostel.

MR STRYDOM: Do you know why the people fled from the townships to the hostel?

MR MTHEMBU: The reason was the violence, the conflict between the ANC and the IFP, that was why they fled because their houses were being burnt.

MR STRYDOM: I've got no further questions.

NO FURTHER QUESTIONS BY MR STRYDOM

CHAIRPERSON: Thank you Mr Strydom. Mr Berger, I understand your predicament. What do you propose to do, do you have any questions that you want to put at this stage?

MR BERGER: Chairperson, I explained in Chambers or in the Committee Room, we have not yet had an opportunity to consult with any of the victims or any of the families and so we are not in a position at the moment to put any questions. We would ask that the matter be adjourned until tomorrow and hopefully at that stage we will then be in a position to put questions.

CHAIRPERSON: Does it apply to you?

LEGAL REPRESENTATIVE: No.

CHAIRPERSON: Yes, thank you. Mr Brink do you have any?

MR BRINK: Mr Chairman, I have no questions at this stage and if I would have then it would possibly after Mr Berger has put all the questions which he intends putting but at this stage I have nothing to ask.

NO QUESTIONS BY MR BRINK

CHAIRPERSON: The legal representatives of the victims have indicated to us that they have not had time, sufficient enough, to consult with their clients so as to be in a position to represent them properly at these hearings and what we propose doing is to adjourn these proceedings at this stage until tomorrow morning to enable the legal representatives of the victims to take instructions from their client and come and put such questions as they may be instructed to put to the applicant. Do you understand that, Mr Mthembu?

MR MTHEMBU: Yes, I understand.

CHAIRPERSON: Very well, these proceedings are therefore adjourned until tomorrow morning at 9.30.

WITNESS EXCUSED

COMMITTEE ADJOURNS

07-07-1998: Day 2

ON RESUMPTION

CHAIRPERSON: Good morning ladies and gentlemen. It has come to the attention of the Committee that some of the victims of the massacre are not legally represented. They have the right to be legally represented so the legal representatives who are at present representing some of the victims have kindly agreed to see whether they can also represent the remaining victims and if necessary then consult with them. As a result of that we cannot proceed immediately with this hearing. We will give the legal representatives some time to consult with the victims and to sort out the question of their representation. Thereafter, they will report back to the Committee as to the progress that's being made in that regard. In order to do that, we will stand these proceedings down until 11.30 by which time, we hope then, we will be able to have sorted out the question of representation of all the victims. I would therefore request the victims to please remain behind so that they can discuss the matter with the legal representatives. Thank you very much for your patience.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Yes, Mr Berger?

MR BERGER: Thank you Chairperson. Chairperson, on behalf of the victims I represent 20 families at the moment and Ms Cambanis represents another 20 families. There are in addition another 26 families who need legal assistance, need to be represented in these hearings and we are attempting to secure representation for them. Given that, people have only been given representation at a very late stage. We require some more time in which to consult with them and to prepare properly for their cases. There is also the question of the docket which we have discovered is in Pretoria and we have made arrangements for the docket to be inspected. That will take place tomorrow morning and all the legal representatives are invited to go through to Pretoria tomorrow morning to inspect the docket. We would ask then, Chairperson, that the matter stand down until Thursday morning when we hope then to be in a position to begin the cross-examination of Mr Mthembu.

CHAIRPERSON: Yes. Ms Cambanis, do you have anything to say?

MS CAMBANIS: Nothing to add except to associate with the comments and ask that the matter be held over till Thursday.

CHAIRPERSON: Advocate Pretorius, do you have any objection to the application by Mr Berger?

MS PRETORIUS: At this state I have no objection, Mr Chairman.

CHAIRPERSON: Mr Strydom?

MR STRYDOM: We have no objection, Chairperson.

CHAIRPERSON: Mr Brink, do you have any objection to the application?

MR BRINK: No, I have no objection with regrets, I'm just sorry the matter can't proceed at this stage but nonetheless let it be.

CHAIRPERSON: Advocate Pretorius, I gather that some of your clients are in prison?

MS PRETORIUS: Victor Mthembu's applicant is in prison. He's in Pretoria, he's being held in Pretoria, they are driving through every day, Mr Chair.

CHAIRPERSON: Yes, Mr Strydom what about yours?

MR STRYDOM: Five of the people I appear for are in prisons.

CHAIRPERSON: Okay. What are the names of those who are in prison?

MR STRYDOM: Tebogo Magubane, Timothy Stals Mazibuko, Jack Mbele, Sonny Michael Mkwanazi and in fact the other person is Thomas Lukhozi and I've already placed on record that we don't appear on his behalf any more. So it's actually just the four. These four people are kept in the Vereeniging Prison.

CHAIRPERSON: Okay, otherwise the others, are they not in custody?

MR STRYDOM: Not in custody?

CHAIRPERSON: Yes, for a while?

MR STRYDOM: But I must also the people, the names I've given are in custody in other matters.

CHAIRPERSON: Okay. Is Thomas Lukhozi here?

MR STRYDOM: He's not here today.

CHAIRPERSON: Mr Brink, do you know what's to become of his application?

MR BRINK: I'll endeavour to make enquiries, I do know that he apparently terminated the mandate of the attorneys acting for him, he wanted counsel in the person, Mr Burger, I'm not sure what his initials are. Mr Burger apparently is not available for the rest of this year. Another Mr Burger, B-u-r-g-e-r.

CHAIRPERSON: Okay, would you endeavour to find out what his position is so that we can know what is to become of his application?

MR BRINK: Yes.

CHAIRPERSON: So that when we next resume we'll know what's to become of the application?

MR BRINK: Yes.

CHAIRPERSON: Yes, very well. It is with regret that...[intervention]

MR BRINK: Sorry, sorry, Mr Chairman, before you announce the adjournment, I wonder if I could just place a couple of matters on record for housekeeping purposes. You will remember that yesterday afternoon a meeting was held in a form of a sort of pre-hearing meeting and the following was agreed. The first item is now academic and that related to obtaining the original incomplete applications from the Cape Town office, alternatively for Mr Strydom to obtain them, those have now been got, the Committee has seen them which indicates that the applications in their incomplete form were in fact received by the Amnesty Committee in Cape Town on the 10th May. That is, as I understand it, will still not effect Mr Berger's attitude in regard to his submission as it will be that those applications in any event are - can't be heard because they were not completed but I place that on record.

Secondly, I understand that Mr Berger will be opposing the applications on a so-called blanket basis, in other words, he will contend that there can be no political objective within the meaning of the act and that refers to proportionality as well and that there will have been no full disclosure. I understand that will be his attack on the hearing as a whole in the event that all the applications are heard. If I'm not correct, no doubt Mr Berger will put me right.

Thirdly, if during the course of cross-examination by Mr Berger or Ms Cambanis, if during the course of cross-examination of any particular applicant who says he does not remember a specific incident, Mr Berger will then approach the applicants' legal representatives and say "I propose, if necessary, calling evidence to prove what your client hasn't remembered" it may then well be that that evidence wont be necessary because Advocates Pretorius and Strydom will concede that that may well have been the case, that this is how things did happen on the basis the applicant didn't remember. So that might shorten things in any event.

Those were the matters discussed yesterday which I set them out now.

CHAIRPERSON: Yes, Advocate Pretorius, do you confirm that?

MS PRETORIUS: Yes, that is correct.

CHAIRPERSON: Advocate Strydom?

MR STRYDOM: I confirm that?

CHAIRPERSON: Yes. Advocate Berger?

MR BERGER: Chairperson, as far as the first point is concerned, the applications, I understood that we were attempting to get the entire paper trail from the time that the applications were originally sent in which was on the 10th May 1997 until the real applications, if I can call them that, were submitted which was in 1998. All we've received so far is the original letter which was faxed through on the 10th May 1997 as well as the original application, the first application that was faxed through. We haven't received the other documents in the paper trail and if it's not proposed to tender them, well then we will argue on that basis, that's alright with us. Our stance is clear, that is that the applications are not valid applications this is but for Mr Mthembu's application, they're not valid applications because they don't comply with the requirements of the Act. The applicants legal representatives know that that is our position and if they have any documents which can shed light on it, so be it. If the documents are only those documents which we have before us, well then we will argue on the basis that those are the only documents which exist and we will make our argument in that regard. The only point I'm making is that the full paper trail has not been revealed, if it's not going to be revealed, we will argue on that basis as well, that's fine.

The second point, Chairperson, is that Mr Brink said that we had a blanket opposition to amnesty. That's strictly speaking not correct. What we said was that we will oppose on the three bases set out in Section 20, Sub-Section 1 of the Act and in particular, in so far as acts associated with a political objective are concerned, we will oppose on that basis within the meaning of Section 21 and 23 of the Act. We're not saying that there was no conflict, we're not going to argue there was no conflict of any nature.

CHAIRPERSON: Yes, as I understand what Mr Brink is saying, it is simply that the objectors intend opposing the application on much broader basis that the criteria set out in the Act for the granting of the amnesty has not been satisfied.

MR BERGER: Yes, then he's correct, yes.

CHAIRPERSON: I don't think that he goes further than that to suggest that there wasn't any conflict.

MR BERGER: Yes.

CHAIRPERSON: That's how I understand the - is that right Mr Brink?

MR BRINK: With respect, you're completely correct, yes.

MR BERGER: Then I have nothing further.

CHAIRPERSON: Yes.

MR BRINK: Mr Chair, may I just enquire from my learned friend, Mr Berger, does he accept that the applications and I'm not talking about Mr Mthembu's application, does he accept that the other applications were in fact received by the Amnesty Committee in Cape Town on the 10th May or not or does he require evidence to be called by the Executive Officer - Executive Secretary?

CHAIRPERSON: I think, Mr Brink, these matters which perhaps you should take up with Mr Berger once we have adjourned so as to find out the precise basis upon which the objection is being raised in regard to the remaining applications but I think that the point he has made so far that they are not yet in receipt of all the, what he described as the paper trail.

MR BRINK: Yes.

CHAIRPERSON: I think you have to sort that out.

MR BRINK: I'm sorry Mr Chairman, the point is and I don't suggest he is not entitled to argue, all I want to know is whether he accepts for the purpose of the argument which he will raise, whether he accepts that those incomplete applications were received on the 10th May, that's obviously without prejudice to argue the matter.

CHAIRPERSON: Well that is precisely what I'm telling you and that is you'd have to discuss that with Mr Berger.

MR BRINK: You don't want it on record.

CHAIRPERSON: Yes, very well. It is unfortunate that these proceedings cannot proceed at this stage but in view of the application that has been made by Mr Berger who represents 86 victims, there can be no question that the victims are entitled and indeed have the right to be represented at these hearings because the decision which this Committee might make might well effect their right. In these circumstances the Committee is disposed of granting the request by Mr Berger that these proceedings be stood down until Thursday morning to enable him not only to consult with the victims whom he represents but also to peruse the docket relating to the Boipatong Massacre which I gather is going to take place tomorrow morning. However in view of the fact that we appear to have lost time it would seem to us that it's highly desirable that when we resume on Thursday we sit much longer hours than we had been planning to sit so that we propose that on Thursday we commence sitting at 9 o'clock in the morning. Does anyone have a problem with that?

The other matter which I want to place on record is that there are those of the applicants who are in prison and I have been informed that there are problems getting them here in time. To enable this Committee to commence it's sitting timeously on Thursday, I would urge the prison authorities both in Pretoria Central Prison where the applicant Victor

Mthandeni Mthembu is being held as well as the prison authorities in the Vereeniging prison where Tebogo Mgubane, Timothy Stals Masibuko, Jack Mbele, Sonny Michael Mkwanazi are held to ensure that these applicants are present here at least by 8.30 on Thursday and on Friday when we'll be continuing to sit. Is there anything else you want to place on record?

MS PRETORIUS: No thank you, Mr Chair.

CHAIRPERSON: And finally, I want to mention two matters and that is I would urge the victims to please cooperate with the legal representatives and make themselves available for a consultation so that we can make some progress and secondly I would urge the legal representatives to cooperate with one another ensuring that whatever documents they need from one another they make available to one another so that we can make some progress in this matter. Thank you.

COMMITTEE ADJOURNS

09-07-1998: Day 3

ON RESUMPTION

CHAIRPERSON: Good morning ladies and gentlemen. After a long delay we are able to resume these hearings again and hopefully there will be no further disturbances. I want to thank you for your patience thus far. Where is Mr Mthembu? Is Mr Mthembu here?

Mr Mthembu may I remind you are still under oath to speak the truth, do you understand that?

VICTOR MTHANDENI MTHEMBU: (s.u.o.)

CHAIRPERSON: Let me ask you to speak as loud as you can so that people at the back of the hall could hear what you have to say. Do you understand that?

CHAIRPERSON: Mr Berger are you ready to commence your cross-examination?

MR BERGER: Thank you Chairperson, yes I am.

CHAIRPERSON: Yes, very well, would you proceed then?

MR BERGER: Chairperson, before I commence cross-examination could I just place on record that between Ms Cambanis and me all the families of people who were killed or injured in the Boipatong Massacre on now represented by the two of us.

CHAIRPERSON: We appreciate that Mr Berger and Ms Cambanis for which the Committee thank you for that.

MR BERGER: Yes, thank you.

CHAIRPERSON: Perhaps it would be convenient at this stage if a complete list of the victims could then be handed in but at an appropriate stage?

MR BERGER: Chairperson, that's already been done.

MR STRYDOM: Mr Chairperson, I'm sorry to interrupt. Can I just also just place on record at this stage that Mr Sithembiso Khubeka arrived at the hearing this morning. We have been instructed to appear on his behalf as well. That is the person that applied for amnesty independently and there was also application through the attorneys initially by he has now arrived at the hearings and we were instructed to appear on his behalf.

CHAIRPERSON: Is his application before us?

MR STRYDOM: Mr Chairperson, as previously indicated Mr Khubeka independently applied for amnesty and I can refer you, Mr Chairperson, to a statement concerning gross violations of human rights with the official reference number and in this statement I found the following and this I can also say this statement was made on the 10th May 1997, but I found the following statement here: "I have also applied for amnesty to the TRC but I am not sure if that form is well filled because I was helped by someone for I can't relate and express myself well in English." Now I have taken this up with Mr Wessel Janse van Rensburg and he undertook to clarify the situation and see if he can find that application. I can also mention that initially when applications were made by the attorney on behalf of all the people that were convicted during the criminal trial, his name was included in that initial application that was made on the 10th May 1997, that was faxed through to the TRC.

CHAIRPERSON: Well, do you have anything to say to that Mr Brink?

MR BRINK: No, just to confirm what Mr Strydom has said.

CHAIRPERSON: Yes, very well, the difficulty that we have here is that we did not have his application before us and until his application is properly placed before us, we are unable to consider his application. Perhaps at an appropriate time, would you endeavour to locate whatever application he may have made and place that before us. Would you do that Mr Strydom?

MR STRYDOM: That would be done, Chairperson.

CHAIRPERSON: Just for the record, what is the name of this individual?

MR STRYDOM: I'm going to spell his first name : S-i-t-h-e-m-b-i-s-o his second name is Mountgenery : M-o-u-n-t-g-e-n-e-r-y Kubheka : K-u-b-h-e-k-a.

CHAIRPERSON: For the purposes of this Committee, the application by Mr Kubheka is therefore not before us until such time that it is properly brought before us. I suppose you'll endeavour to ensure that you locate the application and perhaps put that before the Committee.

MR STRYDOM: That would be done, Mr Chairperson.

CHAIRPERSON: Yes, very well. Mr Berger?

MR BERGER: Thank you Chairperson, also if my learned friends could provide us with copies of that application.

Mr Mthembu can you hear me?

MR MTHEMBU: ...[inaudible]

CROSS-EXAMINATION BY MR BERGER: Mr Mthembu, could you clarify for us please precisely which acts you seek amnesty for?

MR MTHEMBU: ...[inaudible, no interpretation]

MR BERGER: I want to know from you if you seek amnesty for, let me start, killing any people?

MR MTHEMBU: ...[inaudible, no interpretation]

MR BERGER: Mr Mthembu, if I could just ask the interpreter to speak up, I'm having difficulty hearing.

Mr Mthembu, what I'm asking you is how many people did you kill in Boipatong on the 17th June 1992?

MR MTHEMBU: Mr Berger, I may not know how many people I killed on that day because it was a night time I would not be sure how many died or how many I killed personally.

MR BERGER: You say because it was at night you're not sure how many people you killed?

MR MTHEMBU: Yes, that's what I'm saying.

MR BERGER: It was a clear night, was it not?

MR MTHEMBU: It was like any other night as far as I could tell

MR BERGER: There was a full moon, there was no smoke around, is that correct?

MR MTHEMBU: As far as I know there was some smoke because in the township some of the people used coal stoves.

MR BERGER: There was an Apollo light which cast a substantial amount of light over the houses, is that not correct?

MR MTHEMBU: Yes, there were Apollo lights in the township.

MR BERGER: And you had to be able to distinguish between attackers and victims so that you kill some of your own attackers, isn't that right?

MR MTHEMBU: Yes, that is correct.

MR BERGER: So I'm putting to you that it was perfectly easy for you to see the people that you killed. Do you dispute that?

MR MTHEMBU: What I may explain, I know which type of weapon I had but as you asked how many people I killed, I may not be able to specify because it could be that I killed some people or I did not kill them, they may have got injured or killed, I may not know.

CHAIRPERSON: Perhaps you should tell us how you were armed?

MR MTHEMBU: I had a spear.

MR BERGER: How big was the spear?

MR MTHEMBU: I don't know how I can estimate this

MR BERGER: Could indicate with your hands how long the blade was?

MR MTHEMBU: I think it was that long.

MR BERGER: The entire spear?

MR MTHEMBU: Well the tip was about that length and the entire length that big and then I had a knobkierrie as well.

MR BERGER: For record, Chairperson, it would appear as though the spear was about two metres long and the tip or the sharp portion of the spear about 30 centimetres.

CHAIRPERSON: Do you accept that Advocate Pretorius?

MS PRETORIUS: To me it does not look like two metres, I think it's about a metre and 50 centimetres but it's neither here nor there, Mr Chairperson. He admits he had a spear and he had a knobkierrie.

CHAIRPERSON: But that's not the issue, the issue what I'm asking you is do you accept the estimation. Mr Mthembu, would you please indicate that again?

MR MTHEMBU: How long was the tip? About that size and then the stick was about that long.

CHAIRPERSON: About 30 centimetres, the blade?

MS PRETORIUS: With that I will agree, Mr Chairperson.

CHAIRPERSON: And perhaps the stick properly about a metre and a half?

MS PRETORIUS: That's correct.

MR BERGER: In addition to the spear, Mr Mthembu, you say you had a knobkierrie with you. Did you have no guns, no other weapons with you?

MR MTHEMBU: I had no other weapons except for these that I've mentioned.

MR BERGER: Alright now, I'm going to attempt to count up the number of people that you could have killed. So let's start with the very first house that you went into and tell us how many people were in that house and how many people you stabbed?

MR MTHEMBU: What I can say when I actually entered the house, I found some of my colleagues inside the house. There were two female children who looked like twins. From there I thought that these were small children and as such did not know anything, were innocent.

MR BERGER: These two small children, small little girls, did you stab either of them?

MR MTHEMBU: No, I did not stab them, instead I had a thought as a parent that I thought of hiding them in the wardrobe in the bedroom but then I thought if I locked them in the wardrobe, it will be difficult for them to be found, discovered and then I hid them under the bed and made sure that colleagues were leaving the house and I will be the last to leave so that these children would be safe.

MR BERGER: Well then if I understand you correctly, you saw these two little girls, you thought they're innocent, they don't deserve to be killed and you ensured that they were not killed, is that correct?

MR MTHEMBU: Yes that is correct.

MR BERGER: That was the first house you went into?

MR MTHEMBU: Yes, that is the one I went into.

MR BERGER: Were there no other people in the house?

MR MTHEMBU: No, I did not see any other people in the house except for these two children.

MR BERGER: So nobody was killed in that house?

MR MTHEMBU: As far as I know I thought that maybe the adults had already fled the house and these two children had been left behind.

MR BERGER: There was nobody in that house that you saw who had been attacked in any way?

MR MTHEMBU: No, I did not see anyone.

MR BERGER: Let's move to the next house, the second house that you entered. Did you stab anyone in that house?

MR MTHEMBU: I did not stab anybody in the second house because I actually met somebody fleeing and I hit him with a knobkierrie and continued fleeing.

MR BERGER: Was that an adult man that you hit with a knobkierrie?

MR MTHEMBU: It was a young man.

MR BERGER: But he ran away, he wasn't killed?

MR MTHEMBU: Yes, he fled.

MR BERGER: That's the only person in that house that you saw?

MR MTHEMBU: Yes I met him at the gate as he was fleeing.

MR BERGER: How many houses did you enter before you found someone that you could stab?

MR MTHEMBU: I would not know how many houses I actually went into because we did not really intend to go inside each and every house but the people we would meet on the streets would be those that we kill.

MR BERGER: But Mr Mthembu, this was late at night already, who were you going to find on the streets?

MR MTHEMBU: As far as I know, as it was in the evening if the people who were responsible for attacks did not sleep, they actually patrolled the streets at night in Boipatong.

MR BERGER: Okay, so the people you were looking for to kill were the people who would patrol the streets of Boipatong at night, is that correct?

MR MTHEMBU: Yes, those were the people, we were looking for the STU's because they were responsible for the violence, the trouble in the area.

MR BERGER: How do you know that all your other attackers, co-attackers were looking for the STU's?

MR MTHEMBU: I hope they know that the cause of the conflict was these people who were responsible for the attacks and then they would get innocent people involved.

MR BERGER: Are you telling the Committee that it was common knowledge in Kwamadala Hostel that the enemy in Boipatong, the people that needed to be killed were the members of the STU's, is that what you're saying?

MR MTHEMBU: Yes, that is what I mean to tell the Committee.

MR BERGER: And the people who sleep in their beds at night in Boipatong, not the people who are patrolling the streets, those are not the enemy as far as the residents of Kwamadala are concerned, is that what you're saying?

MR MTHEMBU: Yes, as far as I can tell, those were not the enemy but because there was already conflict, there was already trouble, innocent people like those got injured.

MR BERGER: Is it your evidence, Mr Mthembu, that before the attack, before you left Kwamadala Hostel, there was a discussion amongst the attackers that the people that you were seeking, that you were going to go to Boipatong to kill, were the members of the Self Defence Units, was that discussed?

MR MTHEMBU: It was not discussed but because we knew after our people had been killed in Boipatong, we knew that the people who had to die were the STU's.

MR BERGER: If I understand you correctly, Mr Mthembu, what you are saying is that it didn't have to be discussed, it was known that the people that had to be killed were the members of the STU's correct?

MR MTHEMBU: Yes, that is correct, Mr Berger.

MR BERGER: And the members of the STU's it was known could be found patrolling the streets of Boipatong at night, correct?

MR MTHEMBU: Yes that is correct.

MR BERGER: Well then, what were you doing looking in the houses, Mr Mthembu?

MR MTHEMBU: What I can say is that these people would commit acts and then hide in these houses so that when we approached and they will see us, they will then hide, run away, flee and hide in the houses. That is the reason why we went into the houses.

MR BERGER: Did you see members of the STU's patrolling the streets of Boipatong that night?

MR MTHEMBU: Because they had the information beforehand, it was not easy for me to see them at the time because they had already fled.

MR BERGER: Who had the information?

MR MTHEMBU: Can you please repeat the question?

MR BERGER: You said because they had the information it was not easy for me to see them - now I'm asking you who had the information?

MR MTHEMBU: I mean that the comrades, some of them saw us approaching because they were not asleep, they managed to flee and hide wherever they could and then innocent people would get injured.

MR BERGER: Did you see members of the STU's observing you as you approached Boipatong?

MR MTHEMBU: Yes, as we approached from - there was a group of people of Umzivo Street, there was a fire, I think they were sitting around a fire. Umzivo Street.

MR BERGER: At which street?

MR MTHEMBU: Umzivo Street.

MR BERGER: Yes, you say there were people sitting around a fire?

MR MTHEMBU: Yes there was a group of them standing there.

MR BERGER: And when they saw you they ran away because they were members of the STU?

MR MTHEMBU: Yes on seeing us they fled towards the township.

MR BRINK: Mr Mthembu, I'll come back to this. Let's go back to the houses that you were going into. Now you told the Committee that you went into a number of houses but that you didn't stab anybody in those houses, is that correct?

MR MTHEMBU: That is correct.

MS PRETORIUS: I'm sorry, I don't think that's correct, Mr Chairperson. I think what was said he went into the first house, he said he didn't stab anybody there, he went into the second house and as the man was fleeing, he met him at the gate and then that was the last that he spoke about the houses. He said "I do not know how many houses I went into, the intention was not to go into every house."

CHAIRPERSON: Mr Berger?

MR BERGER: Chairperson, the witness said and he has just now confirmed again that he went into a number of houses and that there was no one in any of those houses that he stabbed or attacked in any way, but I'll ask the question again.

CHAIRPERSON: Perhaps you should begin by asking him apart from the two houses that he had mentioned, did he go to any other houses.

MR BERGER: Thank you Chairperson. Mr Mthembu, you've heard that question? Besides the first two houses you've spoken about, did you enter any other houses?

MR MTHEMBU: I did not enter any other houses because there was no longer time, sufficient time, to do that because we had to ensure that we returned safely so I don't remember getting into any other houses.

MR BERGER: Mr Mthembu, I'm sure it's been pointed out to you that if you don't tell the truth, you're not going to get amnesty, has that been pointed out to you?

MR MTHEMBU: Yes, I know that.

MR BERGER: Now, how long are you saying you were in Boipatong for? Five minutes, half an hour, an hour?

MR MTHEMBU: I would not know exactly how long. It was a short time as far as I know, maybe half an hour because there were also police and we were also afraid of the police at the time.

MR BERGER: Mr Mthembu, where were the police?

MR MTHEMBU: The police were in the area around the fabrieks, I think it is the National Board Factory and that place is nearer to Boipatong, there were many of these police in their Casspirs there.

MR BERGER: Sorry, Mr Interpreter, could you just repeat that, we can't hear you very clearly, unfortunately.

MR MTHEMBU: There were many police near the factory and those places near Boipatong, there were many of them there at the time.

MR BERGER: And those police who were there were in there Casspirs you say?

MR MTHEMBU: Yes that is correct.

MR BERGER: And you knew they were there when you entered Boipatong, am I correct?

MR MTHEMBU: I did not have knowledge to that effect, I only saw them once we got into Boipatong.

MR BERGER: You saw the police for the first time after you had entered Boipatong, is that correct?

MR MTHEMBU: Yes that is correct.

MR BERGER: And those police were in their Casspirs, is that correct?

MR MTHEMBU: Yes that is correct.

MR BERGER: How many Casspirs?

MR MTHEMBU: I would not say exactly how many there were but there were several of them because there were different types of them but really I cannot say exactly how many of these Casspirs were there.

MR BERGER: And the police in the Casspirs could see you and your fellow attackers, is that correct?

MR MTHEMBU: Obviously they saw us because I think they too meant to get into the township but did not.

MR BERGER: And you were all heavily armed, correct?

MR MTHEMBU: Yes that is correct, we were all armed.

MR BERGER: And the police let you pass into the township, correct?

MR MTHEMBU: Let me explain it as follows. The police, we actually saw them when we got into the township and we only saw them when we took our direction back from where we came.

MR BRINK: Mr Mthembu, I'm putting it to you that that's not what you've said, your evidence was that as you entered the township, that is when you saw the police for the first time?

CHAIRPERSON: I think he said once he was inside, once he was in Boipatong, that's when he saw the police.

MR BERGER: Thank you, Chairperson.

MR BERGER: Your evidence is that when you were inside Boipatong ...[intervention]

CHAIRPERSON: Can you just estimate how far the police were from Boipatong?

MR MTHEMBU: I can say that they were not far away because if you look at the National Board Factories and Boipatong, it is a distance that may be the same as from this point here to the chairs at the back. Yes, the chairs at the back, it was not a long distance.

CHAIRPERSON: Are you referring to the very last row of chairs?

MR MTHEMBU: Yes, the very same chairs, the ones up there.

CHAIRPERSON: Well, you mean upstairs at the back of the hall?

MR MTHEMBU: Yes I mean that one at the upstairs.

CHAIRPERSON: Yes, from where you are to the back of the hall?

MR MTHEMBU: Yes.

CHAIRPERSON: 40 - 50 metres?

MR BERGER: 40 - 50 metres yes.

MS PRETORIUS: Yes, I would say that.

MR MTHEMBU: Yes, that is correct.

MR BERGER: And you say these police whilst you were still inside Boipatong, am I correct?

MR MTHEMBU: Yes that is correct.

MR BERGER: What were the police doing, just standing there with their Casspirs?

MR MTHEMBU: Yes, I saw them standing there with their Casspirs and that was towards the Trek Garage.

MR BERGER: Is it your evidence, Mr Mthembu, that you never went into any house other than the two houses you've already mentioned, is that your evidence?

MR MTHEMBU: Yes that is correct, I did not go into any other house because there were people outside, the ones that were fighting, they were in the streets.

MR BERGER: And how many of those people did you stab, the ones who were outside in the street?

MR MTHEMBU: As I have explain before, I would not be able to say exactly how many there were, I do not deny the fact that there were some people that I stabbed but I cannot say exactly how many.

MR BERGER: Well why not, Mr Mthembu, I don't understand.

Did you stab a hundred people that you can't recall or did you stab ten or five?

MR MTHEMBU: I don't know how to explain this for you to understand. Even though I did stab people, I do not deny that, but I don't know exactly how many people I stabbed. I would not say I stabbed a hundred and tell a lie knowing exactly how many people I stabbed. I therefore cannot say I stabbed three people or so because we were at a war, in a war situation and therefore I was not in the position to count how many people I stabbed.

MR BERGER: It's correct, is it not, Mr Mthembu, that not one of the attackers was hurt during this operation, am I right?

MR MTHEMBU: Would you please repeat the question, I have a problem with the earphones, the headphones here.

MR BERGER: Were any of the attackers, any of your comrades injured during this operation?

MR MTHEMBU: Yes, if I still remember very well, someone did get injured.

MR BERGER: Who got injured?

MR MTHEMBU: He is now deceased as far as I am concerned.

MR BERGER: Well, he never died in Boipatong, did he?

MR MTHEMBU: Yes, that's correct, he did not die in Boipatong, he died in another incident.

MR BERGER: What was his name?

MR MTHEMBU: I think it was Themba.

MR BERGER: Themba who?

MR MTHEMBU: Mabode. Themba Mabode.

MR BERGER: Wasn't Themba Mabode one of your close friends?

MR MTHEMBU: Yes, that's correct.

MR BERGER: So why did you have such difficulty in remembering his name?

MR MTHEMBU: I did not have a problem remembering his name, why are you asking me that question?

MR BERGER: I fact he was your very close friend, was he not?

MR MTHEMBU: He was just friend, not a very close friend.

MR BERGER: How was he injured during the attack on Boipatong?

MR MTHEMBU: He told me that somebody who was walking next to him injured him with a spear on the hand.

MR BERGER: One of these fellow attackers?

MR MTHEMBU: Yes that is correct.

MR BERGER: Let's get back to the people that you stabbed, Mr Mthembu. The first person that you stabbed that night, can you recall who he or she was?

MR MTHEMBU: It would not be easy for me to remember who that person was because I don't know them.

MR BERGER: Was that person a man or a woman?

MR MTHEMBU: It was a man.

MR BERGER: A young man or an old man?

MR MTHEMBU: He was middle aged so to speak.

MR BERGER: And where was he when you stabbed him?

MR MTHEMBU: I found him at the time when he was fleeing, trying to hide himself behind a car in the street.

MR BERGER: Behind a car did you say?

MR MTHEMBU: Yes that is correct.

MR BERGER: And what was he wearing at the time, do you recall?

MR MTHEMBU: I cannot remember, but yes he had clothes on.

MR BERGER: Did you stab him in the back?

MR MTHEMBU: Yes, I stabbed him at the back because he was fleeing.

MR BERGER: And did he fall down when you stabbed him?

MR MTHEMBU: Yes, he fell down, he fell face down.

MR BERGER: How many times did you stab him?

MR MTHEMBU: I stabbed him only once.

MR BERGER: Why only once?

MR MTHEMBU: I had to stab him once because I knew that I was not alone in the attack.

MR BERGER: Are you saying that you left him for your comrades who were behind you so that they could finish him off?

MR MTHEMBU: Obviously I could not stab him several times all by myself knowing that there were many of us.

MR BERGER: And this man was a comrade, a member of the STU, is that correct?

MR MTHEMBU: I would not say whether he was a member of the STU or not because the situation there was such that it is not easy for me to tell the STU members apart from other people.

MR BERGER: You stabbed him, you did not know whether he was a member of the STU's or not, you stabbed him because he might have been a member of an STU, is that what you're saying?

MR MTHEMBU: Yes, that is what I thought.

MR BERGER: That is now one person that you killed, is that correct, or had a hand in killing, is that correct?

MS PRETORIUS: Mr Chairperson, there is no evidence that this person was killed actually, he stabbed him and he fell but there's no evidence that he was killed.

CHAIRPERSON: Mr Berger?

MR BERGER: Chairperson, the witness's evidence if I understood it correctly was that he brought this down with a stab and then left him for the others to finish him off. It's in that context that I'm saying this one person that you killed.

CHAIRPERSON: But did he testify that he killed this man because all he said is that he stabbed him and he fell down.

MR BERGER: Let me rephrase it then, Chairperson.

CHAIRPERSON: I think you should. All that the witness says is that "I stabbed man and the man fell on his face."

MR BERGER: Is it correct that you left this man lying on his face because you expected that your comrades would finish the job that you had started, in other words, your comrades would ensure that the man was dead?

MR MTHEMBU: Would you please listen very carefully, sir, I have explained here that I stabbed this person and he fell face down. I don't know whether he died or not. You should not tell me that I know what happened and obviously he died. I did not say that.

MR BERGER: Did you expect that this man would die after you had stabbed him and he had fallen on his face?

MR MTHEMBU: No, I did not expect that.

MR BERGER: Did you expect that your comrades would finish this man off after you had stabbed him?

MR MTHEMBU: Well, Mr Mthembu, I have a problem, why did you not make sure that this man was dead because after all, he might have been a member of a self defence unit?

MR MTHEMBU: People are not the same and their lucks are equally not the same. If something happens to someone else, it should not be expected that the same thing should happen to the next person. If I stab a person now and he happens to die, the person is dead and this does not necessarily mean that the next person that I will stab will equally die.

MR BERGER: Mr Mthembu, let me put my question again. You went to Boipatong to kill members of the self defence unit, correct?

MR MTHEMBU: Yes that is correct.

MR BERGER: You didn't go to Boipatong to kill anybody else but members of the STU?

MR MTHEMBU: I think yes, some people who were not necessarily members of the STU died.

MR BERGER: We know that, Mr Mthembu, but what I'm asking you about - are your intentions when you went to Boipatong, when you went to Boipatong you say you went there to kill members of the self defence unit, you did not go there to kill anyone who was not a member of a self defence unit, you and your fellow attackers, correct?

MR MTHEMBU: Our aim was exactly as you put it, we were fighting the self defence unit members in the township and the death of other people, innocent people, was as a result of our fight against the STU in the township.

MR BERGER: Now here was a man running away from you, a middle aged man, in the street who you thought might be a member of a self defence unit, so you stabbed him for that reason, correct?

MR MTHEMBU: Yes, I stabbed him for that reason.

MR BERGER: Now you didn't know whether he had died or whether he was going to die as a result of that stab wound and you didn't know whether any of your fellow attackers were going to kill him, correct?

MR MTHEMBU: Yes that is correct.

MR BERGER: So my question to you is, if your goal was to kill members or suspected members of self defence units, why did you only stab this man once, why did you not finish him off?

MR MTHEMBU: You should understand that we went to Boipatong because we went their out of our own violation to attack. If an instruction for example comes that people should go and attack, it is an instruction and people had to choose whether to go there or not. You should understand that, sir, that if I went there out of my own violation to go and kill STU members, it is out of my own will.

CHAIRPERSON: What is the answer to the question? What counsel has put to you is that you told us that the purpose of going to Boipatong was to kill the STU's. What counsel wants to find out is why did you just stab this person once and not make sure that he was dead? Do you understand the question? Okay? Would you just answer the question?

MR MTHEMBU: Let me say, thinking that some of my members would either hit him with a kierrie or something, I don't know whether he survived thereafter or not.

CHAIRPERSON: The question what you're being asked is, you stabbed this man once but counsel wants to find out if you had gone there with the intention to kill the STU, the person that you stabbed, you believe he was a member of the STU and why did you only stab him once, why didn't you make sure that he was dead? Do you understand the question?

MR MTHEMBU: Yes I understand the question.

CHAIRPERSON: Please answer the question.

MR MTHEMBU: As I have explained, I am saying here I did not make sure that the person is dead because I knew that there were people in my company and I therefore would not take up the entire responsibility to myself knowing that there were other people.

MR BERGER: And you knew that the people in your company would ultimately kill this man, is that what you're saying?

MR MTHEMBU: I am not saying that they would finish him off but I am saying that if they happened to come across him, they would probably kill him or he may survive, escape and flee.

MR BERGER: Mr Mthembu, I don't know why you don't want to answer my question, but we'll move on.

Let's get to the next person that you - well, I'm sorry before we get to the next person that you stabbed, can you tell the Committee where you stabbed this first man, which street was it in?

MR MTHEMBU: It was near Umsimvuvu Street.

MR BERGER: Was it in Umsimvuvu Street?

MR MTHEMBU: It is actually nearer to Umsimvuvu Street, not in the street itself.

MR BERGER: Well could you give us the name please of the street in which you stabbed this man? You told the Committee earlier that you stabbed this man in the street. Now I want to know the name of that street in which you stabbed him.

MR MTHEMBU: I would not know the name of the street because I was just giving an example here, trying to explain this.

MR BERGER: Well Mr Mthembu, I'm not asking for examples, why did you mention Umsimvuvu Street?

MR MTHEMBU: I mentioned it because that's where we approached from.

MR BERGER: Yes, know if you know Umsimvuvu Street, take yourself back to that night, go down Umsimvuvu Street and tell me which street you then turned into where you found this man?

MR MTHEMBU: I wouldn't know which street it was because it was at night. As I mentioned Umsimvuvu I think it's also because you ...[intervention]

CHAIRPERSON: Does anything turn on this street where this first person was stabbed?

MR BERGER: Indeed Chairperson it does because we can then -well I can reveal this much - we can then correlate what this witness says against known facts to see whether or not he is telling the truth.

CHAIRPERSON: Perhaps if you had those facts it may save time to put those facts to the witness and see whether he admits them or disputes them because it would seem to me that from what he is saying, you know, he is unable to tell from what street this is. If you can as far as possible, I think it will save time.

MR BERGER: Chairperson, I will come to that, I just want to test this witness first.

Mr Mthembu, did your attacking party enter the township from Umsimvuvu Street?

MR MTHEMBU: Mr Berger, as I have explained, we entered at Umsimvuvu and because there were many of us, we did enter from Umsimvuvu and proceeded from there.

CHAIRPERSON: Can you indicate how many - apart from that entrance through Umsimvuvu Street, is there another entrance to the township?

MR MTHEMBU: Yes there is. I was just explaining about Umsimvuvu because if you compare the direction from which we came into Boipatong.

MR BERGER: No houses in Umsimvuvu Street were attacked, Mr Mthembu, do you dispute that?

MR MTHEMBU: I would not be able to comment on that because I was just explaining the direction from which we came.

MR BERGER: Let me move onto the next person that you stabbed, where was that?

MR MTHEMBU: I actually hit the second person with a knobkierrie.

MR BERGER: Is that the same person who you say came running out of the second house?

MR MTHEMBU: Yes.

MR BERGER: Did you attack any other people besides those two, the man that you stabbed and the man that you hit with a knobkierrie?

MR MTHEMBU: I did not do anything thereafter because there were police present and then we were also returning to our home.

MR BERGER: Mr Mthembu, then it appears to me that you only attacked two people in Boipatong that night, the man that you stabbed in the street and the man that you hit with a knobkierrie, is that correct?

MR MTHEMBU: Yes that is correct.

MR BERGER: So the maximum number of people you could have killed that night is one, isn't that correct, Mr Mthembu?

MR MTHEMBU: I would not admit to that.

MR BERGER: No, no, perhaps you didn't understand my question. At most you could only have killed one person that night, am I right?

MR MTHEMBU: I would not agree with that because I could have killed two, three people or no one at all, so I cannot agree with that maximum number.

MR BERGER: No, Mr Mthembu, it doesn't work like that. You see you told the Committee that you only attacked two people in Boipatong that night - the man who you stabbed near Umsimvuvu Street and the man who ran out of that second house, the man that you hit with a knobkierrie. Those were the only two people in the entire township that you attacked, that was your evidence?

MR MTHEMBU: Yes that is correct.

MR BERGER: Well then, the man with the knobkierrie you didn't kill because he continued to run away, correct?

MR MTHEMBU: Yes, what I do not know is even though he proceeded to flee I may not be able to say what eventually happened to him, but what I do know or what I do know is that people died in the township.

MR BERGER: Mr Mthembu, you keep saying that and I'm asking you to account for the people that you could have killed and you've told me - well you've told me that there are two people that you attacked. The one that you could have killed according to the evidence that you have given is the man that you stabbed. You couldn't have killed the man that you hit with a knobkierrie because he ran away, correct?

MR MTHEMBU: Yes that is correct.

MR BERGER: So do you agree with me now that according to what you've said you could only have killed one person that night?

MR MTHEMBU: I would agree because maybe the person I stabbed may have died.

MR BERGER: Correct, now my difficulty is this Mr Mthembu, one of the first questions that I asked you this morning was how many people did you kill in Boipatong that night and your answer was you couldn't tell me how many there were, correct?

MR MTHEMBU: That is correct.

MR BERGER: Why did you not say to me there's one person that I could have killed but only one that I could have killed, not more than one?

MR MTHEMBU: I could have said that but I could not say it because I can gather from your questions what you are asking but when I explain what I know you are twisting me around, trying to confuse me.

MR BERGER: Isn't the truth, Mr Mthembu ...[intervention]

CHAIRPERSON: Mr Mthembu, if counsel asks you a question which the Committee believes is unfair to you, the Committee will intervene. I want to assure you that if you believe you are being asked an unfair question we will intervene, do you understand that?

MR MTHEMBU: Yes.

CHAIRPERSON: What is your answer to the question?

MR MTHEMBU: I can say that I may have killed one person or even more.

CHAIRPERSON: Counsel asked you how many people you could have killed, your response was you cannot give him the number and you went further and you said you can't even say whether there were a hundred or more than a hundred and you added that because you were not counting, what you've just told us now indicates that you could have killed one person. This is now the person that you stabbed at the back. What counsel wants to find out is when he asked you how many people could you have killed because it's just one person, why didn't you tell him so? Do you understand the question?

MR MTHEMBU: Yes, I do understand. As far as I can tell I did not endeavour to respond to that question because it was asked - I now understand that he wanted to know how many people I killed. As I have explained, I stabbed one person so it is obvious or probable that I may have killed just one person.

MR BERGER: A few minutes ago you said "I may have killed one person or even more" now you say only one person. Where's the truth, Mr Mthembu?

MR MTHEMBU: As I've explained it as with regards to the person I stabbed and the other one was hit with a knobkierrie maybe he survived.

CHAIRPERSON: Let me ask you this - as far as you can recall how many people did you stab that evening?

MR MTHEMBU: I remember this one person that I've mentioned.

MR BERGER: Mr Mthembu, you see, is it not the truth that you killed many people that night including women and children.

MR MTHEMBU: No, I did not.

MR BERGER: And that there's no way in which you can say that the vast majority of the people that were killed were members of STU's and that's why you are now conveniently cutting them out of the picture, that's now why you say it was only one man, isn't that right?

MR MTHEMBU: No, it is not so.

MR BERGER: You stand by your evidence that you only stabbed one person that night?

MR MTHEMBU: Yes that is true.

MR BERGER: Did you see any of your comrades killing or attacking people that night?

MR MTHEMBU: Yes, I did see the ones who were close to me but there were some with who I couldn't very well see.

MR BERGER: Could you name the people who were close to you, Mr Mthembu?

MR MTHEMBU: The people who were close to me were Themba Mabode and Mr Tjonjo.

MR BERGER: Is this Mr Damara Tjonjo?

MR MTHEMBU: Yes that is correct.

MR BERGER: And who else was close to you?

MR MTHEMBU: As I've explained it was Themba Mabode as well.

MR BERGER: In the thirty minutes that you were in the township, those were the only two people that you saw?

MR MTHEMBU: I am only explaining about the people who were close to me. It was difficult for me to see the rest because they were far.

MR BERGER: Did you see Mr Themba Mabode killing people?

MR MTHEMBU: Yes I did.

MR BERGER: And did you see Mr Tjonjo killing or attacking people?

MR MTHEMBU: Yes I did because they were close to me.

MR BERGER: And did you see anyone else killing or attacking people?

MR MTHEMBU: No.

MR BERGER: Is it just coincidental that the two people who you named are both deceased?

MR MTHEMBU: Can you please repeat the question?

MR BERGER: Is it just coincidental that the two people, Mabode and Tjonjo that you named are both deceased?

MR MTHEMBU: They are both deceased.

MR BERGER: And you can't identify a single person who is alive, is that correct?

MR MTHEMBU: Identify him where?

MR BERGER: As somebody who was attacking or killing a resident of Boipatong?

CHAIRPERSON: I think, Mr Berger, perhaps the word should be attacking because killing is a process, you may attack a person and he may not ...[inaudible] but he might die later. What you're being asked here is that apart from the two persons, Damara Tjonjo and Themba Mabode that you say you saw attacking people, you did not see any other person from your group who is at least alive attacking people in Boipatong?

MR MTHEMBU: As I explained, it was not easy for me to see other people from my group. I am mentioning people who were close to me not because I'm only mentioning these people because they are deceased.

ADV. SIGODI: Through you, Mr Chairperson. Mr Mthembu, are you afraid to speak whatever you want to speak or do you fear mentioning any person who might be still alive whom you saw attacking?

MR MTHEMBU: I am not afraid of anyone. I am free to speak.

ADV. SIGODI: Thank you Mr Chairperson.

MR BERGER: Mr Mthembu, can you name anybody in your group who was there that night but you did not actually see carrying out an attack?

MR MTHEMBU: I can say that people like Buthelezi and somebody like Khanyile and Umsani were present when we went to attack.

MR BERGER: The third name that you mentioned was who?

MR MTHEMBU: Umsani.

MR BERGER: The Buthelezi that you're talking about is that Qambelani Buthelezi?

MR MTHEMBU: Yes that is so.

MR BERGER: The Khanyile that you're talking about is that Vincent Khanyile?

MR MTHEMBU: Yes, that is so.

MR BERGER: Umsani, who is Umsani, is he an applicant?

MR MTHEMBU: No, he is not present here.

MR BERGER: What are his full names?

MR MTHEMBU: Umsani. I do not know his full names, I only know his surname.

MR BERGER: Was he an accused at the trial?

MR MTHEMBU: Yes.

MR BERGER: And where is he now?

MR MTHEMBU: He is not in custody.

MR BERGER: Where is he now?

MR MTHEMBU: I would not know where he is at the present time because I am in prison. It is very difficult for me to actually specify where he is.

MR BERGER: Mr Themba Mabode, how was he armed?

MR MTHEMBU: If I remember correctly, I think he had a gun.

MR BERGER: And Mr Tjonjo, how was he armed?

MR MTHEMBU: He also had a gun.

MR BERGER: And both of them you witnessed shooting at people?

MR MTHEMBU: I did not actually see them shooting at people but it could be that did shoot at them but I cannot say that I specifically saw them do it.

MR BERGER: You never saw either of them shooting at anybody?

MR MTHEMBU: No.

MR BERGER: Were they both armed with AK47's?

MR MTHEMBU: I think Mr Tjonjo had an AK47, Themba had a smaller gun.

MR BERGER: Did either of them have any other weapons, spears, pangas, knopkierries?

MR MTHEMBU: I think they did not have traditional weapons.

MR BERGER: So what did they do in your presence which told you that they were attacking people?

MR MTHEMBU: As far as I can tell they were shooting at the people that they - at the people that they met but I cannot account for every minute.

MR BERGER: You never saw them shooting, how do you know they were shooting?

MR MTHEMBU: I say that because they had guns.

CHAIRPERSON: Well, are you assuming that because they had firearms they must have used these arms?

MR MTHEMBU: Yes, that's what I mean.

MR BERGER: How was Mr Umsani armed?

MR MTHEMBU: I don't know what gun he had.

MR BERGER: You don't know what type of gun he had?

MR MTHEMBU: Yes that is so.

MR BERGER: Was it a small gun or a large gun?

MR MTHEMBU: I cannot say whether he had a gun or a traditional weapon.

CHAIRPERSON: Mr Berger, we would be adjourning at about one o'clock so when it comes to a convenient point to interrupt your cross-examination, would you indicate so that we can take the adjournment?

MR BERGER: Chairperson, it would be convenient now because I was going to start something new.

CHAIRPERSON: Very well, we will take the lunch adjournment and we will return at two o'clock.

COMMITTEE ADJOURNS

CHAIRPERSON: Mr Mthembu, may I remind you that you are still under oath?

VICTOR MTHANDENI MTHEMBU: (s.u.o.)

CROSS-EXAMINATION BY MR BERGER: (Continues)

Thank you Chairperson, before I continue with the cross-examination can I just bring it to the attention of the Committee that there are a number of other people who have come forward now to say that they too require representation and we've made it clear that it's only people who were injured or whose family members that were killed will be entitled to be represented if we understand the position correctly. People whose houses were damaged are not entitled to be represented for the purposes of this hearing, is that correct Chairperson?

CHAIRPERSON: No, no, no, they are victims as well because the incidents involve not only murders, it also involved attempted murder and malicious injury to properties I understand are the position so that they will be entitled to legal representation.

MR BERGER: Even those people whose homes were damaged but did not suffer any personal injury or death?

CHAIRPERSON: Yes indeed, they are victims nevertheless to the extend that they suffered damage to their properties.

MR BERGER: Well in that case then Chairperson there are many, many more families who then require representations. If it pleases the Committee, we would be prepared to represent them as long as they all lodged their names with Ms Cambanis then we can take it further from there?

CHAIRPERSON: Very well. Mr Berger informs the Committee that then there will be persons who suffered damages to their properties as a result of the incidents that occurred in Boipatong. These persons are indeed victims and to the extend that then they wanted to be legally represented, they must contact Ms Cambanis or Mr Berger so as to be represented.

Yes Mr Berger?

MR BERGER: Thank you Chairperson.

Mr Mthembu, I'm going to try again to get clarity on the street where you say you attacked people. Now, you will recall that before lunch you said that it was somewhere near Umsimvuvu Street, you recall that?

MR MTHEMBU: Yes I do recall that.

MR BERGER: I don't know how well you know Boipatong, do you know the streets well?

MR MTHEMBU: I can explain that I do not know Boipatong very well because I was not a resident there and I was not a resident here, I was just working here at the Vaal Triangle.

MR BERGER: Or you had no friends or family in Boipatong, you never visited the area, you had no need to go into Boipatong, is that right?

MR MTHEMBU: Yes that is correct.

MR BERGER: How then do you know the name Umsimvuvu Street?

MR MTHEMBU: The street names are written, for example I would see the names of the street on my way to the taxis.

MR BERGER: Alright now, you would know then, I presume, that Umsimvuvu Street cuts the township into half as it proceeds towards Slovo Park?

MR MTHEMBU: I don't know about that.

MR BERGER: If you're coming along - do you know where Slovo Park is?

MR MTHEMBU: No, I don't know.

MR BERGER: Have you ever heard about Slovo Park?

MR MTHEMBU: Yes, I did here about Slovo Park and they did mention the name in court.

MR BERGER: Have you ever been to Slovo Park?

MR MTHEMBU: No, I don't recall going to Slovo Park because I could not go to a place that I did not know.

MR BERGER: You don't know about an informal settlement on the Eastern side of Boipatong?

CHAIRPERSON: What is the name of that?

MR BERGER: It's Slovo Park, Chairperson, but I'm trying to just ask ...[intervention]

CHAIRPERSON: But he said that he heard about that when he was in court.

MR BERGER: Yes. My question is slightly different, perhaps I should rephrase it.

Were you aware of an informal settlement on the Eastern side of Boipatong?

MR MTHEMBU: As I have explain, Mr Berger, I did not have any knowledge about the place, I only heard about the name Slovo Park during the court proceedings.

MR BERGER: Right, you said that you entered Boipatong in Umsimvuvu Street?

MR MTHEMBU: Yes, that is correct.

MR BERGER: You were together with Mr Tjonjo and Mr Mabote, correct?

MR MTHEMBU: Yes that is correct.

MR BERGER: Was it just the three of you or was there a whole group of you?

MR MTHEMBU: You asked me a question as to which people were close to me and I gave you the names of these two people. There were many others but then I cannot recall their names. It's been a long time since this thing happened and this thing did not happen as a result of the fact that perhaps the residents of the hostel knew each other.

MR BERGER: ...[inaudible] group of attackers moving into Boipatong along Umsimvuvu Street?

MR MTHEMBU: Yes that is correct.

MR BERGER: Now, if you move down Umsimvuvu Street you will come to a park in the centre of the township, do you recall that?

MR MTHEMBU: I only get this from you, I don't know about that.

MR BERGER: Do you remember passing a church in Umsimvuvu Street?

MR MTHEMBU: No, I cannot recall that, it was dark and I could not see a church.

MR BERGER: Well I can tell you there's a light right there but let me explain to you what happens. Umsimvuvu Street moves eastwards then there's a kink in the street and when it continues, that street becomes Bapedi Street, do you have any comment?

MR MTHEMBU: No, I cannot say a thing, I'm just listening to you here.

MR BERGER: Now, Bapedi Street, one could say is near Umsimvuvu Street as you tried to describe earlier this morning?

MR MTHEMBU: I don't know about that, I don't know whether the street you're talking about is nearer to Umsimvuvu, I have no comment.

MR BERGER: I can also tell you that it was in Bapedi Street that many, many houses were attacked.

MR MTHEMBU: Yes, I'm listening.

MR BERGER: What I want to ask you is, you spoke about a man who ran out of a house, the second house you referred to and that you hit him with a knobkierrie, do you remember that man?

MR MTHEMBU: Yes, I do recall the person.

MR BERGER: And you said that he went to hide behind a car, do you recall that?

MR MTHEMBU: Yes I do recall that.

MR BERGER: What type of car was it?

MR MTHEMBU: It was dark, I cannot explain.

MR BRINK: I must protest this line of cross-examination, it seems to be taking us nowhere, with respect. This is not a retrial, this is an Amnesty Hearing.

MR BERGER: Chairperson, if Mr Brink will just give me a few more questions, he will see that I'm not attempting to retrial this matter at all, I'm just attempting to locate a particular incident.

MR BRINK: Mr Chairman, if the applicant, in all fairness to him doesn't know Boipatong, he doesn't know the streets, doesn't know the area, doesn't know Polo Park and so on, is there any point in continuing with this line of cross-examination?

MR BERGER: Slovo Park.

CHAIRPERSON: Mr Berger?

MR BERGER: Mr Chairperson, the whole point with respect of cross-examination is not to put one's name proposition up first and then to get the witness then to deny it and then to back track, I'm trying to get to a point where I can put something to this witness and I just need the witness to clarify certain surrounding issues.

CHAIRPERSON: Well, we understand that you have the right to cross-examine the witness but I think at some point we've got to get to the issues that are before us so that we do not prolong these hearing unnecessarily. This witness, from what he says, is that he doesn't know Boipatong. Perhaps it may save time if you just put your version of the description of the area to him so that we can get to the point.

MR BERGER: Very well, Chairperson.

CHAIRPERSON: We do not want to unduly restrict your cross-examination, we understand you have to lay the foundation but there has to be a limit at some point.

MR BERGER: Indeed, Chairperson.

MS PRETORIUS: Chairperson and I would like just to say that this question that was put to the applicant is not correct. He said in the second house he - the man came out of the gate, he hit him with a knobkierrie and the man fled. He didn't say he hid behind the car, it was the second, the man that he stabbed that hid behind the car if I'm not mistaken.

MR LAX: The man that he stabbed was hiding behind a car, the man that got hit with a knobkierrie simply ran away, that was the evidence as I recall it.

CHAIRPERSON: Thank you very much.

MR BERGER: Chairperson, might I just say that all the people who we represent - one of the issues that really troubled them is that they would like to know who killed their loved ones and one of the issues before this Committee is the issue of full disclosure and it's going to be our contention, in fact I could make a submission already on the basis of the evidence that we've already heard that this witness is not being candid with this Committee. But there's one particular incident which occurred which I want to put to this witness in a few questions time, will illustrate that he is not candid about the people that he killed or the people that he was a witness to being killed and that is, I would submit, goes to the issue of full disclosure.

CHAIRPERSON: Well, you're perfectly entitled to do that, all we are saying is that when you have to lay the foundation, you cannot or you should not lay foundation indefinitely, at some point you've got to get to the point. If there is an incident you want to put to the witness, by all means do so.

MR BERGER: I'll do that.

CHAIRPERSON: Yes, what do you say about the fact that what you put to the witness is not accurate?

MR BERGER: Yes, I'm going to correct that.

CHAIRPERSON: Yes please.

MR BERGER: You say that you can't say what the colour of the car was?

MR MTHEMBU: Yes that is correct.

MR BERGER: You can't say what type of car it was either I assume.

MR MTHEMBU: Yes that is correct.

MR BERGER: I'm going to refer you to an incident that took place at 625 Bapedi Street. The second house from the church and very near Umsimvuvu Street - in that house and not in the street but in the yard there was a yellow Colt parked in that yard. The owner of the house is a Mr Philip Umsevi. He was hit with a knobkierrie and he went to hide under that car. That was the first house that was attacked in Bapedi Street. His son ...[intervention]

CHAIRPERSON: That is now 625?

MR BERGER: 625, I should say the first house where people were attacked, but the house before that was damaged but nobody was injured and it's the second house from the church and the church is at the corner of Bapedi as it kinks into Umsimvuvu and as I've told you, Mr Philip Umsevi was attacked by attacked by a person with a knobkierrie. His son, Jabulani, was stabbed as he was trying to escape through the back window of the house. His wife, Violet, was killed, she was shot and the bullet that hit her left a big hole, probably one from an AK47. His son, Michael, seventeen years of age was also shot, lying next to his mother. Mr Philip Msevi has a brother, Themba Msevi. Mr Themba Msevi's daughter, Ronica, was living in that house with her uncle and cousin. She was fifteen years old. She was stabbed in the chest with an assegai which went right through her back. Philip Msevi's son, Sibusiso, was nine years old. He was stabbed by a spear in the chest and he died later in hospital and the two twins that you were talking about, Mr Mthembu, were in that house, not in the first house. They were in that house where all those people were killed except they're not twins, a little boy and a little girl who could be mistaken for twins and you didn't put them under any bed, they hid under the bed and if you want, Mr Mthembu, I have got photographs here from the criminal trial. For the record, it's from Volume 34 of the appeal record, page 3918 and 3919, 3920, 3921 which shows the people who were killed - a young boy lying in his underpants in bed, a woman lying on the kitchen floor, another deceased lying in bed and I'm putting it to you, Mr Mthembu, that you were involved in this incident and you have attempted to sanitise your involvement by saying that no one was killed in that house and only one person was stabbed, one person was hit on the head whilst running away. Do you wish to comment?

MS PRETORIUS: May I just object here? The answers was, it was not at the same house. The first house was the house where he hit the person with a knobkierrie, the second house was where he stabbed the person, Mr Chairperson, unless I'm wrong then I apologise, but I'm quite sure that was the evidence.

MR BERGER: No.

MS PRETORIUS: Mr Chairman, the evidence was "The first house I went into, yes that was the first I went into, I didn't see anybody else in that house. Nobody was killed." That was after he told about the children, thought the adults had already fled and then he said "I did not stab anybody in the second house, he was fleeing, I hit him with a knobkierrie, he kept on fleeing, he was a young man, he fled."

CHAIRPERSON: That's how I recall the evidence.

MR BERGER: The only difference, Mrs Pretorius, is that the person wasn't stabbed in the house, he was stabbed in the street, so I just wanted to clarify that aspect."

MS PRETORIUS: I'm sorry, no, the person that person that he stabbed was in the street but that was not at the first house where he hit the person with a knobkierrie.

MR BERGER: No, the witness said that the person who he hit with a knobkierrie ran out of the second house and that he was not a young man, he said he was a middle aged man. Mr Philip Umsevi had a son of twenty one, he was a middle aged man and what I'm putting to Mr Mthembu is that he's taken the two houses, he's tried to separate it into two houses and what I'm putting to him is that all of that happened in one house, there was a man that was hit with a knobkierrie - he's the man who went to hide behind a car although he says it was a man who he stabbed. The twins were in that house and four people were killed in that second house by being stabbed and by being shot and what I'm putting to this witness is that he's tried to separate things out and sanitise them when in fact those incidents happened in that very house, 625 Bapedi Street.

CHAIRPERSON: You've heard the question have you? You've heard what counsel has put to you?

MR MTHEMBU: Yes I do understand.

MR MTHEMBU: I would like to say here that he gave me a number here, a number that pertains to the incident he is talking about. I did not give him the number and simply because I don't know the numbers of the area and you Mr Berger are trying to drive me to places that I never went to. I would like to say that there's nothing I can say about that because Mr Berger is telling me what I did about what particular house, what number and before we went to lunch he said nobody got injured at Umsivuvu Street.

MR BERGER: I tried to explain to you that Umsimvuvu Street, there's a kink in Umsimvuvu Street and when you come out of that kink, Umsimvuvu becomes Bapedi. Bapedi is near Umsimvuvu and you put yourself in a street, you didn't know the name of the street which you said was near to Umsimvuvu. So that's the first point.

You spoke about the first house and the second house. I'm telling you that this house is the second house from the corner, the church being on the corner. You spoke about two twins, I'm telling you that in this house, 65 Bapedi, there were two young small children who could be mistaken for twins who did hide under a bed. In this house, the owner of the house ran outside, he was hit with a knobkierrie. You hit someone with a knobkierrie. Now talking all of that into account, I'm saying to you that the house you are talking about is 625 Bapedi and in that house four people were killed, not as you would have it - none being killed, that's what I'm putting to you.

MR MTHEMBU: I understand you perfectly. I spoke of one person and not four people.

MR BERGER: That is why I'm saying to you you're not telling the truth.

MR MTHEMBU: That is what you say but I am only talking about what I know. The twins that I'm referring to, although I cannot be certain whether they were indeed twins or not, but I've explained what happened in that particular house.

MR BERGER: Why did you not take a gun to Boipatong that night, Mr Mthembu?

MR MTHEMBU: I have my own personal guns which I would not take and go and use in the attack because I know of the regulations regarding this.

MR BERGER: Please explain

MR MTHEMBU: What I can explain is that I would not have taken my licensed firearm to use against ANC members in Boipatong because I obviously would not be knowing what the gun was for, I would not understand what the guns would be used for.

MR BERGER: Mr Mthembu, I don't understand your answer at all, you don't know what the gun would be used for.

CHAIRPERSON: What he is saying is that his firearms were licensed and he did not want to use those licensed firearms in going to go and kill the ANC people because that would be against the regulations, that's what he wanted to list.

MR MTHEMBU: Thank you, Chairperson.

MR BERGER: Against the regulations for getting a gun?

MR MTHEMBU: Yes.

MR BERGER: But because there are no regulations when get a spear - you can use it to kill people?

MR MTHEMBU: I was responding to your previous question, not necessarily concurring with what you have just said now.

MR BERGER: Do you know that at the time there were regulations in effect which prohibited you from using a spear to kill people?

MR MTHEMBU: Traditionally, I know that a spear is a traditional weapon, that we Amazulu carry when we go out to fight with other people. We don't need a licence to carry this.

MR BERGER: I still don't understand your answer but I'll leave it there for the time being. How many guns did you have licensed to you at the time?

MR MTHEMBU: I had two.

MR BERGER: You had a 9 mm Luger, is that correct?

MR MTHEMBU: Yes.

MR BERGER: Which you got in January of 1991?

MR MTHEMBU: Yes.

MR BERGER: Another 9 mm Luger which you got in March of 1991, correct?

MR MTHEMBU: Yes.

MR BERGER: And you had a third gun as well, did you not?

A CZ83?

MR MTHEMBU: That is so but I think a mistake was committed somewhere, that mistake was committed in Pretoria, I think they corrected it. The serial numbers for the first gun did not correspond with the serial numbers of the gun itself but I actually corrected this later. I did not have three licenses as you put it but only two.

MR BERGER: On the 1st June 1992 you were issued with a third gun, a CZ83?

MR MTHEMBU: Yes that is correct.

MR BERGER: I want to ask you Mr Mthembu about the structures of the IFP in Boipatong. Who were the leaders of the IFP in Boipatong in June 1992?

MR MTHEMBU: I do not know or I don't have any knowledge about Boipatong, maybe if you put it in a more clearer way I may understand.

MR BERGER: You were a leader of the IFP in Kwamadala were you not?

MR MTHEMBU: No.

CHAIRPERSON: Chairperson, but the question was in Boipatong, I think that is what confused the witness. The question was "who were the leaders of the IFP in Boipatong."

CHAIRPERSON: Yes, I think the witness has answered that by saying that he doesn't know who was the leader in Boipatong. The question now is - relates to Kwamadala Hospital or Hostel -then it is? Yes?

MR BERGER: Precisely, Chairperson.

CHAIRPERSON: Do you understand that now, you're being asked by - not about Boipatong but about Kwamadala Hostel?

MR MTHEMBU: Yes, I understand.

MR BERGER: Now you say that you were not a leader of the IFP, you were not one of the leaders of the IFP in Kwamadala, correct?

CHAIRPERSON: Mr Berger, he said he was not the leader.

MR BERGER: Chairperson I said "Were you a leader".

CHAIRPERSON: Okay.

MR BERGER: Sir, you should understand that there's a difference between being a leader and a member, therefore you should put it to me clearly so that I understand what you mean to say.

CHAIRPERSON: And that is, "were you a leader of the IFP in Kwamadala Hostel"?

MR MTHEMBU: No, I was not.

MR BERGER: You were just a member, you were not a leader?

MR MTHEMBU: Yes, that is correct.

MR BERGER: You were the Vice-Chairperson of the IFP Youth League in Kwamadala, were you not?

MR MTHEMBU: That is correct.

MR BERGER: And you still say, Mr Mthembu, you still say you were just a member, not a leader?

MR MTHEMBU: I have just explained that I was a member.

That - the Vice-Chairmanship came later.

MR BERGER: What period do you think I was referring to when I asked were you a leader of the IFP in Kwamadala?

MR MTHEMBU: How could I have been a leader when I was a Vice-Chairperson and not the Chairman?

CHAIRPERSON: Mr Mthembu, the question that was asked of you is not that you were the leader, in other words you were the only person who was a leader, do you understand that?

MR MTHEMBU: Yes I understand.

CHAIRPERSON: But were you one of the leaders at Kwamadala Hostel?

MR MTHEMBU: In 1991 I was elected Chairperson.

MR BERGER: Chairperson of what Mr Mthembu?

MR MTHEMBU: In the Youth Committee.

MR BERGER: And in 1992 you were still Chairperson of the Youth Committee?

MR MTHEMBU: Yes.

MR BERGER: Well then why do you say you were not a leader, you were just a member?

MR MTHEMBU: You did not explain it clearly to me, now that the Honourable Judge explained it to me, I understand fully.

MR BERGER: What is it you did not understand the first time when I asked the question?

MR MTHEMBU: I did not understand your questioning about a leader, I think I understand leadership in a different way.

MR BERGER: Now that you agree that you were a leader of the IFP, I want to ask you who were the leaders of the IFP in Boipatong - I not saying Kwamadala, so that you don't misunderstand me this time, I'm saying the leaders of the IFP in Boipatong.

MR MTHEMBU: I have no knowledge about those persons.

MR BRINK: Did you have knowledge of IFP members or sympathisers in Boipatong?

MR MTHEMBU: I have no knowledge about that either.

MR BERGER: I want to read to you what Mr Themba Khosa, you know Mr Themba Khosa?

MR MTHEMBU: Yes I know him.

MR BERGER: What was his position at that time, June 1992?

MR MTHEMBU: Mr Berger, I would not know which position he held in that year because I did not really notice those kind of things because of my other responsibilities.

MR BERGER: What other responsibilities are you referring to?

MR MTHEMBU: I was an employee at ISCOR and therefore I concentrated on my work.

MR BERGER: Are you telling this Committee that you have no idea what position Mr Themba Khosa held at that time?

MR MTHEMBU: Yes, I do not know, I did not know.

MR BERGER: You don't know if he was the leader of the Youth Brigade or what, is that correct?

MR MTHEMBU: I do not know anything, I just know Themba Khosa to be member of the IFP.

MR BERGER: Not a leader?

MR MTHEMBU: I've already put it to you, that's how I knew it to be.

MR BERGER: And he was just a member, not a leader?

MR MTHEMBU: What else do you want me to say?

MR BERGER: I just want to make sure that that is your answer, that in June 1992 you knew Themba Khosa as a fellow member of the IFP, you did not know that he was a leader of the IFP?

MR MTHEMBU: Yes, that's how I know it.

MR BERGER: Mr Themba Khosa gave evidence at you trial, you remember that?

MR MTHEMBU: Yes I do.

MR BERGER: Volume 28, page 3229, line 7. First question to Mr Khosa: "Mr Khosa, is it correct that you are the Transvaal leader of the Inkatha Freedom Party's Youth Brigade, is that correct?" Answer: "That is correct." You never knew that, it was news to you?

MR MTHEMBU: I did not. I did not know about that, I was just concentrating on the case at the time.

CHAIRPERSON: What's being put to you is that at your trial Mr Themba Khosa testified that he was the leader of the IFP and the capacity described by counsel to you. What you are being asked is you did not know that?

MR MTHEMBU: No, I did not.

MR BERGER: The Youth Brigade and the Youth League of the IFP, that's the same body, am I right?

MR MTHEMBU: Please repeat the question?

MR BERGER: If one talks about the Youth Brigade or the Youth League, it's the same organisation that one is talking about, correct?

MR MTHEMBU: The youth, the young people in the organisation - I do not really understand what you mean by the Youth League.

MR BERGER: Well, Mr Mthembu, the word Youth League comes from your own Amnesty Application and I'm asking you whether the reference there to Youth League is the same as the Youth Brigade, it's the same organisation?

MR MTHEMBU: I cannot comment on that.

MR BERGER: Well, what I want to ask you is this - are you telling this Committee that you as a leader of the Youth League in Kwamadala, the Chairperson or the Vice-Chairperson of that Youth League, you did not know who your provincial leader was?

MR MTHEMBU: As a person elected into that position, I was not exactly involved in politics because I had a job.

MR BERGER: Mr Mthembu ....[intervention]

MR LAX: Mr Berger, sorry just for clarification purposes, the word league appears in the Amnesty Application but in the subsequent affidavits there's a reference to Youth Brigade. I think we can accept it's the same thing.

MR BERGER: Thank you, Mr Lax.

MR LAX: Maybe I could ask you, Mr Mthembu, in your hand-written application, you refer to the Inkatha Freedom Party's Youth League. In your affidavit, you refer to the Youth Brigade. Were you Chairperson of two different organisations or was it just the Youth Brigade and then we must accept that it might be a mistake in the hand-written one.

MR MTHEMBU: I was the Vice-Chairperson of the Youth in Kwamadala Hostel.

MR LAX: We must disregard the word Brigade or the word League as far as you're concerned?

MR MTHEMBU: I don't know, I cannot suggest what can be done about that.

CHAIRPERSON: Yes, Mr Berger?

MR BERGER: Thank you Chairperson.

Mr Mthembu, you told the Committee on Monday that you have read your Amnesty Application and you've read all the subsequent affidavits which are part of your Amnesty Application. Was that answer the truth?

MR MTHEMBU: Yes.

MR BERGER: On page one, paragraph 7b, you were asked to state the capacity in which you served in the organisation and your answer was "Inkatha Freedom Party, a member, Vice-Chairman IFP Youth League." At page 4 of the bundle, your very first affidavit, paragraph 3, you say "At the time I was the Vice-Chairman of the IFP Youth Brigade at the Kwamadala Hostel in Sebokeng. Now, in the one paper you talk about a Youth League, in the other document you talk about a Youth Brigade, it's really very simple Mr Mthembu, are you referring to the same organisation, it's the organisation for the Inkatha Youth?

MR MTHEMBU: Yes, it is the same organisation, the youth organisation of the IFP is Kwamadala Hostel.

MR BERGER: Now let's just clear this up, were you the Vice-Chairperson or the Chairperson?

MR MTHEMBU: I was the Vice-Chairperson.

MR BERGER: When you spoke about being the Chairperson, that was a mistake, you meant Vice-Chairperson?

MR MTHEMBU: Yes, it must have been a mistake.

MR BERGER: You were elected to that position in 1991 and you retained that same position in 1992 until after the massacre in Boipatong, correct?

MR MTHEMBU: That is correct.

MR BERGER: And when did you lose that position?

MR MTHEMBU: When I was arrested, that was when I realised I could no longer hold this position.

MR BERGER: That was in 1993, am I correct?

MR MTHEMBU: Yes, that is correct.

MR BERGER: I put it to that you are lying when you say that you did not know that Themba Khosa was your provincial leader.

MR MTHEMBU: I would not lie to you, I am an adult person.

MR BERGER: Mr Mthembu, you lied already to a judge of the High Court, I'm sure lying to me wont make any difference to you and what I'm putting to you is, the reason you are lying is because you don't want me to examine the political structures of the IFP, am I correct?

MR MTHEMBU: You were correct when you said I lied to the judge, yes I did lie.

MR BERGER: Mr Mthembu, let me move on from Mr Themba Khosa's position and let me read to you what he said at page 3230, it's the same volume, volume 28.

MR LAX: Sorry, Mr Berger, please repeat that page reference please?

MR BERGER: It's page 3230, from line 14. The question was: "You were also, sometime after 17 June, on the night of the massacre, you were quoted in a paper as having said that some of the deceased in Boipatong were known to have been IFP members. Can you perhaps elaborate on that?" and Mr Khosa's answer was: "We had already received information from some of the leaders in the residential area that some of the deceased were IFP members or sympathisers of this organisation."

Let me for completeness, read to you what is given at page 3244 of Mr Themba Khosa's evidence, line 9, this is in Afrikaans:

"Mr Khosa, who of the deceased in Boipatong were supporters of IFP?"

"I do not know them by names, it is only the leaders of the residents who could possibly know."

Question: "Who told you that the victims in Boipatong were members of the IFP."

"It was the leaders. It came out in the meeting which we attended at Kwamadala Hostel."

"In other words, your information comes from the inhabitants of Kwamadala Hostel."

"Yes as well as the people who were outside, for an example at the office."

Now Mr Mthembu, there's a lot packed into those answers but let me start at the beginning. Are you telling the Committee that you do not know who the leaders of the IFP in Boipatong were, the leaders that Mr Themba Khosa refers to?

MR MTHEMBU: No, I have no knowledge about that.

MR BERGER: How is it possible, that you as a leader of the IFP in the hostel, are not aware of leaders of the IFP in a township so close to that very hostel?

MR MTHEMBU: How could I be sympathetic to these people, they are the ones who were attacking us.

MR BERGER: Sorry, Mr Interpreter, could you interpret the whole answer again, there was some stuff that you left out there that even I ..

MR MTHEMBU: Chairperson, I am saying I would not have known that there were people in Boipatong, people who were sympathetic to us at the time when we were being attacked by the people from Boipatong. It was therefore not easy for me to know about IFP members in Boipatong.

MR BERGER: One of your co-accused and co-applicants, Mr Rubin Tebogo Magubane gave evidence at his trial, at your trial, page 3009 of the record, that at the time of the trial his parents were still living in Boipatong so surely there were still sympathisers of the IFP living in Boipatong, even at the time of your trial.

MS PRETORIUS: Mr Chairperson, I believe that this question has been answered. The applicant said it was not easy to know who the people were, so he does not deny that there were sympathisers. It's my submission that this question has been asked and answered?

MR BERGER: Is that correct, Mr Mthembu, you do not deny that there were IFP members and sympathisers living in Boipatong at the time of the attack?

MR MTHEMBU: I don't know how to explain this for you to understand what I am saying here, Mr Berger, because I am saying to you - how would I have known that there people sympathising with us from the township at the time when our people were being burned. I don't know whether you don't understand this.

MS PRETORIUS: Mr Chairperson, I don't think that's a fair answer, I cannot see how the applicant can know how Mr Themba Khosa would have known.

CHAIRPERSON: What do you say to that, Mr Berger?

MR BERGER: Let me rephrase the question then, Chairperson.

CHAIRPERSON: Mr Berger, please let's make some progress, I mean you're asking this witness to tell us how Mr Themba Khosa had that knowledge.

MR BERGER: I take that point, Chairperson.

Did you know that it was alleged that some of the deceased in Boipatong were IFP members or sympathisers?

MR MTHEMBU: No, I have no knowledge to that effect.

MR BERGER: We know that you were at the meeting in the hostel which Themba Khosa addressed, correct?

MR MTHEMBU: Yes that is correct.

MR BERGER: And Themba Khosa says at page 3244 that at that meeting it was discussed that some of the deceased in Boipatong were IFP supporters, now was that discussed at the meeting or was it not discussed at the meeting?

MR MTHEMBU: As far as I see it that question is very, very good for Themba Khosa.

MR BERGER: Are you saying that it was not discussed at the meeting and that Mr Themba Khosa is not telling the truth at that page 3244?

MR MTHEMBU: I don't know whether he is telling the truth or not, that is his problem, I'm not involved in that.

MR BERGER: Mr Mthembu, you were at that meeting, either ...[intervention]

CHAIRPERSON: Mr Berger, the meeting that you're referring to, when was it held?

MR BERGER: It's the meeting addressed by Mr Themba Khosa, I believe it was on Friday 19th June 1992 and ...[intervention]

CHAIRPERSON: Was that the first meeting that he's alleged to have addressed subsequent to the attack on Boipatong?

MR BERGER: Correct, yes.

CHAIRPERSON: Mr Mthembu, listen very carefully. There's a meeting that is supposed to have been addressed by Mr Themba Khosa subsequent to the attack in Boipatong, do you understand that?

MR MTHEMBU: Yes, I do understand.

CHAIRPERSON: At that meeting - what was the date of the meeting again, the meeting which was held after the attack on Boipatong?

MR MTHEMBU: Yes, I was present at the meeting but I did not hear anything that is being said here about Mr Berger.

MR BERGER: That means that you did not hear the allegation that some of the deceased were IFP supporters?

MR MTHEMBU: No, I did not hear anything about that.

MR BERGER: Let's leave then the leaders of the IFP in Boipatong and let's turn if we could to the leaders of the IFP in Kwamadala. Can you please tell the Committee what were the structures, the leadership structures, in Kwamadala at the time of the massacre June 1992?

MR MTHEMBU: First of all I would say there was a Senior Committee and the youth and there were also people who had fled to the hostel to seek refuge after their houses were burned down.

MR BERGER: I talking about committees that had been set up at Kwamadala Hostel, there was the Senior Committee, there was the Youth Committee, were there any other committees?

MR MTHEMBU: No, I don't know about any other committee.

MR BERGER: And who was on the Senior Committee?

MR MTHEMBU: What I can say here is that I still remember Mr Khumalo and Mr Zulu, these are the people who were part of the Senior Committee. It was not easy for me to know others because there were many people there and I did not know some of them.

MR BERGER: Who was the leader of the Senior Committee, was that Prince Vanana Zulu?

MR MTHEMBU: Yes that is correct.

MR BERGER: And Mr Khumalo, what was his first name?

MR MTHEMBU: I don't know his first name, I just know his surname - Mr Khumalo.

MR BERGER: The Youth Committee - who was the chairperson?

MR MTHEMBU: The chairperson was Mr Buthelezi.

MR BERGER: That is the first applicant, Qambelani Buthelezi?

MR MTHEMBU: Yes, that is correct.

MR BERGER: The Vice-Chairperson was you?

MR MTHEMBU: As you have just explained.

MR BERGER: And who else was on the Committee?

He has already said, Chairperson, he does not know who was on the Senior Committee - on the Youth Committee, who else was a member of the Youth Committee?

MR MTHEMBU: There were several of them having come from different places, I cannot say exactly who they were - it was just a youth thing.

MR BERGER: I'm sure you can give the names of the fellow members of your Youth Committee, particularly since you were one of the leaders of that committee?

MR MTHEMBU: It is very difficult for me to know the names because I was not concentrating on politics, I had a job to take care of and therefore the one person that I knew as very close to me was Buthelezi himself as chairperson.

CHAIRPERSON: Qambelani Buthelezi was the chairperson of the Youth Committee?

MR MTHEMBU: Yes that is correct.

CHAIRPERSON: As chairperson of that committee?

MR MTHEMBU: Yes that is correct. We had the youth from Kwamadala Hostel, the ones that I still remember, there was another boy called Zwele, his name is Tree, I cannot remember the others, there were many of them, I don't have all of their names in my memory. There were many of them who were there. I don't know whether you're referring to the number of the youth as members or the number of the committee members.

CHAIRPERSON: I want the number of the committee members.

MR MTHEMBU: There was chairperson, his deputy and the secretary.

CHAIRPERSON: Were there any other portfolios?

MR MTHEMBU: No.

CHAIRPERSON: ...[inaudible] consisting of three persons?

There's the chairperson, the vice-chairperson and then the secretary?

MR MTHEMBU: Yes that is correct.

CHAIRPERSON: Who was the secretary?

MR MTHEMBU: Tree was the secretary.

MR BERGER: If those were the only three members of the committee, why when I asked you who were the other members of the committee did you say that you couldn't remember?

MR MTHEMBU: As I have explained here, Chairperson, I found it confusing as to exactly what you wanted, I was not exactly sure what you wanted. Now I understand seeing that the judge has just explained.

MR BERGER: It confused you when I asked who were the members of the committee?

MR MTHEMBU: Yes, I got confused.

CHAIRPERSON: What is saying is that, as I understand his evidence, is that he was confused whether reference was being made to the committee or to the youth as a whole.

MR BERGER: Mr Mthembu, again I must put it to you that you are deliberately shielding people and I can think of two reasons why you might be doing that. The first is you might be trying to protect them because they haven't applied for amnesty or the other is that you are afraid to mention certain names because that might put you in danger, am I right?

MR MTHEMBU: It is not like that, I am not afraid this moment. When I applied for amnesty, I knew that it would not help me really to hide peoples names, hold them back, because my parents are suffering, nobody is taking care of them now.

MR BERGER: How often did the Youth Committee meet?

MR MTHEMBU: We would meet three times a month perhaps.

MR BERGER: To discuss what?

MR MTHEMBU: We would discuss things such as encouraging other people to come and join our organisation because other people only had bad information about our organisation. We wanted people to join us as well as they do other organisations like the ANC etc.

MR BERGER: And were you part of this recruitment drive?

MR MTHEMBU: Yes, I was part of the recruitment drive.

MR BERGER: Did you liaise with other committees of the IFP Youth in other hostels or other townships. Was there any communication between you?

MR MTHEMBU: Yes, we did try to liaise with other committees but we could not because we were chased away by the police.

MR BERGER: Besides the Senior Committee and the Youth Committee, there's another structure of the IFP and Kwamadala you've forgotten to mention, Mr Mthembu and those were the hit squads.

CHAIRPERSON: Mr Berger, it's just drawn to my attention that there's a last portion of the evidence of the witness which was not interpreted, namely that the police did not want us in Boipatong, is that what you said?

MR MTHEMBU: Yes that is correct.

CHAIRPERSON: Yes, thank you Mr Berger.

MR BERGER: Said that the police did not want you in Boipatong?

MR MTHEMBU: Yes, that is what I am explaining because when we arrived at Boipatong trying to recruit the youth, the police came in large numbers and drove us away until we arrived at Madala Hostel.

MR BERGER: Did you report this to other structures of the IFP in the Transvaal as it then was?

MR MTHEMBU: We reported to the people with whom we were at Kwamadala Hostel, indicating to them that the police did not want us in the township.

MR BERGER: Did you say to them would you be communicating with the leaders on the Senior Committee, Prince Zulu and Mr Khumalo?

MR MTHEMBU: Yes that is correct.

MR BERGER: And you expected them to take that up with perhaps other structures of the IFP in the province or maybe even in Ulundi, would that be correct?

MR MTHEMBU: I had just reported this to them and it would be up to them what next step had to be taken.

MR BERGER: The third structure in the hostel, the hit squads, do you recall that?

MR MTHEMBU: No, I do not recall that.

MR BERGER: Were there any hit squads at Kwamadala Hostel?

MR MTHEMBU: I've never seen them.

MR BERGER: So if I asked you who was the leader of the hit squads at Kwamadala, you wouldn't be able to say, is that correct?

MR MTHEMBU: Yes that is correct.

MR BERGER: Let me read to you what you said at page 5, paragraph 6 of your first affidavit. You said Damara Tjonjo was the leader of the hit squads from Msinga?

MR MTHEMBU: Here we are talking about the self protection at Madala Hostel, not hit squads. The advocate knows this fully well as well.

MR BERGER: Mr Mthembu, you confirmed on Monday that you were happy with the contents of all your affidavits, now this is one of your affidavits. Your words are that he was the leader of the hit squads from Msinga and you go on to say he was the leader of the hit squad in the Kwamadala Hostel as well. I do not agree with this word hit squads. If this is contained in the affidavit it must have been a computer error.

MR BERGER: No, it's no computer error, let me read to you -before I get there - well let me read to you from page 6 paragraph 8 the second part of that paragraph: "I also saw many weapons during the police operation at the hostel. When they were attacked, the South African Police came to search the hostel and found a lot of firearms which they confiscated. No weapons were left which resulted in Vanana Zulu telling us that everybody had to contribute so that more weapons could be bought. We had to pay R800 per person who were working at the time for these weapons. There were about 200 - 400 people working at that stage and everybody had to pay otherwise they would have been killed because we were all afraid of the Msinga contingent. The money was handed to the people from Msinga but I cannot remember seeing the weapons that was bought with this money. We also had to maintain the people from Msinga. There were about forty to fifty of them staying in the hostel who were not working and for which we were responsible. A meeting was called where we were told by Tjonjo who addressed this meeting that they needed the money to buy other firearms. Now you are talking about a contingent from Msinga. The contingent that you called the hit squads.

MR MTHEMBU: Who called them hit squads, I did not call them hit squads, I have already told you about what I know.

MR BERGER: Why are you running away from the word hit squads, Mr Mthembu?

MR MTHEMBU: Because I do not really understand what it means and what it is, not that I'm running away from the word.

MR BERGER: Mr Mthembu, I've noticed often during my questioning you start answering the question before the interpreter has finished interpreting, you understand English, don't you?

MR MTHEMBU: I do not understand it well, I'm not a learned person, I don't have my matric.

MR BERGER: Your counsel asked you - in fact read out a document, a paragraph from a document, it's at page 41, a long paragraph where you've said that "I would like to tell the Committee that I would not have done these things" etc etc and you expressed how sorry you were and you confirmed that you wrote that paragraph yourself.

CHAIRPERSON: Are you suggesting that the witness typed this himself?

CHAIRPERSON: No, no Chairperson ...[inaudible] that he had written this paragraph himself and his answer was yes. As I understood it that these were your own words, you wrote these words and they were then typed into this affidavit, isn't that what you said Mr Mthembu?

MR MTHEMBU: It is correct, as I've explained what was written here and what I wrote here was because I was actually following or trying to follow the English language as it is written, maybe I committed some mistakes in the process, I do not know.

CHAIRPERSON: I think in fairness to the witness he should draw - take his attention that in his affidavit he also refers to what is described in the affidavit as a hit squad as a self-protection unit.

MR BERGER: Yes, Chairperson, I know that.

CHAIRPERSON: And that occurs at paragraph 11 which is a response to a question dealing with hit squad operations. Paragraph 11 on page 26, yes, which is a request for further particulars in which is - in your affidavit it is stated that Mr Damara Tjonjo was the leader of the hit squad and then the question is "What hit squad did Mr Tjonjo lead?" and the answer to that is that "Damara Tjonjo was the leader of the self-protection unit." To make sure that, you know, that this follows.

MR BERGER: Mr Mthembu, do you see paragraph 11 on page 26, in front of you? You were asked the question "In your affidavit it is stated that Mr Damara Tjonjo was a member of hit squads, what hit squads did he lead?"

MR BRINK: I'm sorry, Mr Chairman, it appears the applicant doesn't have a copy of the - what's being referred to - I'll lend him our copy.

CHAIRPERSON: Would you be so kind enough so as to lend him your copy if you don't mind?

MR BRINK: Just give him your reference again please, Mr Berger?

MR LAX: And just to clarify, Mr Mthembu, that's in reply to a question, it's Lax here talking, it's in reply to a question which is on page 19 so just that you can connect the question with the answer. If you look at page 19 you'll see paragraph 11.1 "What hit squads did Mr Tjonjo lead i.e. who was members of.."

INTERPRETER: The speaker's mike is not on.

MR LAX: I beg your pardon. Then the answer is then on page 26, so just to give you the full picture. You understand?

MR MTHEMBU: Yes, I do understand.

MR LAX: Do you see there Mr Mthembu, you say in paragraph 11.1 in response to the question?

MR MTHEMBU: Yes, I see.

MR BERGER: You've already read paragraph 11.1, is that right?

MR MTHEMBU: Yes I've read it.

MR BERGER: Do you understand what it says?

MR MTHEMBU: Yes, I do.

MR BERGER: And the question you can see on page 19 paragraph 11.

MR MTHEMBU: Yes I do.

MR BERGER: The first question 11.1 - "What hit squads did Mr Tjonjo lead i.e. who was the members of these hit squads?"

Your answer: "Mr Damara Tjonjo was the leader of the self-protection units, I did not know the real names of the other people because they were not staying at Kwamadala."

MR MTHEMBU: That is correct.

MR BERGER: So what you are saying is that the hit squads and the self-protection units are one and the same thing?

MR MTHEMBU: What I can explain, Mr Berger, is that this word hit squads I do not really understand, I only know of self-protection units.

MR BERGER: I've got two questions - why did you use the word hit squads twice in your first affidavit and why did you not in paragraph 11.1 say that the use of the word hit squads is a mistake?

CHAIRPERSON: Mr Berger ...inaudible] in his evidence, when you asked him about that, he says it was a computer error and I think he went on to say that even the Minister of Religion does make a mistake?

MR BERGER: Minister of Religion?

CHAIRPERSON: Minister of Religion, yes.

MR BERGER: I missed that Chairperson.

CHAIRPERSON: I think what he said - the explanation that he's given us for the occurrence of the word hit squad in his affidavit is that it's a computer error.

MR BERGER: Chairperson, I would like to argue it at the appropriate time that the use of that word is not a computer error and in order for me to do that I must test his explanation that this is simply a computer error and the question I'm asking Mr Mthembu is, if this was an error and if you didn't intend to use the word hit squads, why did you not make that clear in paragraph 11 on page 26?

MR MTHEMBU: I don't know how can I explain so that you understand that this was a mistake. When you look at paragraph 11.1 on page 26, if you read from the beginning to the end, I'm sure you'll be able to see what that paragraph says.

MR BERGER: Mr Mthembu, when you were being led by your counsel you corrected a mistake in one of the affidavits - my question is simply this, why did you not correct the mistake in paragraph 6 on page 5?

MR MTHEMBU: We did correct it with my counsel, I don't know whether you do not have knowledge of the fact that it was a mistake indeed.

CHAIRPERSON: Are you saying that the use of the hit squad in your affidavit was discussed with your legal representative and that you corrected that?

MR MTHEMBU: Yes, we did correct it because I don't necessarily agree with this word.

CHAIRPERSON: Very well. I think what counsel wants to find out is that when you commenced your evidence before this Committee, you corrected certain mistakes which we were told appear in the document, in some of the documents that you had signed. Do you understand that?

MR MTHEMBU: Yes I do.

CHAIRPERSON: The question then is because of the use of the word hit squad is a mistake, why was that not brought to the attention of the Committee at the commencement of your evidence? Do you understand the question?

MR MTHEMBU: Yes, I understand.

MS PRETORIUS: May I intervene? May I just tell the Committee...[intervention]

CHAIRPERSON: Advocate Pretorius, will you just hold until the witness has answered the question?

MS PRETORIUS: I'll do that.

MR MTHEMBU: As far as I knew I thought this had been corrected.

CHAIRPERSON: Yes, Advocate?

MS PRETORIUS: This first statement from page 4 ...[intervention]

CHAIRPERSON: Can I just make a note of this first?

Yes please ma'am?

MS PRETORIUS: There's a statement that I only knew that it was going to be fault with this on the 5th July so the witness did not go through it again before he was here before the Committee on Monday Morning. That's the one statement that he did not go through with a fine tooth comb as he did the others whilst he was in jail, in prison. I only saw him here that morning again. So this is the only statement he did not have in his possession, which he did not know was going to be used at this Amnesty Hearing because it was annexed to the application for this Sebokeng Amnesty, it was annexed to the Boipatong Amnesty Hearing - if that may help Mr Berger in that way - that this was annexed to the Sebokeng Amnesty Hearing.

MR BERGER: With respect, Mrs Pretorius, you told us at the start of these proceedings that although this affidavit was for that purpose, you canvassed it with the witness and you then confirmed on oath that it was correct so that doesn't help us anything ...[intervention]

MS PRETORIUS: No, well it's the only explanation that I can give from my side, that he did not have it to go through it in prison word by word again.

CHAIRPERSON: Chairperson, with respect, that intervention from my learned friend doesn't help the situation because I'm not in the position to test that, but I'll go further.

In fact, Mr Mthembu, the error that you described at page 22 in your earlier evidence, you described as a typing error, the one that you corrected in paragraph 1 on page 22 and you confirmed the affidavit from pages 4 - 8 and 8 - 17 as being true and correct. In any event, you say that you discussed the question of this paragraph relating to hit squads with your counsel and you informed your counsel that it was a mistake, that is your evidence, am I right, Mr Mthembu?

MR MTHEMBU: That is correct.

MR BERGER: And that was shortly before you gave evidence on Monday, correct?

MR MTHEMBU: Yes, it was shortly before I appeared.

MR BERGER: On Monday, before this Committee?

MR MTHEMBU: No, it was on Saturday, on Saturday.

MR BERGER: It was on Saturday, the Saturday that's just passed that you made that communication, communicated that information to your counsel?

MR MTHEMBU: Yes that was on the Saturday before we came here.

MR BERGER: And you said that your reference to hit squads was a mistake, a typographical error?

MR MTHEMBU: Yes, we discussed it.

CHAIRPERSON: Well let's leave ...[intervention]

CHAIRPERSON: Mr Berger, although it appears on it's face to have been a short day, it's been a long day for the interpreters. We intend rising at four o'clock so at a convenient time you will indicate and then we can take the adjournment.

MR BERGER: I'll do that Mr Chairperson.

Let's leave the terminology hit squads out of the picture for the time being, Mr Mthembu, and let's call them self-protection units. These people, who formed part of the self-protection unit, were not residents of the Kwamadala Hostel, correct?

MR MTHEMBU: That is correct.

MR BERGER: They came from Msinga in Kwa-Zulu Natal, correct?

MR MTHEMBU: That is correct.

MR BERGER: There were forty to fifty of them and you were afraid of them?

MR MTHEMBU: That is correct.

MR BERGER: You had to support them, you had to feed them and you had to obey them?

MR MTHEMBU: Yes that is correct, they were protecting the community.

MR BERGER: And if you didn't feed them, protect them or feed them or obey them and support them, then they would kill you?

MR MTHEMBU: I don't think that they would have killed me, they may have reprimanded me somehow but they would not have killed me.

MR BERGER: In paragraph 8 of page 6 of your affidavit you say there were about 200 - 400 people working at that stage and everybody had to pay otherwise they would have been killed because we were all afraid of the Msinga contingent. Were you or were you not afraid of being killed by the Msinga Contingent if you did not obey them, pay them, feed them?

MR MTHEMBU: I think everybody is afraid of death.

MR BERGER: Chairperson, perhaps we should adjourn at this point. I intend to question the witness a lot longer on this question of the Msinga contingent so perhaps this would be an appropriate point in which to take the adjournment.

CHAIRPERSON: These hearings will now be adjourned until tomorrow morning at 9.30.

WITNESS EXCUSED

COMMITTEE ADJOURNS

10-07-1998: Day 4

ON RESUMPTION

CHAIRPERSON: Mr Mthembu, may I remind you that you're still under oath.

VICTOR MTHANDENI MTHEMBU: (s.u.o.)

CHAIRPERSON: Yes, Mr Berger, you may proceed.

CROSS-EXAMINATION BY MR BERGER: (Continues) Thank you Chairperson.

Mr Mthembu, is it correct that you came to the Vaal in 1988?

MR MTHEMBU: Yes, that is correct.

MR BERGER: And that you went to live in the Kwamasiza Hostel, correct?

MR MTHEMBU: Yes, that is correct.

MR BERGER: You left Kwamasiza and you landed up at Kwamadala, correct?

MR MTHEMBU: Yes, that is correct.

MR BERGER: Is it correct that that was because the residents of Kwamasiza were predominantly Xhosa speaking and they didn't want you there because you were Zulu speaking, is that correct?

MR MTHEMBU: Yes, that is correct.

MR BERGER: And that was the reason for Kwamadala being occupied in the first place by Zulu speaking residents?

MR MTHEMBU: Yes, that is correct.

MR BERGER: And in fact the vast majority of the residents from Kwamadala were ex-residents of Kwamasiza who had been chased out of Kwamasiza by the Xhosa speaking residents?

MR MTHEMBU: Yes, that is correct.

MR BERGER: And Kwamasiza is in Sebokeng, is that correct?

MR MTHEMBU: Yes, that is correct.

MR BERGER: Now, is it also correct that you had two very close friends at Kwamadala? You've already told the Committee about Mr Themba Mabote but you were also very friendly with Mr Sipho Lukhozi.

MR MTHEMBU: Yes, that is correct.

MR BERGER: Did you share the same room at Kwamadala?

MR MTHEMBU: No, we did not share a room.

MR BERGER: What room were you in?

MR MTHEMBU: I used 300, Room 3008.

MR BERGER: And Themba Mabote?

MR MTHEMBU: He used another room but I do not remember the number thereof.

MR BERGER: And Mr Sipho Lukhozi?

MR MTHEMBU: He too had his own room.

MR BERGER: I'm asking for the number of his room.

MR MTHEMBU: I cannot remember what room number he was in.

MR BERGER: The night of the attack, can you tell the Committee whether Sipho Lukhozi was present?

MR MTHEMBU: Yes, he was present.

MR BERGER: Where did you see him?

MR MTHEMBU: I saw him as we were going through the main gate to go and attack.

MR BERGER: Could you give the Committee the names of all the people that you saw that night at one point or another who were part of the attacking group?

MR MTHEMBU: There were many people there and therefore it is not possible to give the names of each one of them. There were many of them and we did not know one another.

MR BERGER: Can you give the names of the ...[intervention]

CHAIRPERSON: Can you just give us the names of those persons that you can still recall, if you don't recall say so.

MR MTHEMBU: I am trying to say here that I do not remember the names. I am sure about Sipho Lukhozi who was present that evening.

MR BERGER: You cannot remember a single other name?

MR MTHEMBU: No, I do not remember others because I too went there because I was angry knowing that we were going to attack and I therefore did not have time to record down people's names.

MR BERGER: And in the six years since the attack you haven't been able to recall a single other name?

MR MTHEMBU: As you have just explained that it is after six years, you too can see that it is difficult, it is after a long time now.

MR SIBANYONI: Through you Mr Chairperson.

Mr Mthembu, you can't even remember whether your fellow co-applicants were one of the people who were in the group during the night of the attack?

MR MTHEMBU: Some were present but some were not.

MR SIBANYONI: Who of them in your group do you still remember?

MR MTHEMBU: As I have explained Sir, I do not remember, it is very difficult for me. I've just indicated that I do not remember.

MR SIBANYONI: Thank you Mr Chairperson.

MR BERGER: What about your co-accused at the trial? You can't remember whether anyone of them was present at the attack?

MR MTHEMBU: As I have explained that I had, I was with Khanyile and Msane, those are the two names that I can still recall.

MR BERGER: Well according to you yesterday, you could recall Buthelezi's name.

MR MTHEMBU: Yes, that is correct.

MR LAX: Just one second Mr Berger.

Sorry Mr Mthembu, just so that we can be clear here. The question wasn't who was with you on that night, the question was who do you remember seeing on that night, okay?

MR MTHEMBU: Now I do understand. I am trying to explain that I do not remember. The gentleman should understand that.

MR BERGER: Isn't it just that you don't want to tell, you do remember but you don't want to tell?

MR MTHEMBU: I wouldn't say I don't want to talk about something that I have to say here before this Committee. I am just saying that I do not remember. I think you understand that it's been a long time since this thing happened.

MR BERGER: Mr Sipho Lukhozi has made an affidavit in which he says that he was not present during the attack. I will read it to you, it's paragraph 2 of his affidavit:

"In this moment or at this moment I don't like to go and sit in front of the TRC hearing because I was sentenced for this case of Boipatong Massacre when I was not present. I was not even around the area of Boipatong"

Is that false according to you?

MR MTHEMBU: As far as I know Sipho was present. It may as well be that he is saying this because he was sentenced. If he was not present, why then was he sentenced?

CHAIRPERSON: You just testified that you saw him at the gate as you were leaving the hostel, is that right?

MR MTHEMBU: Yes, that is correct.

CHAIRPERSON: Did you see him in Boipatong?

MR MTHEMBU: No, I do not recall seeing him at Boipatong.

MR BERGER: What was he doing at the gate when you saw him?

MR MTHEMBU: He was standing there as one of those people who were going to accompany us.

MR BERGER: He was armed and part of the attacking group?

MR MTHEMBU: Yes, that is correct.

MR BERGER: Chairperson, I'd just like to point out that if one has a look at the amnesty application of Mr Themba Lukhozi, I beg your pardon, Mr Sipho Lukhozi, he says there at page 145:

"The night of the 17th of June 1992 we went to the Boipatong residential armed with kierries, assegais, spears, firearms and other weapons"

...[no Afrikaans translation - transcriber's own translation]

And he sets out that in fact he was there and that he was part of the attack but ...[intervention]

CHAIRPERSON: Does it say in his affidavit that he has just filed, doesn't he mention something about being forced of some kind to make the application?

MR BERGER: No, he ...[intervention]

CHAIRPERSON:

"furthermore I didn't make any application for amnesty. Advocate Strydom and other one came to me about myself to make application"

he refused.

MR BERGER: Indeed.

CHAIRPERSON: So if that is the case, what value does one place either on that statement that you've just read or on the affidavit itself?

MR BERGER: I just wanted to point out to the Committee that there seems to be something funny going on, and the reason I say that Chairperson, is because if you look at the bottom of page 146 and you see there who signed as the deponent and you compare that signature with the signature of Thomas Lukhozi on the affidavit, it's a completely different signature.

CHAIRPERSON: Precisely the point, that's the point I'm trying to make to you and that is, in this affidavit the man says: "I was approached to make an application for amnesty but I refused". If one accepts that then it's simple ...[indistinct] to question the application that occurs at 144. In fact it is our - in view of this affidavit by Mr Lukhozi, we propose I think to do no more than just to strike this application off the role with the direction that perhaps the TRC should go back to Mr Lukhozi and advise him of his rights concerning an application for amnesty and the consequences of the withdrawal of this application in view of the fact that it may well be after the cut-off date. That is what we propose doing.

We are not disposed at this stage simply to withdraw his application on the basis, we believe that his rights ought to be explained to him before any further steps can be taken. Suffice it to say that in view of this affidavit, the signatures that appear on this document and the one there, there may well be something in what he says in this affidavit.

MR BERGER: About not making an application?

CHAIRPERSON: Yes, but that is not what we have to decide.

MR BERGER: Indeed Chairperson, but the point I'm making is that this application of Mr Lukhozi starting at page 144, was submitted as part of a group of applications and I'm suggesting that there is something funny with this application and this application wasn't submitted on its own, it was submitted as a group and there might be something in that. I won't take it any further at this stage.

MR STRYDOM: Chairperson, may I come in at this stage? Firstly I want to make the point that I can't see what this issue has to do with the cross-examination of the witness on the witness stand at this moment. Secondly I want to place it on record that I went to Medium B Prison, Diepkloof and I obtained this statement which appears on page 144 to 146 from Mr Lukhozi and interpreter accompanied me, he signed that statement in my presence, that is his signature and if needs be I will call the interpreter and lead evidence on this aspect.

I furthermore state that his second affidavit, the one that was handed in yesterday does not reflect the true situation and I will give evidence to that effect if needs be.

CHAIRPERSON: Mr Berger?

MR BERGER: Mr Mthembu, the reason that I'm asking you about this is because in one application Mr Lukhozi says he was part of the attack, in another statement he says he wasn't part of the attack and I'm asking you whether he was and you say: "Yes, he was part of the attack", is that correct?

MR MTHEMBU: Yes, that is correct.

MR BERGER: I want to now refer you, well tell you about a document and ask you for your response. This is a memorandum ...[intervention]

CHAIRPERSON: Mr Berger, just before you proceed, to the extent that the affidavit by Mr Lukhozi has now been referred to, perhaps it is appropriate to enter it on the record and this would be the first of those, wouldn't it? Shall we make it Exhibit A, I think it is.

MR BERGER: Yes, Mr Chairman.

CHAIRPERSON: Very well, the handwritten statement which is undated, made by Thomas Sipho Lukhozi, which at the second page indicates that it was taken by one, S M Madiba, will be handed in as Exhibit A and in view of the contents of that statement it appears appropriate at this stage to have the application by Thomas Lukhozi, which is AM7396/97 being struck off the role. We would recommend that the TRC should endeavour to get in touch with Mr Lukhozi and indicate the implications of the withdrawal of his application if that is what he intends to do.

It appears from his statement that he has given to, he has given a name of an Advocate A S Burger and his cellular phone number, perhaps the TRC could also get in touch with the lawyer reflected in that statement.

Mr Strydom, is there anything you want to add to that?

MR STRYDOM: I've got nothing to add.

CHAIRPERSON: You do confirm that you're not acting for him?

MR STRYDOM: I'm not acting for him.

CHAIRPERSON: Yes, indeed.

MR STRYDOM: Maybe I can just place on record what happened here. After he signed that first statement, the application, there was a request for further particulars and a request to submit an affidavit. He was again visited in jail and at that stage he did not want to speak to us any further and he said his advocate is Advocate Burger and that's the reason why at the beginning of this hearing we withdraw as his representatives.

CHAIRPERSON: Is there anything you wanted to place on record in this regard?

MR BERGER: Chairperson, the application has been struck off the role but I take it that the documents themselves are still capable of being referred to?

CHAIRPERSON: Well, for whatever relevance ...[intervention]

MR BERGER: For whatever they're worth.

CHAIRPERSON: Yes.

MR BERGER: Chairperson, just also for record purposes, I'm not the Advocate Berger that is referred to in that statement.

CHAIRPERSON: We accept that.

MR BERGER: Mr Mthembu, ...[intervention]

MR STRYDOM: Sorry to interrupt again, sorry. There was reference to the signature that differs in his statement. I've got another statement which the same Thomas Lukhozi has signed and this statement was to withdraw his bail because he was serving a sentence in any event on another charge and if there's going to be a reference to his signature, I would like to hand up this document just to show the signature on this document as well. I would beg leave to hand up this document.

CHAIRPERSON: Do we have enough copies of this document?

MR STRYDOM: Unfortunately I haven't got copies at this stage.

CHAIRPERSON: That's okay. ...[indistinct] on record, this signature which appears here differs from the one that is on the handwritten statement and it also differs from the one - well does it, I'm no handwriting expert but it does seem to me that it's similar to the one that is on page 146 of the application paper. Would you like to have a look at this Mr Brink? Would you also show it to Mr Berger?

MR PRIOR: Mr Chairman, likewise I don't pretend to be a handwriting expert but the signatures on this document and that which appears at page 146 appears to be the same.

CHAIRPERSON: Will you show that to Mr Berger?

MR BERGER: I'm also no handwriting expert but it could be, I don't know.

CHAIRPERSON: Very well, the sworn statement by Thomas Mkeshleni Lukhozi deposed to on the 5th of February 1998 will be handed in as Exhibit B.

Yes, very well. Thank you Mr Berger, will you proceed?

MR BERGER: Thank you Chairman.

Mr Mthembu, I want to read to you from a document which was compiled by the police and I want to ask you to comment if you can on the allegations made in this document. It says:

"On the 15th of March 1992, an attack took place at Chiefs Place Tavern in Sharpeville. Two woman were killed and several injured"

Do you know anything about that attack?

MR MTHEMBU: No, Sir, I know nothing about that.

MR BERGER: One of the perpetrators of the attack was injured by one of his colleagues by accident. He has stated on affidavit as follows. Now, this is his affidavit:

"I am able to live a the Kwamadala Hostel without charge. I am unemployed, as are several of the other residents of the hostel. We are supported by those residents who are employed"

I assume you can confirm that as applying to the people who came from Umsinga, is that correct?

MR MTHEMBU: Yes, that is correct Sir.

MR BERGER: He goes on to say:

"In addition we received food parcels from the International Red Cross every two weeks"

MR MTHEMBU: Yes, I have knowledge about that.

MR BERGER:

"We also robbed people in town. We as a group approached individuals and threatened them so that they gave us money"

MR MTHEMBU: No comment.

MR BERGER: Does that mean you have no knowledge or you don't want to comment?

CHAIRPERSON: Mr Berger, does that relate to the Boipatong Massacre?

MR BERGER: Indeed it does.

CHAIRPERSON: Yes, please let's get to the point at some point.

MR BERGER: Chairperson, if I could just tell you that this document came out of the docket. It has a covering sheet, the subject is:

"Moord: Boipatong 92.06.17"

And it says and I'm translating:

"Attached is a statement from a nameless person which has been obtained in a very sensitive way"

Second paragraph:

"The content of the statement was for me however of great value in the investigation.

Please hand this over to Lieutenant Colonel Eager and explain the situation to him"

And then it speaks about one of the people mentioned in the statement. Now this statement is particularly relevant to the Boipatong attack, I would submit. I've tried to get to the point as quickly as possible by, instead of asking a whole lot of questions, to say to the witness: "Can you confirm this", and to take him through the statement. I can't think of a quicker way of doing it, thank you.

I will try and summarise large chunks and then you can tell me whether you agree or don't agree Mr Mthembu. I will leave out the non-important parts. He says:

"All the residents of the Kwamadala Hostel are members of the Inkatha Freedom Party. Amongst the residents there are individuals whom are leaders of the Inkatha Freedom Party"

Correct?

MR MTHEMBU: That is correct.

MR BERGER:

"Amongst them is one, Buthelezi"

One of the leaders, yes?

MR MTHEMBU: That is correct.

MR BERGER: He then says:

"A system exists at the Kwamadala Hostel whereby each resident becomes part of a unit"

Is that correct?

MR MTHEMBU: That is correct.

MR BERGER:

"I was placed in a unit consisting of four members"

Mr Mthembu, how many members were in your unit?

MR MTHEMBU: There were three.

MR BERGER: And who were the people in your unit?

MR MTHEMBU: Mr Thembelani Buthelezi, myself and Ntwzee, the secretary.

MR BERGER: Do you know people in any of the other units?

MR MTHEMBU: There were some although I cannot specify their names but there were people in other units.

MR BERGER: And what were these units called, what was the name given to these units?

MR MTHEMBU: They were the Indunas in the hostel.

MR BERGER: Were you an Induna?

MR MTHEMBU: No.

MR BERGER: I don't understand, but let me continue. He says:

"I was trained in the use of weapons by Buthelezi"

MR MTHEMBU: I don't know anything about that, I don't even know who you are talking about.

MR BERGER: Well he goes on to say:

"Every resident is trained in the use of weapons"

MR MTHEMBU: I don't have knowledge of that.

MR BERGER: Well you were trained in the use of weapons were you not?

MR MTHEMBU: No.

MR BERGER: How was it possible for you to successfully apply for three firearms if you had no training in weapons?

MR MTHEMBU: I think that is a mistake, there were two guns not three. I went to the Vereeniging shooting range and that's where I practised shooting.

MR BERGER: Chairperson, I don't have copies available for the Committee at this stage but I have a document which is also taken from the docket, which is an extract from Mr Mthembu's identity document and in there there is space for firearm licences. There are three firearm licences reflected there. I will make copies of that document and hand it in to the Committee.

Two of those guns I can tell you Mr Mthembu, were applied for and granted at the beginning of 1992 and the third gun was applied for and granted at the beginning of June 1992.

MR MTHEMBU: Sir, I admit that I applied for licences for my guns but what I do not agree with is the amount, the number of guns. I explained even yesterday that I have only two guns.

MR BERGER: Did you or did you not successfully apply for a licence at the beginning of June 1992?

MR MTHEMBU: Yes, I did.

CHAIRPERSON: Let's assume this man had 20 firearms, how is that relevant to the question of whether or not he went to Boipatong and was part of the attack and indeed he took part in the attack? I think the point has been made. I gather that you're going to give us some documentation to support what you're saying, and that is that he had three firearms issued to him and he says on the one hand that he only had two. He's given us an explanation yesterday as to how that occurred. Can you take the matter any further, because I think all that you need to do is just to provide us with the documents which indicate that.

MR BERGER: As you please Chairperson.

CHAIRPERSON: Yes, because I don't think we'll take the matter any further now, you've made the point.

MR BERGER: The question I want to ask you Mr Mthembu is, why were you applying for so many weapons and why were you making application in June of 1992 for another weapon?

MR MTHEMBU: Sir, the reason for applying for these licences was for self-protection where I resided and also in the streets.

MR BERGER: And for that you needed more than one gun?

MR MTHEMBU: I applied for two because I needed them.

MR BERGER: Let me continue with this affidavit.

"I am aware that other members of other units who were also trained in the use of weapons"

MR MTHEMBU: I don't have any comment on that.

MR BERGER:

"I have seen many arms and ammunition stored in the Kwamadala Hostel"

MR MTHEMBU: I don't have any knowledge of that.

MR BERGER: Well let me refer you to page 6 of your amnesty application, page 6 of the bundle, paragraph 7. You say there:

"Vanana Zulu was in control of the weapons at Kwamadala Hostel. The weapons that I can recall were AK47's. There were more or less 20 and hand weapons. There were more or less 8 to 10 that I saw. These weapons were brought to the Kwamadala Hostel by Xoltlo from Vosloorus"

MR MTHEMBU: That so correct.

MR BERGER: Do you confirm that?

MR MTHEMBU: Yes.

MR BERGER: Well then why do you dispute the sentence which I just read out to you:

"I have seen many arms and ammunition stored at the Kwamadala Hostel"

MR MTHEMBU: I don't understand where you get that from or where it comes from.

CHAIRPERSON: The difficulty that you have there Mr Berger is this, you're reading a document in which the person who made that statement claims that he saw these firearms. Now when the witness says: "I can't comment, I don't know about that", he may well be saying: "I don't know whether there person saw those weapons". Do you see the difficulty?

MR BERGER: Perhaps my question was too loose.

CHAIRPERSON: Yes, indeed, indeed.

MR BERGER: You do know about arms and ammunition stored at the Kwamadala Hostel do you not?

MR MTHEMBU: Yes, Sir, I do.

MR BERGER: For how long had those arms been stored at Kwamadala? Since you arrived were there arms or was it only after you arrived?

MR MTHEMBU: I would not know about that because when I arrived there were already residents at Kwamadala Hostel and I did not know whether they were already stored there or not.

MR BERGER: When did you become aware of the fact that arms were being stored at Kwamadala Hostel?

MR MTHEMBU: I first knew because I saw them when we went to attack Boipatong.

MR BERGER: Was that the first time that you became aware that weapons were being stored at Kwamadala Hostel, the night of the attack on Boipatong?

MR MTHEMBU: Yes, that is correct Sir.

MR BERGER: Before that night, before the 17th of June 1992, you were not aware of any arms that were being stored at Kwamadala Hostel?

MR MTHEMBU: No, Sir.

MR BERGER: Let me read to you what you say in paragraph 8, page 6:

"These weapons were kept by Vanana Zulu and he hid them away. I saw these weapons when they were handed to us by Vanana Zulu one by one"

Are you saying that that is on the night of the attack?

MR MTHEMBU: No, I am trying to explain here that I saw the weapons on the night or on the evening that we were supposed to attack Boipatong.

MR BERGER: Yes, but when you say in your affidavit:

"These weapons were kept by Vanana Zulu and he hid them away"

MR MTHEMBU: That is correct.

MR BERGER: When are you referring to, when did he hide them away?

MR MTHEMBU: I am speaking of the period of when the weapons arrived at Kwamadala Hostel.

MR BERGER: And when was that period?

MR MTHEMBU: Prior to the attack on Boipatong.

MR BERGER: So prior to the attack on Boipatong you were aware that weapons were being hidden in the hostel?

MR MTHEMBU: Although I cannot explain it but I think there were because we were then supposed to attack.

CHAIRPERSON: Are you saying that because these firearms were handed out to you on the night of the attack, you assume that they must have always been there?

END OF TAPE - POSSIBLE WORDS LOST

MR MTHEMBU: ...[inaudible]

CHAIRPERSON: Is there a person called Damarra Chonco.

MR MTHEMBU: Damarra Chonco, yes.

CHAIRPERSON: Well in paragraph 6 of your affidavit you referred to a person by the name of Damarra Chonco.

MR MTHEMBU: Yes.

CHAIRPERSON: What is his surname, is it Gonku or Chonco?

MR MTHEMBU: It's Chonco.

CHAIRPERSON: So there's a mistake here?

MR MTHEMBU: Yes.

CHAIRPERSON: Alright. Vanana Zulu, is it Vanana Zulu or is it Fanana Zulu?

MR MTHEMBU: Vanana.

CHAIRPERSON: Vanana: V-A?

MR MTHEMBU: Yes.

CHAIRPERSON: Okay, very well.

MR BERGER: Mr Mthembu, is it your evidence that nobody informed you prior to the attack on Boipatong that weapons were being purchased from the money that had been collected from you and other residents and that those weapons were being brought to Kwamadala? Nobody informed you and you never became aware of that?

MR MTHEMBU: Nobody informed me about that.

MR BERGER: And you never became aware of that from anybody?

MR MTHEMBU: What I can explain is that I once saw Mr Chonco arriving in a car having these weapons.

MR BERGER: And that was many days before the attack on Boipatong?

MR MTHEMBU: It was shortly before the attack on Boipatong.

MR BERGER: Why then do you say that you assumed that weapons were kept at the hostel before the attack on Boipatong when in fact you knew that weapons had been brought to the hostel before the attack on Boipatong?

MR MTHEMBU: As I have already explained Sir, that I cannot be aware of everything that happens in that hostel because I had other things to do.

MR BERGER: Mr Mthembu, isn't it correct that money was collected before the attack, well before the attack on Boipatong? Money was collected from hostel residents at Kwamadala to buy guns?

MR MTHEMBU: That happened. When I arrived there it was already happening at the hostel but I had no knowledge of what the money was being used for.

MR BERGER: Isn't it correct that at previous meetings before the attack on Boipatong, you were told that the money which had been collected from you, you being all the residents, had been used to purchase guns, weapons?

MR MTHEMBU: It is possible but I may not have been present at that meeting.

MR BERGER: I'm asking whether you were told at those meetings that the money you collected was being used to buy guns?

MR MTHEMBU: As I have already mentioned, I may not have been at that meeting when they were told.

MR BERGER: Let me read to you what you've said. The question was put to you, page 20, paragraph 24:

"You allege that Damarra Chonco brought weapons from Vosloorus to Kwamadala"?

Your answer at page 32, paragraph 24:

"Yes"

24.1:

"How do you know he brought weapons from Vosloorus"?

Answer, page 32, paragraph 24.1:

"They told us at previous meetings that Mr Chonco went to buy weapons with our money that they collected from us. He used his car and went to Vosloorus and we were supposed to pay him some more money for using his car"

How can you now say that you were not at those meetings and you can't say what was said?

MR MTHEMBU: I say that because I know that, I may not have been present at the meetings and I may have heard about this from other people or from Mr Chonco himself after those meetings were held.

MR BERGER: Let me refer you to page 6, paragraph 8:

"I also saw many weapons during the police operation at the hostel. When they were attacked the South African Police came to search the hostel and found a lot of firearms which they confiscated. No weapons were left, which resulted in Vanana Zulu telling us that everybody had to contribute so that more weapons could be bought. We had to pay R800 per person who were working at the time, for these weapons"

Were you not at that meeting either?

MR MTHEMBU: I think I was present at that meeting because it is explained here, I was present at the meeting.

MR BERGER: And then after - and aren't those the previous meetings that you're referring to at page 32, paragraph 24.1?

MS PRETORIUS: Mr Chairperson, may I just mention one thing, that this statement on page 6 and paragraph 8 is in regard to the Sebokeng attacks and those Sebokeng attacks occurred after the Boipatong attack. I think that is why it reads:

"When they were attacked the South African Police came to search the hostel and found a lot of firearms which they confiscated"

This refers to the Sebokeng attack and not to the Boipatong attack. The Boipatong attack only starts on page 8.

MR BERGER: Chairperson, with respect, if my learned friend could allow the witness to answer those questions it would be far more useful. He now has a perfect avenue for escape.

CHAIRPERSON: The perfect avenue for - the issue is whether the question is permissable in the first place. What is the basis of your objection?

MS PRETORIUS: My objection is that it is clear from this statement that this first part was the affidavit that was annexed to the application for the Sebokeng matter, so this happened after the Boipatong massacre. It must just be clear to the Committee, in my mind, that this has no bearing on what happened before the Boipatong attack. This happened after the Boipatong attack.

MR BERGER: It's not clear from the statement at all Chairperson, that that is the position.

MS PRETORIUS: That is as far as I can take it Chairperson because as I say, this statement was initially attached to the Sebokeng matter.

CHAIRPERSON: Well, where does it indicate that it relates to the Sebokeng attack?

MS PRETORIUS: Unfortunately it does not because, it does not say that.

CHAIRPERSON: Yes.

MS PRETORIUS: But on page 8 there is a heading that says:

"The Boipatong Massacre"

and then it deals with the Boipatong Massacre.

CHAIRPERSON: Yes, at page 8 it deals with it.

MS PRETORIUS: And in paragraph 8 on page 6 it says:

"When they were attacked the South African Police came to search the hostel and found a lot of firearms which they confiscated"

CHAIRPERSON: Yes.

MS PRETORIUS: There he speaks about the attack.

CHAIRPERSON: Yes. Well unless you can indicate precisely what is the basis for the objection, I'm disposed to allow the question because it does seem to me that the statement itself does not purport to restrict itself to Sebokeng but on the contrary it appears to refer broadly to the situation which obtained in Boipatong.

MS PRETORIUS: As the Chairperson pleases.

CHAIRPERSON: But I think you are perfectly entitled to re-examine the witness on the issues so as to clarify the matter that may well have been obscured by the vagueness of the statement, do you understand that?

MS PRETORIUS: I do, thank you Chairperson.

CHAIRPERSON: Yes, very well.

Do you still remember the question?

Mr Berger, do you want to put the question again?

MR BERGER: I'll put the question Chairperson.

CHAIRPERSON: Yes, thank you.

MR BERGER: Mr Mthembu, page 6, paragraph 8 of your affidavit, you talk there about Mr Vanana Zulu telling after the police had confiscated guns from the hostel that money is required to purchase weapons and that you had to contribute R800 per person for those weapons.

MR MTHEMBU: As I've explained before, as it has been explained, this statement relates to the Sebokeng attack.

CHAIRPERSON: Let me ask you this, prior to the attack on Boipatong, were you aware that there were weapons in Kwamadala Hostel?

MR MTHEMBU: No, I did not have knowledge of that.

CHAIRPERSON: Were you aware, prior to the attack on Boipatong, that certain monies were being collected and that the purpose of collecting those monies was to buy weapons?

MR MTHEMBU: Yes, I had knowledge of that.

CHAIRPERSON: Do you know whether these weapons were indeed purchased with that money?

MR MTHEMBU: Yes, I'm certain that they were bought.

CHAIRPERSON: And this was well before the attack on Boipatong?

MR MTHEMBU: Yes, that is correct.

CHAIRPERSON: Does that help you Mr Berger?

MR BERGER: Thank you Chairperson, it does.

Now Mr Mthembu, what I want to ask you is, and I'm talking about the period before the attack on Boipatong so we get no mistake about that, right, is it your evidence that Vanana Zulu was the person who was in control of the purchasing of weapons for Kwamadala Hostel?

MR MTHEMBU: That is not correct Sir.

MR BERGER: Who was the person in control of purchasing weapons for Kwamadala Hostel before the Boipatong attack?

MR MTHEMBU: Mr Chonco.

MR BERGER: Before the Boipatong attack, who was in control of the weapons at the Kwamadala Hostel?

MR MTHEMBU: Mr Vanana Zulu.

MR BERGER: So Mr Vanana Zulu would call meetings, this is before the Boipatong attack, he would call meetings, he would say to the residents: "We need money to buy guns", those residents who were working would contribute, Vanana Zulu would then collect the money and give it to Mr Chonco, Mr Chonco would then go and purchase the guns and bring to the Kwamadala Hostel, is that the way it worked?

MR MTHEMBU: Yes, that is correct.

MR BERGER: And as far as you knew, Mr Chonco purchased those guns or got those guns from Vosloorus Hostel?

MR MTHEMBU: Yes, Sir.

MR BERGER: That is what you heard but you don't know precisely where the guns came from, is that correct?

MR MTHEMBU: Yes, that is correct.

MR BERGER: Where is Mr Vanana Zulu today?

MR MTHEMBU: I do not know where he is.

MR BERGER: He is alive is he not?

MR MTHEMBU: Yes, he's still alive.

MR BERGER: Who would know where he is today?

MR MTHEMBU: I would not have knowledge of that because I am in custody.

MR BERGER: The last time that you saw Mr Vanana Zulu, where was he?

MR MTHEMBU: I saw him for the last time on the other side down there.

MR BERGER: Where is there on the other side, I don't understand you?

MR MTHEMBU: I'm talking about on the basement, that's where we meet when we arrive here.

CHAIRPERSON: Was that this week?

MR MTHEMBU: Yes, that is correct.

MR BERGER: Oh, he was here at the hearings?

CHAIRPERSON: He saw him outside.

MR MTHEMBU: I saw him outside not inside.

MR BERGER: And when was that that you saw him?

MR MTHEMBU: On Tuesday.

MR BERGER: Can you see if he's in the audience today?

MR MTHEMBU: No, I don't see him.

MR BERGER: At the time of the Boipatong attack, would it be correct to say that Mr Vanana Zulu was the most senior member of the IFP at Kwamadala Hostel?

MR MTHEMBU: Yes, that is correct.

MR BERGER: And is it also correct that he was not permanently resident in the Kwamadala Hostel at that time?

MR MTHEMBU: I knew him to be a fulltime resident of the hostel.

CHAIRPERSON: Mr Berger, when you are moving on to the point, will you indicate as there's one thing that I just want to clarify in regard to the purchase of the arms.

MR BERGER: Yes, Chairperson.

What work was Mr Vanana Zulu doing at that time, besides organising attacks? What was he employed to do?

MR MTHEMBU: He was working for Iscor.

MR BERGER: He was not one of your co-accused, is that correct?

MR MTHEMBU: No.

MR BERGER: Do you know whether he is still working for Iscor?

MR MTHEMBU: No, I don't know whether he is still working there or not.

MR BERGER: Is it correct that from time to time before the Boipatong attack, Vanana Zulu would leave the hostel, go away for a couple of days and then return to the hostel?

MR MTHEMBU: I have no knowledge about that.

MR BERGER: Chairperson, I'm going to come back now to this affidavit, so perhaps this would be an appropriate point.

CHAIRPERSON: Very well.

Prior to the attack on Boipatong, had the police conducted any raids into the hostel?

MR MTHEMBU: The police used to come often to conduct raids in the hostel.

CHAIRPERSON: During those raids, would the police confiscate firearms found in the hostel?

MR MTHEMBU: Some of these things happened when I was at work and I would get the report back from work and I would be informed as to what they took and what they did not confiscate.

CHAIRPERSON: Were you ever told?

MR MTHEMBU: Yes, that's correct.

CHAIRPERSON: What?

MR MTHEMBU: I was told that the police raided the hostel.

CHAIRPERSON: But were you ever told that they had confiscated firearms?

MR MTHEMBU: I would not know. The person who was telling me would actually just tell me and he would not give me all the necessary details.

CHAIRPERSON: Okay. You did witness did you not, some of the operations when the police would come to the hostel and confiscate firearms? Well that's what you said in your affidavit, you say so.

MR MTHEMBU: Sir, sometimes the police would come at different times.

CHAIRPERSON: I understand that, but all I want to find out is, you say in paragraph 8 that:

"I saw many weapons during the police operations at the hostel. When they were attacked the South African Police came to search the hostel and found a lot of firearms which they confiscated"

That's what I'm asking about, that's what you say, that's true, right?

MR MTHEMBU: Yes, that is correct.

CHAIRPERSON: Now did this occur prior to the Boipatong attack?

MR MTHEMBU: Yes, that is correct.

CHAIRPERSON: Okay. So once the police had come there to confiscate the firearms there were no firearms in the hostel?

MR MTHEMBU: I would not have knowledge about that, as to whether they confiscated all the firearms or not.

CHAIRPERSON: If you know, if you don't know say so. The confiscation of the weapons by the police, did it trigger the need to collect money so as to buy more weapons for the residents at the hostel?

MR MTHEMBU: Yes, that is correct Sir.

MR BERGER: Thank you Chairperson.

Following on from that Mr Mthembu, and let me just put you in the picture, this is now before the attack on Boipatong, after the police have confiscated weapons from the hostel and there is now a need to collect money to get more weapons right?

MR MTHEMBU: Yes, that is correct Sir.

MR BERGER: It's at that point that there is a meeting and Mr Vanana Zulu then called upon the residents, including you, to contribute R800 if you are working so that guns can be purchased, right?

MR MTHEMBU: That's correct.

MR BERGER: And you had no choice, you had to pay because otherwise you feared that you could have been killed by one of the members of the Umsinga contingent?

MR MTHEMBU: That is correct Sir, I also contributed.

MR BERGER: So this group of men form Umsinga, they were brought to the hostel and they were there to make sure that all the hostel residents were kept in check and did as they were told, am I right?

MR MTHEMBU: Yes, that's correct Sir.

MR BERGER: Now the money that was collected, was that given to Mr Vanana Zulu?

MR MTHEMBU: It was given to Mr Chonco.

MR BERGER: Was Mr Chonco part of this unit from Umsinga?

MR MTHEMBU: Yes, that is correct Sir.

MR BERGER: You moved to the Kwamadala Hostel in 1990, is that correct?

MR MTHEMBU: That is correct Sir.

MR BERGER: You were also arrested by the police in 1990, were you not?

MR MTHEMBU: In 1990?

MR BERGER: Yes.

MR MTHEMBU: No, I don't remember.

MR BERGER: When was the first time that you were arrested by the police Mr Mthembu?

CHAIRPERSON: In connection with what?

MR BERGER: At all Chairperson.

MR MTHEMBU: This question I can explain. Here you're talking about my being arrested for the first time. I've been arrested several times and I cannot remember exactly when.

MR BERGER: Mr Mthembu, let me go back to this affidavit. I'm sorry, it's just been pointed out to me. Mr Sibusiso Chonco, is he the same Mr Chonco that you referred to who was head of the Umsinga contingent?

MR MTHEMBU: The one that I am talking about is Damarra, I don't know about Sibusiso.

MR BERGER: You see, because I have a note here that you and a number of people including Mr Sibusiso Chonco were arrested by the police in 1990, that's why I asked you about that arrest but you say that you can't remember?

MR MTHEMBU: As I have explained Sir, that I do not remember because you are talking about 1990. If you calculate from 1990 up to now, really I don't know how many years. I do not record things as they happen.

CHAIRPERSON: All that you're being asked about now is Sibusiso Chonco. Is Sibusiso Chonco the same person as Damarra Chonco, to your knowledge?

MR MTHEMBU: As far as I know I did explain Sir, I indicated the I know Damarra Chonco, not Sibusiso. Maybe he is a different person.

CHAIRPERSON: There is a document in front of him which indicates that in 1990 you were arrested together with the person names Sibusiso Chonco. You don't recall that incident?

MR MTHEMBU: No, I don't recall that.

MR BERGER: Did it happen that from 1990 onwards, as you've said the police used to raid Kwamadala Hostel at various intervals, did it happen during one of those raids that you were arrested?

MR MTHEMBU: What I still remember is that I was arrested at night in 1993 when the police came.

MR BERGER: Alright, let me go back to this affidavit. "After the sentence I have seen many arms and ammunition stored at the Kwamadala Hostel"

is the sentence.

"Meetings were held every Tuesday and Thursday"

Is that correct Mr Mthembu?

MR MTHEMBU: On what page is that Sir?

MR BERGER: You won't find that in the page before you, I'm reading from another affidavit. I'm asking you, is it correct that every Tuesday and every Thursday meetings were held at the Kwamadala Hostel?

MR MTHEMBU: We used to hold youth meetings on those days.

MR BERGER: Every Tuesday and every Thursday?

MR MTHEMBU: Yes, that is correct.

MR BERGER: It goes on:

"At these meetings we were informed when new weapons had arrived"

MR MTHEMBU: I do not have knowledge about that.

MR BERGER: Yesterday you told the Committee that you only had meetings three times a month.

MR MTHEMBU: I was giving you an example that we might perhaps hold meetings three times a month. On Tuesdays and Wednesdays we sometimes never had an opportunity or for some reason not hold the meeting when we were supposed to.

MR BERGER: I just asked you whether meetings were held every Tuesday and every Thursday and you said yes.

MR MTHEMBU: Yes, I did admit.

MR BERGER: Mr Mthembu, why is it that you are so reluctant to impart information all the time? If you had meetings every Tuesday and every Thursday, why yesterday did you tell the Committee that you met three times a month?

MR MTHEMBU: You must also understand that you are asking me about something that happened some years ago.

MR BERGER: And why also yesterday did you say that your meetings were just the three of you, you, the chairperson and the secretary when now it seems that they were youth meetings every Tuesday and every Thursday?

MR MTHEMBU: Now you are asking me something which I really cannot answer, you are asking me about something that had already happened.

CHAIRPERSON: Well yesterday you mentioned that there were the three of you, I think Mr Buthelezi, yourself and Ntzwee was the other person. Did the three of you meet separately from the rest of the members of the youth?

MR MTHEMBU: We used to meet with the other youth members, we did not hold our own separate meeting.

CHAIRPERSON: So every time the three of you meet you also meet together with representatives of the youth?

MR MTHEMBU: Yes, that is correct Sir.

CHAIRPERSON: So the three meetings that you estimated you had a month, you were referring to those meetings?

MR MTHEMBU: Yes, Sir, that is correct.

CHAIRPERSON: Now these meetings that you've just referred to now which were held every Tuesday and Thursday, who met at those meetings?

MR MTHEMBU: The whole youth would meet because they knew that we would hold meetings on Tuesdays and on Thursdays.

MR BERGER: My question Mr Mthembu is why did you not mention any of this yesterday?

MR MTHEMBU: I would not answer to something that has not been asked.

MR BERGER: I'll leave that answer.

CHAIRPERSON: Would this perhaps be an appropriate time to take the tea adjournment?

MR BERGER: It would, thank you Chairperson.

CHAIRPERSON: Yes, very well, we will take the tea adjournment now and we will return at eleven thirty.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Mr Mthembu, may I remind you that you're still under oath.

VICTOR MTHEMBU: (s.u.o.)

CHAIRPERSON: Yes, Mr Berger?

MR BERGER: Thank you Chairperson.

Mr Mthembu, is it not correct that Sibusiso Chonco and Damarra Chonco are the same person, one and the same person?

MR MTHEMBU: What I can say is I do not know whether it is the same person because I have just spoken of Damarra Chonco.

CHAIRPERSON: I think what counsel is asking you is whether, is it not a fact that Damarra Chonco and Sibusiso Chonco is one and the same person.

MR MTHEMBU: I do not know this name Sibusiso Chonco.

MR BERGER: You knew Damarra Chonco from 1990 until 1993, is that correct?

MR MTHEMBU: That is correct.

MR BERGER: And the two of you were in the same unit, is that correct?

MR MTHEMBU: Do you mean the youth?

MR BERGER: Yes.

MR MTHEMBU: He was not in the youth.

MR BERGER: And in the unit that you spoke about earlier? Do you remember you agreed with me that all residents were split up into units, was he in that unit?

CHAIRPERSON: That is now in the unit in which he belonged?

MR BERGER: Yes.

CHAIRPERSON: His unit as I understand, consisted of himself, Buthelezi and Ntzwee.

MR BERGER: Oh, it's my mistake, I apologise for that Mr Mthembu.

CHAIRPERSON: As I under Chonco, Chonco was the leader of the Umsinga contingent.

MR BERGER: Is that correct Mr Mthembu?

MR MTHEMBU: Yes, that is correct.

MR BERGER: And it was in that capacity as leader of this Umsinga contingent that you knew him from 1990?

MR MTHEMBU: Yes, that is correct.

MR BERGER: Do you know of a person called Darkie Chonco?

MR MTHEMBU: Yes, Sir.

MR BERGER: Who is he?

MR MTHEMBU: He is Damarra Chonco's youngest brother.

MR BERGER: I want to turn back to Mr Vanana Zulu. Do you see him today?

MR MTHEMBU: Yes, I do.

MR BERGER: Is he sitting in this hall?

MR MTHEMBU: Yes, that is correct.

MR BERGER: Is he sitting there in the front row on the ...[intervention]

CHAIRPERSON: If you want the witness to identify Mr Zulu, why don't you just ask the witness to do so. If he's here he must be somewhere around here.

MR BERGER: Mr Mthembu, could you point out Mr Vanana Zulu?

MR MTHEMBU: There he is.

CHAIRPERSON: If there is a Mr Vanana Zulu inside the hall, would you please stand up?

VANANA ZULU STANDS UP

CHAIRPERSON: Thank you Sir.

MR BERGER: And the person who has just stood up now, Mr Vanana Zulu, he was sitting in that same seat just before the adjournment, is that not correct?

MR MTHEMBU: I did not see him before the break.

MR BERGER: At the break he came up to speak to you, correct?

MR MTHEMBU: Yes, I was with him outside.

MR BERGER: And what did he tell you?

MR MTHEMBU: He greeted me.

MR BERGER: What else did he tell you?

MR MTHEMBU: He did not say anything else.

MR BERGER: How long did you spend with him outside?

MR MTHEMBU: It was not for long, I was with my co-accused at the time.

MR BERGER: And all he did was greet you and say nothing more?

MR MTHEMBU: Yes, he just greeted me.

MR BERGER: I saw Mr Vanana Zulu having a long conversation at the foot of the stage, are you aware of that?

MR MTHEMBU: At the stairs?

MR BERGER: Yes, just after the adjournment, Mr Vanana Zulu came up to where you and all the applicants were sitting and had a conversation.

MR MTHEMBU: Maybe you saw somebody else.

MR BERGER: Are you saying that you have had no conversation with Mr Vanana Zulu today?

CHAIRPERSON: Mr Berger, he has just told us that during the tea adjournment he spoke to Mr Zulu, you can put that question. If you want to find out whether there was a discussion with Mr Zulu inside the hall, that's probably the way you should put it unless you want to make a distinction between just greeting and a conversation.

MR BERGER: Well that was my understanding.

CHAIRPERSON: Okay, very well.

Do you understand the question?

MR MTHEMBU: I understand the question that Mr Berger is asking but he is not satisfied with my response and I do not know how to respond to his question so that he is satisfied.

MR BERGER: Then I'll be more specific. Other than Mr Vanana Zulu greeting you, you have not had any other conversation with Mr Vanana Zulu today?

MR MTHEMBU: Because of the short time that we have and because I had to speak to the other people as well, I did not speak to him for long. The mere fact that he greeted me means something to me.

MR BERGER: Besides the greeting, what else did Mr Vanana Zulu say to you either inside the hall or outside the hall?

MR MTHEMBU: There is nothing that he said to me. I did not see him in the hall but he spoke to me at the basement.

MR MALINDI: Mr Chairman, may I pose just one question?

Mr Mthembu, you also said on Tuesday when you arrived you saw him in the basement, did he speak to you on Tuesday?

MR MTHEMBU: Yes, he did speak to me.

MR MALINDI: Did you have a lengthy discussion?

MR MTHEMBU: We did not speak for long because there are some of my co-accused whom I haven't seen for a long time, therefore I have to speak to each and everyone of them and I cannot concentrate on one person.

MR MALINDI: Thank you Mr Chairperson.

MR BERGER: Thank you.

Let me go back to this affidavit. I'm sorry there is something else I have to put to you about Mr Vanana Zulu. You said that Mr Vanana Zulu was not part of the attack on Boipatong?

MR MTHEMBU: Yes, Sir.

MR BERGER: How do you know that?

MR MTHEMBU: I know because he was not there, he had gone home.

MR BERGER: How do you know that? Did he tell you that before he left: "I'm going home"?

MR MTHEMBU: He did not tell me but I saw him when he left in the car.

MR BERGER: When did he leave the hostel?

MR MTHEMBU: Although I cannot specify the time, but it was on a Wednesday afternoon.

MR BERGER: On Wednesday the 17th of June 1992?

MR MTHEMBU: Yes, that is so.

MR BERGER: So you're saying he left the hostel a few hours before the attack started?

MR MTHEMBU: As I've just explained he left in the afternoon.

MR BERGER: And where did he go? You say to his family, my question is: "Where"?

CHAIRPERSON: Just before you opt, when you want to move onto the next point would you just indicate as there's a matte that I just want to raise, thank you.

MR BERGER: Mr Mthembu, I asked you a question.

MR MTHEMBU: He went home.

MR BERGER: My question is, where was his home?

MR MTHEMBU: That's Nongoma in KwaZulu Natal.

MR BERGER: Did he tell you: "I'm going home to Nongoma"?

MR MTHEMBU: He did not tell me that he was going to Nongoma, but what I know is that if a person uses these taxis to Nongoma, he must be going home.

MR BERGER: But you never saw him using a taxi did you, you saw him leaving in his car?

MR MTHEMBU: These taxis to Nongoma park outside the hostel so when he got into one I knew that he must be going home.

MR BERGER: No, you told the Committee that he got into his car and left the hostel that Wednesday afternoon.

MR MTHEMBU: I do not understand what you mean. I meant that he got into the taxi, the car that I was talking about.

MR BERGER: Why did you then tell the Committee that he got into his car and drove away from the hostel?

MR MTHEMBU: I did not say that he got into his car, I am only hearing it from you that he has his own car.

MR BERGER: Isn't it correct that Mr Vanana Zulu has family in Boipatong or had family in Boipatong at that time?

MR MTHEMBU: At what time?

MR BERGER: June 1992.

MR MTHEMBU: I don't know about that.

MR BERGER: Isn't it correct that Mr Vanana Zulu was involved in the attack on Boipatong?

MR MTHEMBU: I have no comment on that.

MR BERGER: I can tell you that there is a witness who can say that he was in Boipatong that night, in fact he went into a house which was occupied by one of his co-workers at Iscor and the owner of the house said: "Why are you coming to kill me", and Vanana Zulu left that house. You are absolutely certain that Vanana Zulu wasn't in Boipatong that night?

MR MTHEMBU: Yes, I am certain.

MR BERGER: He wasn't at the stadium and he wasn't part of the attacking group, of that you are certain?

MR MTHEMBU: No, I did not see him.

MR BERGER: Who then was in control of the guns at Kwamadala Hostel when Vanana Zulu wasn't there?

MR MTHEMBU: I would not know who was responsible for that Sir.

MR BERGER: Chairperson, perhaps at this point you would care to clear up that point.

CHAIRPERSON: Very well.

Mr Vanana Zulu, would you please stand up Sir.

MR VANANA ZULU STANDS UP

CHAIRPERSON: To the extent that there may be allegations made in these proceedings against you, you have the right to be present at these hearings and to dispute any such allegations that are made against you and if you so wish, to engage a legal representative to represent you. Do you understand those rights?

MR ZULU: Yes, I do.

CHAIRPERSON: Very well.

MR DA SILVA: Mr Chairman, if I might come in here. I am under the understanding - a number of notices have been sent to the IFP of implicated persons, I have been brought under the understanding that Mr Frederich, the representatives there on the other side are handling a watching brief for these persons.

MR STRYDOM: Chairperson, we would like to clarify this with Mr Vanana Zulu. For that purpose we would seek a short adjournment or we can resolve the situation after the adjournment at half past one but if it's important, if the Chairperson feels that we must sort it out now, I would ask for a short adjournment to sort it out now.

CHAIRPERSON: I think it is, so that if we do proceed we are at least assured that if Mr Zulu desires to be legally represented there is at least someone to look after his interests.

MR BERGER: I agree with that.

CHAIRPERSON: Yes. We will take a very short adjournment of about five minutes and then we will return to the hall to enable counsel to take instructions, if any from Mr Zulu as to his desire or otherwise to be represented, thank you.

COMMITTEE ADJOURNS

ON RESUMPTION

VICTOR MTHEMBU: (s.u.o.)

MR STRYDOM: Chairperson, my attorney has been instructed to appear on behalf of Mr Vanana Zulu, to look after his interests as well.

CHAIRPERSON: Mr Zulu, you do confirm that do you? Mr Zulu you do confirm that you now are legally represented in these proceedings? We have been told that you are now represented. Yes, thank you very much.

Thank you Mr Strydom.

Mr Berger, would you proceed please.

MR BERGER: Thank you Chairperson. Chairperson, following on from what was said just before the adjournment, if Mr Strydom and his attorney have a watching brief for the IFP and for other implicated persons, I would ask on behalf of the victims that that be disclosed to the Committee and that the names of the people on whose behalf there is a watching brief be disclosed.

CHAIRPERSON: Yes?

MR STRYDOM: Chairperson, we've been instructed to carry a watching brief for the IFP as well as members of the IFP possibly implicated in this matter.

CHAIRPERSON: Yes, very well.

RECORDING EQUIPMENT SWITCHED OFF

MR BERGER: Mr Strydom, just something that concerns me, a whole range of people were given Section 19(4) notices relevant to these proceedings and it may just help me, I don't know if it would help the rest of the Committee, to know which of those people that received 19(4) notices you are acting for in a watching brief type capacity, i.e. just covering their interests. You don't have to read them all out now, maybe you can just provide us with a schedule in due course but that may just help us know, I would simply like to know who specifically is represented and whose interests may not be covered so that we don't end up with a situation where someone's named at a later stage when we have to go through the same process again of just confirming that instruction.

MR STRYDOM: Chairperson, I'm not aware of all the notices that have been sent out, that the names I have seen in relation to notices are: Mr Themba Khoza, Mr Humphrey Ndlovu, Mr Gobela. Those are the names I can remember but I will make sure about that and I will let the Committee know.

CHAIRPERSON: ...[inaudible] understand the position regardless of any notices that might have been issued, you are looking after the interests of the IFP and any members of the IFP who might be implicated in the course of these proceedings?

MR STRYDOM: That is indeed so Chairperson, and in fact there was also a notice sent to the IFP as a party.

CHAIRPERSON: Yes.

RECORDING EQUIPMENT SWITCHED OFF

MR BERGER: You see Mr Strydom, what concerns me is just a general sense of representing people, you don't know whether they've actually instructed you or not and they may want someone else to represent them for all I know. We've already had a problem with Mr Lukhozi which you alerted us to. I'm just concerned that there may be conflicts of interest between different individuals and someone. This sort of blanket mandate isn't very desirable.

MR STRYDOM: Chairperson, I appear for the IFP and the members of the IFP on a watching brief basis and not in any other capacity and that is why I initially did not place that on record because I don't see the need to place yourself on record if you just carry a watching brief.

MR BERGER: That's fine, let's leave it at that.

CHAIRPERSON: Please proceed Mr Berger.

MR BERGER: Thank you Chairperson.

Mr Mthembu, could you turn please to page 6 of the papers, paragraph 8. You say there:

"These weapons were kept by Vanana Zulu and he hid them away. I saw these weapons when they were handed to us by Vanana Zulu one by one"

Do you see that?

MR MTHEMBU: Yes.

MR BERGER: When did this take place?

MR MTHEMBU: What I explained here relates to another era and not for what we are here about.

MR BERGER: When did this take place is my question.

MR MTHEMBU: I am explaining about something that happened at some other time. As my lawyer had explained, this did not happen when we went to attack Boipatong.

MR BERGER: I'm asking you a simple question, I'm just asking you to say when it happened.

MR MTHEMBU: It happened at another time. I cannot be specific about the date. There was - I thought we were talking or we were discussing Boipatong.

CHAIRPERSON: Was it before or after the attack on Boipatong?

MR MTHEMBU: After the Boipatong attack.

MR BERGER: Who handed out the weapons on the night of the Boipatong attack?

MR MTHEMBU: I would not know because I knew Mr Chonco to be responsible for the weapons.

MR BERGER: Are you saying you did not see anybody hand out any weapons on the night of the attack?

MR MTHEMBU: No, I did not see anybody.

MR BERGER: I'm going back now to that affidavit I was reading from. The last sentence we read, just to put you in the picture, said:

"At these meetings"

those are the Tuesday and Thursday meetings.

"we were informed when new weapons had arrived"

We've dealt with that. It goes on to say:

"The arms are brought by members of the Inkatha Freedom Party who arrive at the hostel from Natal. I have seen them arrive with AK47's and spears with poison tips"

Do you know anything about this?

MR MTHEMBU: No.

MR BERGER: You have never witnessed or heard of members of the IFP bringing weapons to the hostel, Kwamadala, from Natal?

MR MTHEMBU: No, I did not see it Sir.

MR BERGER: It continues - I'm sorry, as far as you're concerned all the weapons came from Vosloorus?

MR MTHEMBU: Yes.

MR BERGER:

"Some of those who arrived come to the area to work. However others come to carry out missions and attacks in the local township. Others come to bring arms and then leave"

Do you know anything about people who came to carry out missions and attacks in the local township?

MR MTHEMBU: No, I have no knowledge.

MR BERGER: Do you have any knowledge of any missions other than the - I'm not talking now about the Boipatong Massacre on the 17th of June 1992, do you have knowledge of any missions, whether by you or whether by anybody else, where attacks were carried out in the local township?

MR MTHEMBU: At that time there were many incidents that occurred that we would hear about on the radio. These attacks took place in the townships.

MR BERGER: Did the people from Umsinga ever go out on their own to carry out attacks in the local township?

MR MTHEMBU: I would not have knowledge of that Sir.

MR BERGER: At any time I'm talking about.

MR MTHEMBU: As I have mentioned that I cannot have or I do not have knowledge of it, I mean that exactly.

MR BERGER: Do you have knowledge of any members of the Umsinga contingent going out of the hostel at any time to shoot at the ANC or to shoot at members of the ANC?

MR MTHEMBU: No, I do not have knowledge about that.

MR BERGER: At any stage they went out, you have no knowledge?

MR MTHEMBU: No, I do not.

MR BERGER: Please have a look at page 14, paragraph 29. You say there:

"The hitsquad of Umsinga also went out several times on their own initiative to shoot members of the ANC"

What do you say about that Mr Mthembu?

CHAIRPERSON: What paragraph are you referring to?

MR BERGER: Paragraph 29 at the bottom of page 14.

CHAIRPERSON: Before you answer that, does this relate to the Boipatong incident or is it a subject of another application for amnesty?

MS PRETORIUS: Mr Chairperson, may just say that on page 14 there is a heading:

"1993"

It relates to things that happened in 1993 in the Sebokeng area. If that is of any help.

CHAIRPERSON: Yes, Mr Berger?

MR BERGER: Chairperson, first of all when this ...[intervention]

CHAIRPERSON: You can put the question.

MR BERGER: Mr Mthembu, do you remember the question?

MR MTHEMBU: Yes. What you actually asking about has nothing to do with the reason why we are here.

CHAIRPERSON: You see Mr Mthembu, the paragraph that has just been read over to you, that's were you say:

"The hitsquad in Umsinga also went out several times on their own initiative to shoot members of the ANC"

That's what he's asking you about.

MR MTHEMBU: Yes.

CHAIRPERSON: Well, what is your answer to that?

MR MTHEMBU: Yes, it did happen but it has nothing to do with why we are here today.

MR BERGER: Mr Mthembu, when you gave your evidence on Monday you were very careful to point out that pages 4 to 8 concern the Sebokeng attack and that pages 8 to 17 concern the Boipatong Massacre. More than that, I was very careful in the way that I asked you the question and I think on more than one occasion I said to you that my question related to at: "any time". I asked you: "At any time, did the members of the Umsinga contingent go out on their own initiative to shoot members of the ANC", and you said: "No". Do you recall that?

MR MTHEMBU: Yes, I do, but if you look from page 8 to page 12 it is specified that that is the Boipatong Massacre.

MR BERGER: Why did you say: "At not time did the members of the Umsinga contingent go out on their own initiative to shoot members of the ANC"?

MR MTHEMBU: Mr Berger, this happened a long time ago. I am not like a computer.

MR BERGER: To go back to this affidavit that I'm reading from, will you now agree with the sentence which reads:

"However"

Well let me go one sentence back:

"Some of those who arrived come to the area to work. However others come to carry out missions and attacks in the local township"

Will you now agree with that sentence?

MR MTHEMBU: I will not agree with something that I do not know about.

MR BERGER: When according to you did the members of the Umsinga contingent begin their initiatives, going out to shoot members of the ANC, when did that start?

MR MTHEMBU: I do not know when that began.

MR BERGER: The Umsinga contingent arrived in 1990 you told us.

MR MTHEMBU: I arrived at Kwamadala Hostel in 1990 and that's when I saw them. I do not know when they arrived at the hostel.

MR BERGER: Then just for clarity Mr Mthembu, is the reference on page 14 to a hitsquad also a typing mistake?

MR MTHEMBU: There is not a mistake but you should be careful of the year that is being referred to. The year in this page is 1993.

MR BERGER: So in 1993 they were a hitsquad?

MR MTHEMBU: Yes.

MR BERGER: In 1992 they were a self-defence unit?

MR MTHEMBU: ...[no English translation]

MR BERGER: Self-protection unit Mr Mthembu.

MR MTHEMBU: That is one and the same thing that we are talking about.

MR BERGER: A self-protection unit, I beg your pardon. Are you saying that a self-protecting unit and a hitsquad is the same thing?

MR MTHEMBU: ...[no reply]

MR BERGER: Sorry Interpreters, the question was: "Are you saying that a self-protection unit and a hitsquad are the same thing"?

INTERPRETER: It was asked.

MR BERGER: It didn't come through for some reason, maybe you forgot to press the button. Would you just repeat it please?

MR MTHEMBU: In my opinion I think we may use the self-protection unit and no the word: "hitsquad".

MR BERGER: Mr Mthembu, let's please try and get some certainty on this. On page 14, paragraph 29 you again use the word: "hitsquad". You told the Committee that is not an error, you meant to use the word: "hitsquad", correct?

MR MTHEMBU: We spoke about this yesterday. I don't know whether you do not understand it correctly.

MR BERGER: After you said to the Committee: "This was not a mistake", this particular one when I asked you, you then said: "But it's the time that I'm referring to. I'm referring to a later time". My question to you then was: "The contingent from Umsinga that you call a hitsquad in 1993, you call a self-protection unit in 1992 but it's the same thing", am I correct?

MR MTHEMBU: As I explained that this was a typing error. It was the self-protection unit, not that it changed in 1993, it was still the self-protection unit.

MR BERGER: So this at the bottom of page 14 is a typing error?

MR MTHEMBU: Yes.

MR BERGER: The affidavit then continues:

"During the four months that I have lived at the Kwamadala Hostel I have seen units being sent out on missions, however I have not known exactly where they have been sent to or what missions they have carried out"

I take it you can't comment on that?

MR MTHEMBU: No, I have no knowledge of that.

MR BERGER: The rest of the affidavit deals with the attack on the 15th of March 1992, and you've already told the Committee you have no knowledge of that. I just want to ask you one thing, there's an allegation here that the unit members were given arms by Buthelezi. Do you know of any Buthelezi who had access to the arms which were stored at Kwamadala Hostel?

MR MTHEMBU: I have no knowledge about that person.

MR BERGER: As far as your co-applicant Thembelani Buthelezi is concerned, he did not have access to the guns and the weapons stored at the Kwamadala Hostel?

MR MTHEMBU: I have no knowledge about that, I only knew him to be the Chairman.

MR BERGER: Well, he was also part of your unit, you would have known if he had access to guns would you not?

MR MTHEMBU: No, I would not have known.

MR BERGER: On the night of the massacre, 17 June 1992, you say you did not see any guns being handed out, is that correct?

MR MTHEMBU: Yes, that is correct.

MR BERGER: Did you see any people carrying guns that night?

CHAIRPERSON: Apart from those who were in his company which he has already told us about.

MR BERGER: Yes.

Apart from Mr Chonco and Mr Khanyile I believe it was.

MR MTHEMBU: As I've already explained before I had gone as part of the attack on the ANC and not to check maybe as a journalist as to who had what, who did what at what time.

CHAIRPERSON: It would help us a great deal Mr Mthembu, if you just confine yourself to answering the question. If you did not see any other persons carrying firearms please say so. I think it will help us to shorten this proceeding, rather than to keep on making comments.

MR MTHEMBU: I did not see anybody else.

MR BERGER: Let's get certainty Mr Mthembu. Besides Mr Khanyile, besides Mr Chonco, you did not see any other person carrying any other firearm that night, correct?

MR MTHEMBU: That is correct.

MR BERGER: You did not see anybody carrying an AK47?

MR MTHEMBU: No, I did not.

MR STRYDOM: Can I just object here, I just want to put something right. Initially Mr Khanyile's name wasn't mentioned, it was Mr Mabote's name that was mentioned. So it wasn't Khanyile, although his name was mentioned today but initially the name that was mentioned was Mabote.

MR BERGER: Well Mr Mthembu, then let's get certainty on that. Did you see Mr Mabote carrying a gun?

MR MTHEMBU: Yes.

MR BERGER: What gun was he carrying?

MR MTHEMBU: He had a small gun.

MR BERGER: Mr Chonco, he was carrying a gun?

MR MTHEMBU: Yes, he had a gun.

MR BERGER: What gun did he have?

MR MTHEMBU: An AK47.

MR BERGER: Mr Khanyile was he carrying a gun?

MR MTHEMBU: I don't remember what weapon he had.

MR BERGER: Alright. Besides those three men you did not see anyone else carrying any gun the night of the attack, correct?

MR MTHEMBU: That is correct Sir, I did not see anybody else.

MR BERGER: That is before, during or after the attack you did not see?

MR MTHEMBU: That is correct.

MR BERGER: Nobody?

MR MTHEMBU: There was no-one besides the ones that I have mentioned to you.

MR BERGER: Let me read to you what you say at page 37, paragraph 6:

"We sang songs and we went out through the only main gate of Kwamadala Hostel. We went straight under the bridge across the road and entered Boipatong. All these people who came from Umsinga were holding the machine guns such as AK47 rifles"

MR MTHEMBU: I have just told you that Mr Chonco is the person who had the AK47.

MR BERGER: Mr Mthembu, I'll read it again to you, the sentence that really concerns me and you will recall in your affidavit you said there were 40 to 50 people from Umsinga and in this paragraph you now say:

"All these people who came from Umsinga were holding the machine guns such as AK47 rifles"

All, not Mr Chonco, all.

MR MTHEMBU: I don't think you clarify this when you say 40 to 50 people. What I know is that the 40 to 50 people were protecting the community of Kwamadala, not that all of them went to attack at Boipatong.

CHAIRPERSON: Mr Mthembu, the point is this, you told us that the only persons that you saw carrying guns that night were the individuals that you've mentioned, I think you mentioned Mabote and another person. Now in your affidavit you state that there people from Umsinga who were carrying machine guns, do you see the difference?

MR MTHEMBU: Yes, I do.

CHAIRPERSON: That's what counsel wants you to explain.

Is that right?

MR BERGER: Yes, Chairperson.

MR MTHEMBU: I'll explain that. What happened is that I do not mean that all these people had guns but because Mr Chonco was one of the people from Umsinga he is the person that I saw carrying a gun but I cannot say that I saw the others with the guns because there were many people at that gathering.

CHAIRPERSON: You see counsel wants to find out the following: You told us that the only persons that you saw carrying firearms that night were the individuals that you've mentioned which about two I think it is, but in your affidavit you indicate that people from Umsinga as well also had firearms and you give the number as being, well, the point is that you also mention that there were people from Umsinga who also had machine guns. In other words, it was not only these two individuals that you mentioned who had firearms but there were other people including the people from Umsinga who had firearms, is that right?

MR MTHEMBU: I did not fully understand whether you meant whether these people were present in the attack or were merely present residing at the hostel.

CHAIRPERSON: You gave us two individuals who you say had firearms, okay.

MR MTHEMBU: Yes.

CHAIRPERSON: Apart from those two individuals were there any persons in the group that attacked Boipatong who had firearms?

MR MTHEMBU: Yes, there were other people who had guns but I cannot say who they were.

CHAIRPERSON: So there were other individuals?

MR MTHEMBU: Yes, there were but I don't know who they are because it was at night and I could not see clearly who had what gun.

MR BERGER: But you knew that those people that had the guns were the people from Umsinga.

MR MTHEMBU: Not only the people from Umsinga were launching the attack but many of us from the hostel were also part of this attack.

MR BERGER: Mr Mthembu, in paragraph 6 you state as a fact that the people from Umsinga were holding AK47's, all of them.

MR LAX: To correct you Mr Berger, he says:

"They were holding machine guns like AK47's"

So there might have been other kinds of machine guns but I just don't want to put wrong words in his mouth.

MR BERGER: Thank you Mr Lax.

The people from Umsinga, all of them you saw were holding machine guns?

MR MTHEMBU: Mr Berger, you don't understand, not only the people from Umsinga were going out on this attack, that you should know. We went there in large numbers. I'm talking here about residents from Kwamadala Hostel, they went out the attack. I don't know really what it is that you want.

MR BERGER: Are you saying that the only person you saw with an AK47 was Mr Chonco or are you saying that you saw many people carrying AK47's?

MR MTHEMBU: Sir, I am saying here that some of the people in our company had guns but the one person that I saw with an AK47 was Mr Chonco and I therefore cannot answer to other people carrying guns when I did not see the guns.

MR BERGER: Please listen carefully to my question. Did you that night either before, during or after the attack, see a lot of AK47's?

MR MTHEMBU: Yes, that is correct.

MR BERGER: Where did you see them?

MR MTHEMBU: At the stadium.

MR BERGER: Who was carrying them?

MR MTHEMBU: They were on the ground, nobody was carrying them.

END OF TAPE - POSSIBLE WORDS LOST

MR MTHEMBU: They were sprinkled with some traditional medicine and others took the guns away and we went out on the attack.

MR BERGER: Who took the guns when you went out on the attack?

MR MTHEMBU: I would not have knowledge of that Sir.

MR BERGER: There were people that you saw taking these guns but you don't know who they were, is that what you're saying?

MR MTHEMBU: Sir, I am trying to explain here that as the people were leaving the stadium to go and attack I was also concentrating on what I had to do.

MR BERGER: Let me come back to the beginning then Mr Mthembu. Why when I asked you whether you saw anybody carrying a firearm that night, either before, during or after the attack, did you not mention the men from Umsinga who you saw holding machine guns? Why didn't you mention that?

MR MTHEMBU: I don't know really what you want me to say now.

MR BERGER: Mr Mthembu, I'm putting to you once again that you are deliberately being selective with what you disclose. You are deliberately holding back relevant information relating to the Boipatong attack.

MR MTHEMBU: Mr Berger, I came before this Commission here because I want reconciliation between myself and the residents of Boipatong. There is nothing else that I am holding back. I am just disclosing here what information I have.

MR BERGER: When I asked you to disclose the various committees to the Committee, the various committees at Kwamadala, you mentioned the Senior Committee, you mentioned the Youth Committee, we've now dealt with the hitsquads, I want to ask you about another committee, the Amabutho, do you know about them?

MR MTHEMBU: No, I don't know them.

MR BERGER: Have you heard the word: "Amabutho"?

MR MTHEMBU: I did hear the name before back home. There is a place where these Amabutho gather.

MR BERGER: Is that the only meaning that you can attach to the word: "Amabutho", it's a place where certain people gather in Natal?

MR MTHEMBU: Yes, Sir.

MR BERGER: You don't know that Amabutho means warriors?

MR MTHEMBU: No, I don't know about that.

MR BERGER: Mr Mthembu, is Zulu not your mother tongue?

MR MTHEMBU: It is.

MR BERGER: Do you know Mr Bhekinkosi Mkhize?

MR MTHEMBU: Yes, I know him.

MR BERGER: Was he not the leader of the Amabutho at the Kwamadala Hostel?

MR MTHEMBU: I don't know whether he was a leader or not.

MR BERGER: Was he a member of the Amabutho at the Kwamadala Hostel?

MR MTHEMBU: I don't know Sir. As I have explained, I really don't know whether he was a member or not. It was not my duty to know what he was and what he was not.

MR BERGER: Were you a member of the Amabutho at the Kwamadala Hostel?

MR MTHEMBU: As I have explained Sir, that I was a member of the youth.

MR BERGER: Do I understand your evidence that you know absolutely nothing about the Amabutho at the Kwamadala Hostel?

MR MTHEMBU: Yes, I don't have knowledge to that effect.

MR BERGER: And if Mr Mkhize says that the Amabutho are a senior committee of the IFP, you will say you know nothing about that?

MR MTHEMBU: Yes, I know nothing about this.

MR BERGER: And if he says that Mr Damarra Chonco was a member of the Amabutho you have no knowledge of that?

MR MTHEMBU: Yes.

CHAIRPERSON: There was a committee in Kwamadala which was referred to as the Senior Committee, were you aware of that?

MR MTHEMBU: Yes, I know that.

CHAIRPERSON: What was the Zulu word for that Committee?

MR MTHEMBU: I don't have a word or a name. I don't know how to put it. I don't have an alternative in isiZulu. It was a Senior Committee.

CHAIRPERSON: I do understand ...[intervention]

MR MTHEMBU: ...[no English translation]

CHAIRPERSON: Is that how it was referred to, ...[indistinct]?

MR MTHEMBU: I am referring to it as a Senior Committee. For example when a meeting was to be held these are the people who had to give us permission.

CHAIRPERSON: It didn't have any specific name apart from being referred to as a Senior Committee?

MR MTHEMBU: No, I don't have knowledge.

MR BERGER: Is it your evidence that Mr Mkhize was not a leader in the hostel, Bhekinkosi Mkhize?

MR MTHEMBU: I don't understand Sir.

MR BERGER: You remember yesterday I asked you for the names of the leaders in the hostel. You told the Committee that Mr Khumalo and Mr Vanana Zulu were the leaders of the Senior Committee, you told the Committee that Mr Buthelezi, Mr Mthembu, yourself, and Ntzwee were the leaders of the Youth Committee.

MR MTHEMBU: Yes.

MR BERGER: According to you there are no other committees, correct?

MR MTHEMBU: Yes, I don't know of any other committee.

MR BERGER: So I'm asking you, is it your evidence that Mr Mkhize was not a leader within the hostel?

MR MTHEMBU: No.

MR BERGER: No, he was not or no, that was not your evidence?

MR MTHEMBU: I mean as far as I know yesterday I mentioned people's names whom I knew were in the committee.

MR BERGER: And you know Mr Mkhize?

MR MTHEMBU: Yes, I know him.

MR BERGER: Let me read to you what he says at page 70, paragraph 4.2:

"The political structures were the senior men and the youth. The political structures had nothing to do with the management structure in the hostel"

4.3:

"The youth was responsible for the organisation of rallies whilst the senior structure was responsible for discipline within the IFP party as well a decision making that relates to the IFP within the hostel"

4.4 "The steering committee was ultimately responsible to Iscor. The structure I was the leader of was called Amabutho and in that capacity I was the leader of the IFP in the hostel"

You never knew that, is that your evidence?

MR MTHEMBU: No, I didn't know that.

MR BERGER: According to you, who was the leader of the IFP in the hostel?

MR MTHEMBU: Mr Vanana Zulu.

MR BERGER: As far as you knew, Mr Bhekinkosi Mkhize held no position of leadership in the hostel at all?

MR MTHEMBU: Yes, Sir.

MR BERGER: And yet according to you he was one of two people who gave the instruction to attack Boipatong. How is that possible Mr Mthembu?

MR MTHEMBU: That is possible because our own people were dying, he too may have said that we should go out and attack.

MR BERGER: Who made the decision to attack Boipatong?

MR MTHEMBU: I can explain here that decisions were taken by each one person who had already suffered, any Kwamadala Resident. They knew how people were being necklaced and there had come a time to show the people of Boipatong that we too were human just like them and we could not stand aloof as our people were being necklaced.

MR BERGER: Mr Mthembu, who made the decision to attack this Vaal community?

MR MTHEMBU: It was Mr Chonco.

MR BERGER: At page 19 you were asked the question, paragraph 17.1:

"Who made the decision to attack a Vaal community"?

Your answer, page 29, paragraph 17.1:

"To my best knowledge Mr Vanana Zulu and Mkhize made the decision to attack the Vaal community"

MR MTHEMBU: You are talking about something else here, you are talking about the Vaal community, you're not talking about the Boipatong matter anymore.

MR BERGER: Which decision are you referring to here?

MR MTHEMBU: Here I am referring to - you asked me as to who took the decisions to attack the people in Boipatong and I explained to you and I really don't know how else you want me to explain here.

MR BERGER: You say that this answer at page 29 relates to another decision, not the decision to attack Boipatong. I'm asking you which decision is this now that you are referring to?

MR MTHEMBU: Here I am referring to the decision to attack Boipatong.

MR BERGER: I'm talking about paragraph 17.1 where you say:

"To my best knowledge, Mr Vanana Zulu and Mkhize made the decision to attack the Vaal community"

Let me ask you this question then, that decision that you are referring to in 17.1, when was it taken?

CHAIRPERSON: Mr Berger, I think in fairness to the witness please do point out that the response that occurs at the pages that you've drawn his attention to are in response to questions which occurs on page 19.

MR BERGER: I've done that.

CHAIRPERSON: Yes. 17.1 deals with the Vaal community. 17.2 deals with the Vaal community and then 17.3 then deals with Boipatong and then if you look at 17.3 he says in his statement:

"Mkhize became angry and agreed with Mr Chonco to attack the residents of Boipatong"

MR BERGER: Yes.

CHAIRPERSON: And that's how I understood his evidence so far, that the decision to attack Boipatong was taken by Chonco and Mkhize.

MR BERGER: Chairperson, the question in 17.1 is:

"Who made the decision to attack a Vaal community"?

CHAIRPERSON: Well I don't know whether we can take the matter any further that this because it becomes clear here that a distinction is being made as to took the decision to attack which part.

MR LAX: Sorry Mr Mthembu, maybe you can just help us here. A question was asked of you in the request for further particulars, referring to a Vaal community, you understand that, not the Vaal community, a specific Vaal community. Which community did you understand you were replying to when you gave your lawyers instructions to answer that question?

MR MTHEMBU: Here I was explaining about incidents that happened in the Vaal community, Boipatong included, Sebokeng included. When we're talking about the Vaal community I think we are talking about the community in that area.

MR LAX: Mr Berger's question is then to you, if you thought it was a general meeting at which a decision was taken to attack the Vaal community in general terms, when was that meeting? That is what he's asking you. It's not a meeting to attack Boipatong, it's a meeting to attack in general terms and you give a specific answer and he wants to know - and it will help us a great deal if you can help us, when was that meeting? Which is different from the Boipatong specific meeting, on your evidence so far. Can you help us there perhaps?

MR MTHEMBU: I do not have knowledge about that meeting Sir.

MR BERGER: Well then why do you say:

"To my best knowledge, Mr Vanana Zulu and Mkhize made the decision to attack the Vaal community"

MR MTHEMBU: I am saying this because there were people who were older than us, that is at the hostel, and if they too had come to realise that it is enough, the pain is enough it was therefore upon themselves too to indicate that we should attack the people who were killing our people.

MR BERGER: So your leaders, am I right then, your leaders in the hostel took a decision at some time before the Boipatong attack, took a decision in general terms: "We are now going to launch attacks on the Vaal community, be it Sebokeng, Boipatong, Sharpeville, wherever. In general, we are now going to launch attacks, the leaders decided that", correct?

MR MTHEMBU: Even though I did not hear them decide but everybody who was a resident at Kwamadala Hostel had already suffered a lot of harassment from the people or by the people at the Vaal community or of the Vaal community.

MR BERGER: But you see Mr Mthembu, when you were asked a question and you understood that question meant a decision to attack the Vaal community, you identified two people, Vanana Zulu and Mkhize as being the people who took that decision.

MR MTHEMBU: Yes.

MR BERGER: My question to you is, why did you identify those two people?

MR MTHEMBU: I am explaining this because Mr Zulu was in charge of us at the hostel and every hostel resident had grown tired of what was happening to them..

MR BERGER: You see Mr Mthembu it's really very simple, and I don't know why you don't want to say this, but if Mr Mkhize was not a leader why did you mention him in paragraph 17.1?

MR MTHEMBU: I am referring to him here because he too was a resident at the hostel and he too was suffering the same pain at the hands of the township residents.

CHAIRPERSON: You were not present when the decision to attack a Vaal community or the Vaal community was taken.

MR MTHEMBU: No, Sir.

CHAIRPERSON: You don't know who took that decision but you assumed that is must have been the senior people?

MR MTHEMBU: Yes, Sir, that is correct.

CHAIRPERSON: Who were in the position of leadership?

MR MTHEMBU: That is correct Sir.

CHAIRPERSON: If that is so, Mkhize must have been a leader, he was a leader of what?

MR MTHEMBU: ...[no English translation]

CHAIRPERSON: He was a leader of what?

MR MTHEMBU: Mr Berger is reading here that he was a leader of Amabutho.

CHAIRPERSON: But that's the assumption you made.

MR MTHEMBU: What I am saying here is because Mr Berger had just read to me from Mkhize's statement.

CHAIRPERSON: Yes, I understand that but all I want to find out is this, the answer that you gave suggests that you were assuming that a decision to attack the Vaal community must have been taken by persons who were in a leadership position. You do say:

"To the best of your knowledge"

MR MTHEMBU: Yes, that is according to my knowledge because the decision was taken by people at top ranks.

CHAIRPERSON: Yes, very well. Now at the time you made that statement, in your mind what leadership position did Mr Mkhize hold at the time?

MR MTHEMBU: As far as I know I did not have knowledge about his position.

CHAIRPERSON: Okay. Was he an influential person perhaps within the Kwamadala Hostel?

MR MTHEMBU: No, he was a respected person because he was an elderly.

MR BERGER: He was an elderly person so he was respected?

MR MTHEMBU: Yes.

MR BERGER: But he was not a leader, he was not one of the leaders?

MR MTHEMBU: As far as I know Sir, as I have explained I did not have knowledge about that.

MR BERGER: Mr Mthembu, who were the commanders in chief of the attack on Boipatong on the 17th of June 1992?

MR MTHEMBU: As I have explained Sir, that Mr Chonco was the person who was in charge of the attack at Boipatong.

MR BERGER: And what about Mr Mkhize? Was he in charge, also in charge of the attack?

MR MTHEMBU: I have no knowledge. What I can say is that he was present at the stadium where we were addressed about the fact that we were going to launch an attack on Boipatong.

MR BERGER: The question is simple Mr Mthembu, was Mr Mkhize a commander of the attack or not?

MR MTHEMBU: No, I don't have knowledge about that Sir.

MR BERGER: At page 19, question 16 you were asked:

"Who between Mr Bhekinkosi Mkhize and Mr Damarra Chonco was commander in chief of the attackers on 17 June 1992 in Boipatong"?

Your answer, page 28, paragraph 16:

"Both of them were the commanders of the Boipatong attack on the 17th of June 1992"

Do you have any explanation for that Mr Mthembu?

MR MTHEMBU: As I have explained here that Mr Chonco was the person in charge and I also indicated that Mkhize was also present at the stadium just before we left on the attack.

CHAIRPERSON: At the stadium, did Mr Chonco address you or address the people who had gathered there?

MR MTHEMBU: That is correct.

CHAIRPERSON: Mr Mkhize, did he address them as well?

MR MTHEMBU: I don't remember Sir, whether he addressed us or not.

MR BERGER: Chairperson, I'm no moving onto another section, thank you.

CHAIRPERSON: We intend rising at one thirty, so perhaps closer to the time you will indicate when it is appropriate for you to do so.

MR BERGER: I will.

CHAIRPERSON: Yes, very well, thanks.

MR BERGER: Mr Mthembu, I want you now to try an be as specific as you can. You've said that at some point a decision was taken to attack the Vaal community, we're now talking a number of townships, correct?

MR MTHEMBU: Yes, that is correct.

MR BERGER: You don't know when that decision was taken, can you tell the Committee how many months before the attack on Boipatong was that decision taken?

MR MTHEMBU: I do not have knowledge about that.

MR BERGER: You cannot say whether it was two weeks before the attack or two months or two years before the attack?

MR MTHEMBU: I would not have knowledge about that Sir.

MR BERGER: Why was the decision taken? And please try and be very careful in your answer, why was the decision taken to attack the townships of the Vaal if I can put it that way.

MR MTHEMBU: As far as I know it was because there were many people from our organisation who had been burnt in the townships. There had been several incidents of this nature. Even in the town people would be abducted and burnt. I think that was the reason why people were eventually attacked.

MR BERGER: Mr Mthembu, that's why I ask you please to concentrate on my questions. I'm asking you why the decision was taken to attack the townships of the Vaal, not the decision to attack Boipatong. Do you see the difference?

MR MTHEMBU: As I'm explaining it to you Sir, as far as I know I think it was taken because there were some of our people who were being burnt down in the townships.

MR BERGER: Now when did that start, the killing of IFP members in the townships?

MR MTHEMBU: As far as I know we started suffering in July 1990, after we had held a meeting in a stadium in Zone 7. From then onwards we started encountering problems, like people going to work would be abducted and be burnt in the township.

MR BERGER: You say: "in the township", which township are you referring to?

MR MTHEMBU: I am talking of townships such as Sharpeville.

MR BERGER: And which others?

CHAIRPERSON: I'm sorry, the meeting that you're referring to which was held at Zone 7, is that right? Was that in Sebokeng?

MR MTHEMBU: Yes.

CHAIRPERSON: Alright. Was that the meeting of the IFP?

MR MTHEMBU: Yes, Sir, that is correct.

CHAIRPERSON: Was that the first meeting of the IFP in Sebokeng?

MR MTHEMBU: As far as I know it was the first meeting in Sebokeng.

MR BERGER: Thank you.

These attacks that you are talking about are attacks that took place in Sharpeville?

MR MTHEMBU: What I'm explaining Sir is that that is one of the areas of which I heard that our people were being terrorised but our people were also being terrorised in other townships in the Vaal Triangle.

MR BERGER: Well, let's be more specific then, when was the decision taken to attack Boipatong?

MR MTHEMBU: As far as I know there were people in the Boipatong township who had families there and on their way to their homes they would be abducted and necklaced such as a Mr Gazu that I can still remember and another boy, Mbatha boy, who had also been killed in Boipatong. It then came to a point where it was discussed that these attacks were now continuing on our people.

CHAIRPERSON: I think the question that you're being asked is this: when was the decision to attack Boipatong taken and the date if you know?

That is your question, is that right Mr Berger?

MR BERGER: Yes, yes indeed.

MR MTHEMBU: I would not have knowledge Sir, on when the decision was taken.

MR BERGER: When did you become aware of the decision to attack Boipatong?

MR MTHEMBU: I knew about it when I had already arrived at the stadium.

MR BERGER: This was on the night of the 17th of June?

MR MTHEMBU: That is correct Sir.

MR BERGER: Now the people who were killed in Boipatong, if I understand you correctly Boipatong was selected as a target for attack because members of the IFP had been killed in Boipatong, is that your evidence?

MR MTHEMBU: Yes, Sir.

MR BERGER: The people who you say were killed in Boipatong are one, Gazu ...[intervention]

MR MTHEMBU: ...[no English translation]

MR BERGER: Gazwe?

MR MTHEMBU: Gazu.

MR BERGER: Gazu. And am I correct, you mentioned Mbatha?

MR MTHEMBU: Yes, one of them was a boy from the Mbatha family in Mashlabateni.

MR BERGER: Anybody else that you say was killed in Boipatong or are these two the only two?

MR MTHEMBU: I'm only naming those that I know or those that I remember. I cannot mention others because I do not know them.

MR BERGER: And you do not know of them either, you do not know of any other killings other than Gazu and Mbatha.

MR MTHEMBU: No, I do not.

CHAIRPERSON: Well the question is, apart from Gazu and Mbatha, were there any other IFP persons who were killed in Boipatong but whose particulars you don't know?

MR MTHEMBU: I am trying to explain that there were others that were killed but whose or details I do not know.

MR BERGER: Do you know when Gazu was killed?

MR MTHEMBU: Although I may not remember but it was before the attack on Boipatong.

MR BERGER: How long before the attack, one week, one month, one year?

CHAIRPERSON: Is there an issue as to whether Gazu or Mbatha were killed in Boipatong?

MR BERGER: Indeed yes.

CHAIRPERSON: Is the evidence that there were no such deaths, these individuals were not killed in Boipatong?

MR BERGER: Well Chairperson, the first time that we've had any particularity on who was killed is now.

CHAIRPERSON: Yes, but I just want to find out, is it an issue that these two individuals were killed in Boipatong?

MR BERGER: Yes, yes it is.

CHAIRPERSON: What is the issue, is it that they were not killed?

MR BERGER: Well Chairperson, I have consulted on this specific issue ...[intervention]

CHAIRPERSON: I know that but I want to know so that we can give the witness the opportunity to know what is it that is an issue about this.

MR BERGER: Chairperson, on the basis of the instructions that I have so far these two names are not mentioned. I cannot now say as a matter of fact I'm disputing it, I'll have to take instructions on that but on the instructions that I have thusfar there is no Gazu and there is no Mbatha.

CHAIRPERSON: We're not here to decide whether or not Mbatha was killed or Gazu in Boipatong. We're here about whether or not these individuals are entitled to amnesty in regard to the killings in Boipatong. This is why I'm trying to limit the scope of the inquiry. If you have the information which differs from what the witness says, please put it to him so that he can have the opportunity. I understand that on the instructions you have, these two names do not appear.

MR BERGER: Thank you Chairperson.

Mr Mthembu, on the instructions I have up to this point there is no Gazu and no Mbatha who were killed in Boipatong, are you adamant that those two were killed in Boipatong before the attack?

MR MTHEMBU: Yes, I am certain that these people were killed in Boipatong.

MR BERGER: I now want to read to you from certain confessions which were made at the time of the massacre. This is a confession which was made by Bhekinkosi Mkhize.

MR STRYDOM: May I intervene at this stage Chairperson. It's my instructions that that confession is not an admissible confession in terms of the Constitution and in terms of the Criminal Procedure Act. In fact the State prosecutor during the trial elected not to use those confessions on - well I can't say on that basis, but we opposed the admissibility of those confessions and we still maintain that those confessions are inadmissible evidence.

MR BERGER: Chairperson, this very issued was argued at the Amnesty Hearings into the death of Mr Chris Hani and it was ruled then that any confessions, any statement that has been made can be used for the purposes of cross-examination in an Amnesty Hearing.

CHAIRPERSON: That issue is before this Committee, not then. We want to hear argument now as to why you say it is.

MR BERGER: Well there is a statement here, on the face of it it was made freely and voluntarily. There is nothing in this document to suggest that it's not a document signed by Mr Nkosi, Mr Mkhize, I beg your pardon. The purpose of these inquiries I would submit is to get to the truth, to ensure that there is full disclosure and here is a document which I submit is highly relevant to the issues that this Committee has to decide.

CHAIRPERSON: What's the position of Mr Mkhize in regard to this document?

MR STRYDOM: I must take specific instructions in this regard. I can just rely on my memory. My instructions previously were that that confession was not freely and voluntarily made.

CHAIRPERSON: Well shouldn't you take instruction from your client and let us know what the basis is upon which this is being, we can sit here and you can just take those instructions now. Will you be able to do that?

MR STRYDOM: I can do it but I firstly haven't go the confession at hand so I'll have to get it. I haven't got it in my possession right now.

CHAIRPERSON: Yes.

MR STRYDOM: It makes it a bit difficult. I see it's twenty six minutes past already and as the Chairman indicated to take the adjournment at half past, so with the leave of the Chairman I would do it over the weekend.

CHAIRPERSON: Okay. We will leave aside for the moment the question of the confession and then would you go on with other ...[inaudible]

END OF TAPE - POSSIBLE WORDS LOST

CHAIRPERSON: ...[inaudible] and come and tell us the basis if any upon which there is an objection to the use of the statement.

MR BERGER: I shall Chairperson.

CHAIRPERSON: Yes, very well.

MR BERGER: Chairperson, I would then like to refer the witness to another confession not made by any of the applicants.

CHAIRPERSON: Would you refer to others matters other than the confession. Do you have other questions on other matters not on confessions?

MR BERGER: I do Chairperson. It's twenty seven minutes past one ...[intervention]

CHAIRPERSON: Okay. Perhaps, why don't you refer to those other matters and then the question of the confession will then be argued first thing on Monday and then we can go on with issues relating to the confessions. That confession, does it relate to one of the persons who are applicants here?

MR BERGER: No, it's not, it's not a confession by an applicant.

CHAIRPERSON: Well I think it would be proper to deal with the question of confessions thereafter. Perhaps you should continue with other questions which are not related to the confessions.

MR BERGER: Chairperson, even if this document on the face of it, is freely and voluntarily made.

CHAIRPERSON: All confessions are.

MR BERGER: All confessions.

CHAIRPERSON: Mr Berger?

MR BERGER: I'm back on track.

CHAIRPERSON: Yes, very well. I just want to mention one point.

Mr Strydom, once you've taken instructions from your client, as soon as possible would you indicate to Mr Berger the basis upon which there will be any objection if any?

MR STRYDOM: I will do so Chairperson.

CHAIRPERSON: So that he can prepare himself accordingly.

MR STRYDOM: Yes, very well.

MR BERGER: Thank you Chairperson. I will have to leave that whole section that I was cross-examining on because the confessions fall into something else.

I will move now Mr Mthembu to the question of SADF involvement in the attack. You've told the Committee about the presence of SAP vehicles, you remember?

MR MTHEMBU: Yes, I remember.

MR BERGER: And you said that as you were going past the vehicles you saw the police, they must have seen you, they did nothing to stop you.

MR MTHEMBU: That is correct.

MR BERGER: That was during the attack, am I right?

MR MTHEMBU: It was after the attack as we were returning.

MR BERGER: I will come to the police in a moment, let's deal with the SADF. Are you saying that there was no SADF involvement in the attack at all?

CHAIRPERSON: A broad question.

MR BERGER: Alright, I'll ...[intervention]

CHAIRPERSON: Perhaps you should - yes, please.

MR BERGER: Alright.

Was the army present either before, during or after the attack on Boipatong that night?

MR MTHEMBU: As I've explained, when we left Boipatong as we were about to cross the road near the garage, that is where I became aware that there were soldiers standing around there, some near the robots.

MR BERGER: This is now as you're leaving Boipatong?

MR MTHEMBU: Yes.

MR BERGER: Did you leave through Umzumgogo Street, is that the street you left on?

MR MTHEMBU: I think we left through the ...[indistinct] National Board.

MR BERGER: ...[inaudible] next to those factories that you saw the soldiers.

MR MTHEMBU: It was not close by but there is a garage near the robots where I saw army vehicles parked there.

CHAIRPERSON: ...[inaudible]

MR MTHEMBU: No, I do not.

CHAIRPERSON: You mentioned that you also saw the police.

MR MTHEMBU: Yes.

CHAIRPERSON: ...[inaudible] to the army, where were the police?

MR MTHEMBU: As I've explained, army vehicles and SAP vehicles, I saw both these vehicles, they were all parked near these factories near the garage.

CHAIRPERSON: Yes.

MR BERGER: So the police and the army were parked together?

MR MTHEMBU: Yes, that's how I would put it, it was in one area.

MR BERGER: What do you say about an allegation that one of your comrades shot at an army vehicle?

CHAIRPERSON: That is during the attack?

MR BERGER: During the attack yes.

CHAIRPERSON: Yes.

MR MTHEMBU: I have no knowledge about that Sir.

MR BERGER: You saw no army vehicle inside Boipatong?

MR MTHEMBU: No, I did not see any inside Boipatong.

MR BERGER: Did you see any police vehicles inside Boipatong?

MR MTHEMBU: No.

MR BERGER: Did you see any policemen inside Boipatong?

MR MTHEMBU: No, I did not.

MR BERGER: Did you see any whites inside Boipatong?

MR MTHEMBU: No, I did not.

MR BERGER: I take it you didn't see any white policemen inside Boipatong either?

MR MTHEMBU: No, I did not.

MR BERGER: During your criminal trial, it was part the defence case, your case, that there were members of the South African Police and in particular white members of the South African Police involved in the attack, is that correct?

MR MTHEMBU: I have no knowledge of that Sir.

MR BERGER: But it was part - let me read to you from page 3724, from the Judgment of the Court.

It's at page 276 of the bundle Chairperson, line 11:

"Soos reeds van tevore gemeld, ontken die beskuldigdes dat hulle enige aandeel gehad het in die aanval op Boipatong gedurende die aan van 17de Junie 1992. Uit hoofde van hulle verweer beweer die beskuldigdes dat hulle nie in staat is om te vermeld wie verantwoordelik was vir of meegedoen het aan die aanval nie maar vermeld hulle tog dat daar na die aanval gerigte was dat die Suid Afrikaanse Polisie en meer in besonder blanke lede van die Suid Afrikaanse Polisie betrokke was. Die Staatsgetuies is met bewerings van ooggetuies wat polisie betrokkenheid tydens die sitting van die Goldstone Kommissie beweer het gekonfronteer en tydens die verdedigingssaak is twee getuies, ene Selo en ene Mabuza geroep om polisie betrokkenheid te bewys"

Now my question to you is, first of all do you confirm that it was part of your case in the criminal trial that there was police involvement and in particular the involvement of white policemen during the attack, that that was your case?

MR MTHEMBU: As I have explained Sir, I do not have knowledge about the presence of the police. I did indicate that I did not see policemen inside the township.

MR BERGER: Do you confirm that it was part of your case that there was such police involvement and in particular involvement by white policemen?

MR MTHEMBU: I am saying I have no knowledge about that.

MR LAX: Just explain to the witness. You know to us lawyers it's easy to know what it means: "it was part of your case" but to a lay person it's not very apparent what that means. If you could just explain what you mean by that then he'd be able to give you a direct answer I think.

CHAIRPERSON: Yes, and also in regard to what is meant by: "involvement". Involvement in the sense that the police were there but you know, but they just stood there without taking any action or whether they were also amongst the people who were attacking. I think that's what would maybe help. Bearing in mind that when you tell us we will rise.

MR BERGER: Chairperson, I'm quite happy to tell Mr Mthembu what I mean and I'll do that now but as far as the actual involvement of the police, I would have to check the record on that and so I will ask that I do that on Monday.

CHAIRPERSON: I think the proper thing to do probably is for you to get a sense, to go back to the record and find out what was that degree of involvement that was mentioned so that you can put that to the witness.

MR BERGER: What was put on behalf of the defence?

CHAIRPERSON: Yes, indeed.

MR BERGER: I will do that.

CHAIRPERSON: Yes, I think so.

MR BERGER: Thank you.

CHAIRPERSON: Have you run out of questions now?

MR BERGER: No, Chairperson, I haven't.

CHAIRPERSON: So far?

MR BERGER: But I think this would be an appropriate point to take the adjournment.

CHAIRPERSON: Yes, very well, so that you canvass this other matter. We're thinking of 9 o'clock on Monday.

MR BERGER: To start?

CHAIRPERSON: To start.

MR BERGER: Yes, yes, that's alright.

CHAIRPERSON: 9 o'clock yes. Mr Brink, 9 o'clock on Monday"

MR BRINK: I'm very happy with that.

CHAIRPERSON: Yes, very well. At this stage these proceedings are then adjourned until Monday at 9 o'clock.

Thank you Mr Mthembu. I just want to remind you that you're still under oath and you are not required to discuss this case with anyone else whilst you're still under oath, do you understand that? Very well.

WITNESS EXCUSED

COMMITTEE ADJOURNS UNTIL MONDAY 13TH JULY 1998

13-07-1998: Day 5

ON RESUMPTION

CHAIRPERSON: Good morning ladies and gentlemen.

Mr Berger, I understand that the team is expanding. Would you for the record just place Mr Malindi on record?

MR BERGER: Thank you Chairperson. As from today, Advocate P G Malindi: M-A-L-I-N-D-I will be assisting in the representation of the victims. As soon as we have finalised the list of which victims are represented by Advocate Malindi, Ms Cambanis and me, we will hand those lists up to the Committee so that we can have finality on who is being represented by whom.

CHAIRPERSON: You do confirm that Mr Malindi do you?

MR MALINDI: I do confirm that Chairperson.

CHAIRPERSON: Yes, very well, welcome to the proceedings.

Mr Mthembu, may I remind you that you are still under oath.

VICTOR MTHANDENI MTHEMBU: (s.u.o.)

CHAIRPERSON: The one matter that was outstanding as from Friday was the issue of whether or not Mr Berger can make use of a confession in cross-examining the applicant, Mr Mthembu. Mr Strydom was going to indicate to us this morning the basis of his objections to that line of cross-examination.

Mr Strydom?

MR STRYDOM: Mr Chairperson, Mr Berger indicated to me that he only wanted to use the one confession of Mr Mkhize and I have had insight of the confession and apart from stating that that confession was made not freely and voluntarily but under duress, on behalf of the applicants we will have no objection is that document is used during cross-examination.

CHAIRPERSON: Mr Berger, do you accept that offer?

MR BERGER: Chairperson, there are two points I wish to make. The first is that I informed Mr Strydom on Friday that Mr Mkhize's confession was the only confession from amongst the applicants that I had in my possession at the moment that I intend using but that I do have other confessions of people who are non-applicants whose I intend using. In fact I think I made that clear during the proceedings as well on Friday.

The second point is Chairperson, that after I showed Mr Strydom the confession on Friday after we had adjourned, he read through it and I asked him what his position was and he informed me that he was objecting to my use of that confession. I'm somewhat taken aback by his attitude considering that I spent time having to research this point and I would have appreciated it if I could have been notified in advance.

CHAIRPERSON: I suppose you should be thankful of the fact that he has reflected on the matter properly and he has withdrawn his objection to the matter. In regard to the other confessions perhaps we will follow the same procedure and that is make them available to your colleagues but I think whilst one doesn't want to curtail the cross-examination of the applicant and the use of any document that might be relevant for the purposes of cross-examination, I think one also has to reflect on what would be the fact of putting a confession by somebody else on these applicants and what would be the value of that evidence if any.

MR BERGER: Yes.

CHAIRPERSON: I think one has to bear that in mind in the interest of shortening the time and not burdening these proceedings with undue documents which in the end may or may not give any assistance in arriving at the decision which we have to reach.

Mr Berger, you may proceed Sir.

MS PRETORIUS: Mr Chairperson, before we proceed, may I just suggest that before these confessions are used, whether we may have insight into them as well the statement of the witnesses that Mr Mthembu was cross-examined on Friday and who were nameless witnesses. We do not have copies of those statements and I would like to ask Mr Berger if he can give us copies of those statements.

MR BERGER: I have prepared copies for my learned friends and for the Committee. Perhaps this would be an appropriate point to hand them up. The first document is a copy from Mr Mthembu's identity document. You will recall Mr Mthembu said he had a licence for two guns, this copy shows that he has a licence for three guns. If I may hand them in. Chairperson, I believe the last exhibit was Exhibit B so this would become Exhibit C.

Another document which will then be marked Exhibit D is the confidential memorandum from which I got the information that someone had deposed to an affidavit concerning hitsquads that were operating from the Kwamadala Hostel. If I could hand that up. It will be Exhibit D, Chairperson.

CHAIRPERSON: Yes.

MR BERGER: Then as far as the confessions are concerned, Chairperson my submission is that ...[intervention]

CHAIRPERSON: As far as what exhibit?

MR BERGER: It's not an exhibit yet, the confessions.

CHAIRPERSON: Oh, yes.

MR BERGER: My submission is that it's a question of principle or it's a question of law whether or not these confessions are admissible in these proceedings and that it doesn't depend on the contents of the confessions, so I'm quite happy to hand in the confessions when I put them to the witness but I would be loathe, unless the Committee directs me to do so, to hand over all the confessions now because that would take away some of the advantages of cross-examination.

CHAIRPERSON: I think what everyone who is involved in these proceedings must realise is that the purpose of these hearings is to get to the truth as far as that is practical. It is highly undesirable that this should be turned into either a criminal trial or a civil proceeding. We will not as a Committee countenance any attempt to convert this inquiry into those proceedings because we do not believe that it is in the interest of everyone involved here that that should happen. If there are documents that will be used, those documents must as far as is possible be made available to all the legal representatives so that they can prepare.

MR BERGER: I will then do so Chairperson. If I can then, there are four confessions that I intend referring to and if I could hand them in as Exhibits E, F, G and H.

CHAIRPERSON: I think Mr Berger, you can only hand in these confessions as and when you come to deal with them.

MR BERGER: That's what I wanted to do Chairperson, yes, I perhaps misunderstood you.

CHAIRPERSON: No, no, I'm only referring in regard to making those available to your colleagues not to the Committee. The Committee can have sight of those as and when you deal with them.

MR BERGER: Well I'm going to deal with all of them now so perhaps it would be convenient for me to hand them in.

CHAIRPERSON: Well if there's one that you wanted to deal with on Friday.

MR BERGER: Yes.

CHAIRPERSON: Hand that one in, let's deal with that one first and then once you've finished that one we can then go onto the next one.

MR BERGER: Chairperson, the next exhibit will then be Exhibit E and that is the confession of Mr Bhekinkosi Mkhize.

CHAIRPERSON: If I may know, how many of these confessions do you intend referring to?

MR BERGER: Four Chairperson.

CHAIRPERSON: Yes, very well. Is there a way the contents of these confessions can be put to the witness so that we don't have to go tediously through each and every confession or to they not lend themselves to that procedure?

MR BERGER: Chairperson, as far as possible I will attempt to summarise what the confessions say but the whole point of the confessions is that they do say different things and that's what I want to canvass with Mr Mthembu.

CHAIRPERSON: What I want to avoid is having to repeat what each and every confession is saying

MR BERGER: No, I won't be doing that.

CHAIRPERSON: Yes, very well.

CROSS-EXAMINATION BY MR BERGER: (Continues) If I can then continue.

Mr Mthembu, on Friday we were dealing with the reason that you gave for attacking Boipatong and one of the things that you said was that two people had been killed in Boipatong and you mentioned a person by the name of Gazu and a person by the name of Mbatha. Now I'm putting to you that no person by the name of Gazu and no person by the name of Mbatha was killed in Boipatong before the attack. Do you have any comment on that?

MR MTHEMBU: Mr Berger, I am only talking about what I know. The two people I mentioned on Friday are people I know that are deceased and were killed in Boipatong.

MR BERGER: You cannot tell the Committee when they were killed can you? You cannot even put a year to it.

MR MTHEMBU: I cannot remember quite clearly which year it was.

MR BERGER: Now if you would look at page 29 of the bundle, paragraph 17.4, you give the reasons for attacking Boipatong. I see you've been reading paragraph 17.4, is that right?

MR MTHEMBU: Yes.

MR BERGER: The first reason you say:

"They also threatened the residents of the Kwamadala Hostel"

Who is the: "they"?

MR MTHEMBU: The residents of Boipatong, because they did not allow us to come into the township even to buy from the shops.

MR BERGER: Were you ever threatened?

MR MTHEMBU: No.

MR BERGER: At the time of the attack, is it correct that there were IFP supporters living in Boipatong?

MR MTHEMBU: I would not know that Sir.

MR BERGER: You had family staying in Boipatong, am I right?

MR MTHEMBU: No.

MR BERGER: You had friends staying in Boipatong, am I right?

MR MTHEMBU: No, I did not.

MR BERGER: Well have a look them please at page 41 of your bundle, paragraph 15. In the middle of that paragraph you say:

"We realised that we partook in the massacre of people, some of whom were my family and friends and I feel very bad about this"

From your own hand we see that you had family and friends living in Boipatong who were killed during the attack, isn't that what you say?

MR MTHEMBU: What I was explaining here was about the people with whom I had once been romantically involved who were staying in Boipatong.

MR BERGER: I don't understand your answer Mr Mthembu.

MR MTHEMBU: Here Sir I was speaking about my ex-girlfriend. I don't know whether it is understandable.

MR BERGER: Your ex-girlfriend's family was killed in that attack, is that what you are saying?

MR MTHEMBU: Although I would not know but I think they were injured.

MR BERGER: What was their name? Let's start with the name of your ex-girlfriend.

MR MTHEMBU: Katiwe Dlamini.

MR BERGER: And the members of her family who were injured or killed?

MR MTHEMBU: I would not know Sir what eventually happened to them because at that stage I could not communicate with them.

MR BERGER: Well, can you then give us the names of her family who she was staying with?

MR MTHEMBU: I will not give you these names because I've only concerned with the girl I was in love with but I did not know about her parents or the members of her family.

MR BERGER: Where did she live in Boipatong?

MR MTHEMBU: In the streets opposite the shops in Boipatong.

MR BERGER: What street was that?

MR MTHEMBU: I don't know its name.

MR BERGER: When did you start visiting her in Boipatong?

MR MTHEMBU: Around 1991.

MR BERGER: And when did you stop visiting here in Boipatong?

MR MTHEMBU: I don't remember when I stopped visiting her.

MR BERGER: How long was she your girlfriend?

MR MTHEMBU: Please repeat your question.

MR BERGER: How long was she your girlfriend?

MR MTHEMBU: Because of the fact that we never broke up I think she is still my girlfriend but we cannot see each other anymore and I don't know where she is now and she also doesn't know where I am now.

MR BERGER: You see because you told the Committee last week that you had never been into Boipatong until the night of the massacre.

MR MTHEMBU: I did not say that, you never asked me a question about that.

MR BERGER: So the family and friends that you are referring to in this paragraph are the family of your girlfriend, Katiwe Dlamini?

MR MTHEMBU: This whole paragraph was supposed to explain about the family members or rather members of the family who were victimised or traumatised by the Boipatong incident as a whole.

MR BERGER: No, Mr Mthembu, that's not what you say here at all. You say here very clearly that some of the people:

"We realised that we partook in the massacre of people, some of whom were my family and friends"

In other words some of the people who were massacred were your family and friends and you feel very bad about that and that's what you're saying sorry for, isn't that what you're saying here?

MR MTHEMBU: Please try to understand that I was not only referring to the person I was in love with or the family members thereof but I was speaking generally about the attack on the people of Boipatong and I feel badly that people were killed and I ask for forgiveness for everything that happened, from the family members of the people who were victimised.

MR BERGER: Because some of them who were killed were your family and your friends, correct?

MR MTHEMBU: All in all I was speaking of everybody who was traumatised or victimised, not necessarily friends or family members.

MR BERGER: Why is it that you don't want to conceded Mr Mthembu, that at the time of the massacre there were IFP supporters still living in Boipatong?

MR MTHEMBU: As far as I know I do not have knowledge of that. What I know is that prior to the attack many IFP members had left the township because they were being terrorised there and they fled to Kwamadala Hostel.

MR BERGER: Isn't it correct that the people who had been chased out of the township were people who had been accused by the community of being criminals who stole, who raped, who stabbed and who killed people? Isn't that why they were chased out of the township?

MR MTHEMBU: I do not have knowledge of that.

MR BERGER: People who were terrorising the community as I've described, those are the people who were chased out of the township, isn't that correct?

MR MTHEMBU: I don't know anything about that Sir.

MR BERGER: Alright. Let me refer you then to the confession of one of your co-applicants, Mr Bhekinkosi Mkhize. This is the man who you say took the decision or one of the people who took the decision to attack Boipatong, do you remember that?

MR MTHEMBU: Yes, Sir.

MR BERGER: If you look at his confession which he made on the 11th of July 1992 very shortly after the massacre, if you'll turn to page four you'll see there he describes what happened on the night of the 17th and if you look in the middle of the page ...[intervention]

MS PRETORIUS: Mr Chairperson, I don't think he has ...[intervention]

MR LAX: I just noticed he didn't have a copy.

MR BERGER: Oh, Mr Mthembu doesn't have a copy?

MR LAX: Yes.

MS PRETORIUS: I don't have a copy either Mr Chairperson. I'm sorry, I think she is making some for us at this stage.

CHAIRPERSON: Mr Mthembu, can you read Afrikaans?

This statement is in Afrikaans, right?

MR BERGER: It is yes.

CHAIRPERSON: Can you read Afrikaans?

MR MTHEMBU: No, I cannot.

CHAIRPERSON: Advocate Pretorius?

MS PRETORIUS: I have a copy now from my learned friend, thank you.

CHAIRPERSON: Yes, okay.

MR BERGER: I'll then translate for you. Mr Mkhize says:

"I was at my room at the Kwamadala Hostel. I liver there in room 8. That Wednesday at that time I was at the stadium inside the hostel. I and other people at that hostel decided that the people are preventing us from going outside of the hostel to the shops. We then decided to attack the people who lived in the vicinity of the hostel"

The point is he makes no mention whatsoever of the attack being in retaliation for IFP members who had been killed. Do you have any comment?

CHAIRPERSON: Does he state anywhere in this affidavit how he'd been prevented from going out of the hostel?

MR BERGER: Chairperson, he just states exactly what I've just read, that's all he states about the reason for the attack.

CHAIRPERSON: Do we know how then they were prevented? Were they prevented by being told: "Don't go out of your hostel" or were they being prevented by killed if they're out or if they've been prevented by being harassed? I mean do you we know?

MR BERGER: We don't know Chairperson.

CHAIRPERSON: So do you think therefore it's fair to put to the witness that he doesn't say so, in view of the fact that the confession you've just read doesn't indicate, all it says they were preventing people from going out of the hostel.

MR BERGER: Well, I'll ...[intervention]

CHAIRPERSON: I think the best for you, you could simply say that the confession does not make mention of any persons who were killed.

MR BERGER: That's what I said Chairperson. I said to Mr Mthembu, the point of this is that Mr Mkhize doesn't make any mention of anybody being killed and I asked Mr Mthembu to comment on that.

Mr Mthembu?

CHAIRPERSON: In fact a retaliation. In your question you referred to retaliation.

MR BERGER: Yes, he doesn't make any mention ...[intervention]

CHAIRPERSON: What you put to this witness is that Mkhize makes no mention that the attack was in retaliation of the people who had been killed in Boipatong, of preventing them from going ...[intervention]

MR BERGER: Shall I leave out the word: "retaliation"?

CHAIRPERSON: I'm saying that it's a bit unfair because from you've put to the witness by way of, from this confession is that people were being prevented. There is no indication from this confession as to how that occurred. Did it occur by way of killing people, harassing them, one doesn't know. That is why I'm saying that it may well be that that's what it was, they were prevented by being killed but one doesn't know.

MR BERGER: Chairperson, the point that I really wanted Mr Mthembu to comment on was that one would have expected Mr Mkhize, if IFP members were being killed and that that was the reason for the attack, one would have expected Mr Mkhize to say so in a confession which ultimately would have been something exculpatory.

CHAIRPERSON: Precisely, that's what you should put to the witness.

MR BERGER: Mr Mthembu, do you understand my question or would you like me to rephrase it?

MR MTHEMBU: I understand you.

MR BERGER: And what is your comment?

MR MTHEMBU: What I will comment on is that as I listened to you while reading the statement it becomes obvious that people were harassed when they went out to buy in the shops in Boipatong.

Even though he doesn't mention it here I think he knows that the people I've mentioned as being killed in Boipatong were indeed killed because he was also present at their funerals.

People would move from the hostel to the township and that's where they would be harassed and even killed.

CHAIRPERSON: I think what Mr Berger wants to emphasise is that if the attack on Boipatong was indeed in retaliation of the people who had been killed in Boipatong given the fact that this was a confession dealing precisely with what the attack on Boipatong, one would have expected Mr Mkhize to have said so in so many words in this confession, namely that: "We went to attack them because they had killed". Do you understand the point that Mr Berger is emphasising?

MR MTHEMBU: Yes, I understand.

CHAIRPERSON: Do you know Mkhize did that?

MR MTHEMBU: I would not know why he did not include that in his statement.

MR BERGER: Do you know of any other reason why Mr Mkhize agreed to attack Boipatong?

MR MTHEMBU: I think Sir, it was because people had been dying for a very long time, people who had been killed by the comrades in Boipatong.

MR BERGER: Wasn't it because Mr Mkhize was the sole proprietor of beer inside the hostel and his supply of beer was cut off?

MR MTHEMBU: That doesn't mean that the comrades for example were now harassing the bottle store owner from whom Mkhize was getting his supplies, threatening to kill him if he continued the supplies.

MR BERGER: And was that the reason for the attack, because Mr Mkhize's beer supply was being cut off by the comrades?

MR MTHEMBU: Even though I may not say whether that is the reason or not but the main reason is that our people were being killed in Boipatong. I think that is the reason why a decision was taken because people realised that people were being killed.

MR BERGER: You were asked at page 19, question 17.3:

"When was it decided to attack Boipatong"?

Your answer appears at page 29, paragraph 17.3. In response to the question of when it was decided you say:

"Mr Vanana Zulu was staying at Boipatong and the comrades chased him away and burnt his house at Majola Section in Boipatong. This they did after they had discovered that Vanana Zulu was a member of the IFP"

That's the first point that you give, is that correct?

MR MTHEMBU: Yes, that is correct.

MR BERGER: When was Mr Vanana Zulu's house burnt?

MR MTHEMBU: Even though I cannot remember but it was burnt before the attack on Boipatong.

MR BERGER: How many months before the attack on Boipatong?

MR MTHEMBU: I have no knowledge of that Sir, it's been long now.

MR BERGER: Well was it a week before the attack on Boipatong, a month before the attack on Boipatong, a few months before the attack on Boipatong? Can you give the Committee some idea of the time that had lapsed between the burning of Mr Vanana Zulu's house and the attack on Boipatong?

MR MTHEMBU: As I have explained Sir, I am not in the position, it is difficult for me to remember how long it took before the attack.

MR BERGER: It wasn't a week before the attack was it?

MR MTHEMBU: I think Sir, you understand what I am saying here when I am saying that I cannot remember how long it really took before the attack.

MR BERGER: How do you know that Mr Vanana Zulu's house was in Majola Section?

MR MTHEMBU: He was living with us.

MR BERGER: And he told you that his house was in Majola Section?

MR MTHEMBU: Yes.

MR BERGER: And you knew that before the attack on Boipatong?

MR MTHEMBU: Yes, Sir.

MR BERGER: Did all the attackers know that, that Mr Vanana Zulu's house was in Majola Section, would you know?

MR MTHEMBU: I don't know, I cannot answer on their behalf.

MR BERGER: You go and you say:

"Mr Mkhize"

This is now the second point of this paragraph:

"was the sole proprietor of beer inside the hostel. The comrades discovered that one of the Boipatong Bottle Store owners sold Mr Mkhize some beer and then threatened to kill the owner. Mr Mkhize became angry and agreed with Mr Chonco to attack the residents of Boipatong"

So in response to the question of: "When was it decided to attack the residents of Boipatong", you identified two events, the one is the burning of Vanana Zulu's house and the second is when Mr Mkhize became angry because is supply of beer was threatened with being cut off. Those are the two events which prompted the attack on Boipatong, is that correct?

MR MTHEMBU: These are some of the reasons and also as I have explained earlier on, people were being harassed in Boipatong, they were being killed.

MR BERGER: You see because what I want to put to you is that this reason of Mr Mkhize's that you articulate in this paragraph is clearly a personal reason of his for wanting to attack Boipatong, would you agree with that?

MR MTHEMBU: I do not agree with that and I would not disagree with that either because it doesn't directly concern me.

MR BERGER: Let me then refer you to another confession, it's a confession of Philip Mpena. Do you know a person Philip Mpena?

MR MTHEMBU: No, I have no knowledge of him.

MR BERGER: Chairperson, perhaps it could be marked F. Can I hand out while I'm going because it will just go a lot quicker. Exhibit G would be the confession of Musa Dlamini and then Exhibit H would be the confession of Njanelwa Ndaba.

MR LAX: Mr Berger, we need a copy for the witness if you're going to refer him to it.

MR BERGER: They're all in Afrikaans so it won't assist.

MR LAX: Okay. At least then maybe the interpreters could have a copy so they can see it and pass it on as well.

MR PRIOR: Mr Chairman, may I also have one please, I haven't got one.

MS PRETORIUS: And I haven't got one either Mr Chairman.

MR BERGER: Mr Mthembu, before we get onto those confessions, do you know anything about the attack on the home of Mr Ernest Tsotso?

MR MTHEMBU: No.

MR BERGER: Do you know Mr Ernest Tsotso is?

MR MTHEMBU: I just know the name.

MR BERGER: Do you know anything about the man?

MR MTHEMBU: I just heard that he is one of the people who was in charge of the comrades in Boipatong.

MR BERGER: He was a senior ANC leader in Boipatong.

MR MTHEMBU: Yes, I heard so.

MR BERGER: In July 1991 you were in Kwamadala Hostel, correct?

MR MTHEMBU: That's correct.

MR BERGER: At that time you were the Vice-Chairperson of the IFP Youth Brigade, correct?

MR MTHEMBU: That's correct Sir.

MR BERGER: And you don't know anything about the fact that on the 3rd of July 1991, Mr Tsotso's house was attacked.

MR MTHEMBU: No, Sir.

MR BERGER: Attacked by IFP members, you don't know about that?

MR MTHEMBU: No, Sir, I don't know of it.

MR BERGER: And at the time Mr Tsotso was attending an ANC conference in Durban and his entire family was wiped out.

MR MTHEMBU: I have no knowledge of that Sir.

MR BERGER: Do you know that Mr Vanana Zulu left Boipatong before that attack on Mr Tsotso's family? In other words he left Boipatong before July 1991.

MR MTHEMBU: I have no knowledge of that.

MR BERGER: You see my point is, when you were asked the question: "When was it decided to attack Boipatong"?, you pointed to two events as being the trigger for the attack on Boipatong. The one was the burning of Mr Vanana Zulu's house which occurred before July 1991.

MR LAX: Sorry, you said before July 1991 and you're saying here that - sorry, I beg your pardon ...[intervention]

MR BERGER: No, no, the one is the attack on the Tsotso family, the other is the burning of ...[intervention]

MR LAX: I beg your pardon, I got confused there.

MR BERGER: Mr Vanana Zulu's house was burnt before July 1991.

MR MTHEMBU: I hear, I understand that.

MR BERGER: The attack on Boipatong came a year later.

MR MTHEMBU: That's correct Sir.

MR BERGER: So that couldn't have been the event that triggered the attack on Boipatong?

MR MTHEMBU: I have given you reasons which I know to have led to attack the people at Boipatong.

MR BERGER: In Exhibit F, this is the confession of Philip Mpena, he gives an explanation about what happened on the night of the 17th of June 1992. He says that you were called to the stadium, he was called to the stadium and then he says:

"'n Sekere ou in kom met die van van Mkhize het gesê dat ons Boipatong moet gaan aanval"

He's saying there:

"A man the name of Mkhize came in and he said we must attack Boipatong. We then went to Boipatong and we killed people there"

Again the point I'm making to you is that nowhere in this confession is there mention of the fact that: "we went to attack Boipatong because our people were being killed". And again I'm suggesting to you that if that were the reason and if someone was making a confession one would have expected him to say: "Yes, I confess I went to kill the people but I went to kill the people because my people were being killed". It doesn't say that. Do you have an explanation for that?

MR MTHEMBU: Sir, that statement was signed by Mpena himself.

MR BERGER: You can't explain it, that's what you're saying?

MR MTHEMBU: Exactly.

MR BERGER: I can just tell you again, in the next confession, Exhibit G of Muso Tokozani Dlamini, again he gives an explanation about the attack, again no mention of the attack, of IFP supporters being killed and that's why there was an attack. Silent on that aspect. Can you comment?

MR MTHEMBU: No.

MR BERGER: Then I want to refer you to Exhibit H, the affidavit of Mr Njanelwa Ndaba. In paragraph 7 of that affidavit he gives a very interesting explanation for why the people of Boipatong were attacked. He says the following at paragraph 7 and I will translate. He says:

"The reasons which were given to me why Boipatong was attacked by the residents of Kwamadala Hostel on the 17th of June 1992 and killed is as follows"

And he talks about two people who told him - I'll summarise this for you, about the residents of Boipatong being protected by people from Sharpeville but he says that in return for this protection these people from Sharpeville demanded money from the people of Boipatong. And then I'll read to you what he says in the last paragraph. He says:

"What I'm actually saying is that from conversations with people who live in Boipatong and who work at Iscor, also from conversations with residents of the Kwamadala Hostel who work at Iscor and in other places, the reason for the attack on the residents of Boipatong is as a result of the people who were protecting"

The Afrikaans word is: "bewaak", I think that that does mean to protect.

"people who were guarding Boipatong"

And maybe I should read the Afrikaans so that I don't misquote. He says:

"Is die rede vir die aanval of die inwoners van Boipatong as gevolg van die persone wat Boipatong"

He uses the word:

"Sirela"

for Boipatong.

"bewaak het en hulle gedurig voorgekeer het en geld vir hulle dienste geëis het"

He goes on, he says:

"Verder dat die persone wat Sirela, Boipatong, die nag van 17 Junie 1992 aangeval en gedood het soos reeds vermeld inwoners van die Kwamadala Hostel is en kon hulle blykbaar nie die sogenaamde bewakers van Sirela, Boipatong opspoor nie en het hulle toe besluit om nie met leë hande terugtekeer nie, met ander woorde gaan om mense aanteval en dan niks doen nie. Hulle het toe besluit om maar in Sirela, Boipatong integaan en wraak op ander inwoners te neem"

So he says that the residents of Kwamadala went out to attack the guards from Sharpeville and when they couldn't find them, instead of coming back with empty hands then they decided to exact revenge on the other residents of Boipatong. Was that the reason for the attack Mr Mthembu?

MR MTHEMBU: Mr Berger, as I have explained to you earlier on I am still maintaining that people were attacked because they were harassing our people. What you are reading from that statement, even though I do not know whose statement it is, but that's how perhaps that person sees it and I therefore cannot say something about something that I don't know.

CHAIRPERSON: Does that statement indicate what that revenge was for?

MR BERGER: No, Chairperson, it just talks about: "wraak" but what the statement does indicate is that the attack was for one purpose and then when that purpose couldn't be achieved then it was decided well let's exact revenge on the people of Boipatong.

CHAIRPERSON: It doesn't say revenge for what?

MR BERGER: It doesn't say revenge for what.

CHAIRPERSON: Yes, thank you.

MR BERGER: Mr Mthembu, I'm putting to you that the reasons you have articulated for the attack on Boipatong are not the true reasons.

MR MTHEMBU: What I have said here before this Committee is the truth. If you dispute it maybe you can give me the truth because you know you were present and you have your reasons as to why you're disputing my truth.

CHAIRPERSON: Mr Mthembu, when counsel puts questions to you it does not suggest that he was present when the attack took place. The statements that he's putting to you as based on what he has been told by those individuals whom he represents, do you understand that?

MR MTHEMBU: Yes, Sir, I do understand.

CHAIRPERSON: So when he puts a proposition to you and you do not agree with it you must say so, either: "Yes, I agree with you, that is the reason" or "No, I do not agree with you", do you understand that?

MR MTHEMBU: Yes, Sir, I understand.

MR BERGER: Mr Mthembu, the reason I'm putting to you, the reason I put it to you, that you haven't disclosed the true reasons for the attack on Boipatong is because all the statements I've referred you to come up with either different reasons for the attack or they don't mention your reasons and in particular when you were asked: "When was it decided to attack Boipatong"?, you give two reasons or two events, one being an event which took place more than a year before the attack on Boipatong and the other one which has only to do with Mr Mkhize's beer supply being cut off. That is why I'm putting it to you that you haven't disclosed the true reason for the attack on Boipatong.

CHAIRPERSON: In all fairness to the witness you must also put to him that in his affidavit at page 29 he does indicate that Boipatong was selected as a target for the attacks because they also threatened the residents of Kwamadala Hostel. They were not allowed to buy at Boipatong shops during the weekends and the residents who were IFP members were evicted from Boipatong. They also necklaced the IFP members. This he gives as the reason for the attack.

MR LAX: Chairperson, if I could just add.

That's in response Mr Berger to the direct question: "Why was Boipatong selected as the target of the attack"? So I don't think you are being fair, as the Chairperson says, when you take the reason of the timeframe that's asked in 17.3, you don't add in the reason given in relation to 17.4 as well. I just think you're stretching a bit otherwise.

MR BERGER: Chairperson and Mr Lax, I have canvassed with the witness the reasons that he has articulated about people being threatened from, people being prevented from shopping, people being evicted from Boipatong, people being killed. I did that first. I was focusing on 17.3, not to say that there isn't 17.4 but to say that in 17.3 he was asked for when and he focused on two events.

CHAIRPERSON: I perfectly understand that but what we're trying to prevent is for you to put it as a fact that the only reasons he has advanced are those that you've just put to him. That is what we are trying to prevent because I think that's unfair to the witness.

MR BERGER: Yes, I'm just saying that in response to: "What were the events that triggered it"?, he gives two answers which I've just explained.

But Mr Mthembu, so as not to be unfair to you, let me ask you this, the two persons Gazu and Mbatha, were those two people necklaced?

MR MTHEMBU: Yes, Sir.

MR BERGER: Were you told ever what the reason was for the attacks or have you worked out for yourself what the reason was?

MR MTHEMBU: Mr Berger, I could also see people being attacked. We kept burying people, burying the bones that had been, bones of people who had been necklaced at Boipatong and we also had meetings and they would tell us about a funeral where we had to go and bury a person and they were informing us about the death of the people at the hostel.

MR BERGER: Mr Mthembu, when was it decided to attack Boipatong?

CHAIRPERSON: Perhaps for our benefit, is it an issue that there was animosity between the IFP and the ANC in Boipatong, in particular between the residents of Kwamadala Hostel and the residents of Boipatong?

MR BERGER: It's not an issue Chairperson, that there was animosity.

CHAIRPERSON: But what you are raising is what was the motive for the ultimate attack on Boipatong.

MR BERGER: Indeed yes.

CHAIRPERSON: You're saying that it had nothing to do with this animosity?

MR BERGER: No.

CHAIRPERSON: Very well.

MR BERGER: And Chairperson, so that I don't go wider than I intend to, not all the residents of Boipatong were ANC members or ANC supporters or ANC sympathisers, there were ANC members and supporters and sympathisers in Boipatong. There were ANC structures in Boipatong and there was animosity between ANC members in Boipatong and IFP members in Kwamadala. That is not in dispute.

CHAIRPERSON: Thank you. My colleague here, Mr Lax, just wants to make sure that he understands you correctly. What is in issue here is the motive for the ultimate attack on Boipatong?

MR BERGER: Correct, yes.

CHAIRPERSON: The victims are saying that it had nothing to do with the animosity between the IFP and the ANC?

MR BERGER: Yes.

CHAIRPERSON: Yes, very well.

MR BERGER: Mr Mthembu, my question to you was, were you or were you not told by somebody about the reason for the attack?

MR MTHEMBU: No, Sir.

MR BERGER: You were not told?

MR MTHEMBU: No, I was not told, I witnessed the situation for myself.

MR BERGER: Did you ever attend any meeting at which the possibility of an attack on Boipatong was discussed?

MR MTHEMBU: There was no other meeting except for the one on the 17th.

MR BERGER: The words: "Attack on Boipatong", either as a possibility or as a reality was never discussed at any IFP meeting other than the meeting on the 17th of June in the evening in the stadium, is that correct?

MR MTHEMBU: Yes, Sir, that's what I mean.

MR BERGER: And at that meeting, the one on the 17th of June there was no discussion at all about the reason for the attack, am I right?

MR MTHEMBU: What I heard was that our people had died in multitudes in Boipatong and it had come to a point where we had to show them that the people who had been killed were also human beings. Nobody should be killed without a reason.

MR BERGER: And who said that?

MR MTHEMBU: This was said by Damarra Chonco at the meeting.

MR BERGER: So then you were told about the reason for the attack?

CHAIRPERSON: At what stage?

MR BERGER: At the meeting on the 17th of June.

CHAIRPERSON: Yes, I thought that had always been his evidence, that at the meeting of the 17th they were told to go and attack Boipatong.

MR BERGER: Chairperson, they were told to go and attack Boipatong, I'm asking him if they were told why they were going to go and attack, the reason for the attack and his original answer was that nobody told him about why they were going to attack Boipatong.

Isn't that what you said Mr Mthembu?

MR MTHEMBU: As I explained earlier on I witnesses that people were dying in Boipatong.

MR BERGER: Mr Mthembu, please listen to my question. My question to you is, were you told by anybody about the reason for the attack on Boipatong?

MR MTHEMBU: I have explained that Damarra Chonco mentioned this at the meeting of the 17th.

MR BERGER: So you were told about the reason for the attack, the answer is yes?

MR MTHEMBU: Sir, I hope you understand when I say that on the meeting of the 17th Damarra said that it had come to a point where we could not tolerate this anymore and we had to show them that we could not tolerate it anymore. That is what I've explained here.

MR BERGER: And you agreed with Chonco, is that right?

MR MTHEMBU: The mere fact that I went to Boipatong means that I agreed with him.

MR BERGER: The fact that all your comrades also went to Boipatong means that they all agreed with Mr Chonco?

CHAIRPERSON: What do you want him to say, to speak on behalf of the others? It must follow that they agreed if they were there, one doesn't know.

MR BERGER: As far as you could see - well, let me ask you this then Mr Mthembu, when Mr Chonco said: "Our people are being killed in droves, it's time now, we must now go and kill them", what was the response of everyone else at that meeting?

MR MTHEMBU: The people who were there, even though I cannot recall what their response was, it became obvious to them that if the time had come for the people to be attacked then that be so. It had come to a point where it was no longer tolerable.

CHAIRPERSON: Did they say anything at the meeting?

MR MTHEMBU: I cannot say if they did because I did not hear anything thereafter.

MR BERGER: Well I want you to think back to that meeting in the stadium. All the male residents of the hostel were there, correct?

MR MTHEMBU: Mr Berger, you should know that if you speak of: "all", some were at work, some were in the stadium so when you say: "all" I don't know what you mean.

MR BERGER: Well at page 36, paragraph 2 you say:

"A few minutes after the news I was surprised when the siren went and I noticed that they wanted all the people to go to the stadium where we used to hold meetings"

You said that all the people were called to the stadium.

CHAIRPERSON: Mr Berger, there must be a difference between saying: "the siren called all the people to the meeting" and whether in fact all the people were there.

MR BERGER: Yes Chairperson, ...[intervention]

CHAIRPERSON: I think what he's trying to emphasise here is that he doesn't know whether all the people were there, there were people who were at work. Unless there's really something that turns on the fact that everyone was there, no-one had gone to work on that day, on that night.

MR BERGER: There were hundreds and hundreds of men in the stadium, is that correct?

MR MTHEMBU: Mr Berger, you should understand what I'm saying. That evening when I say all people went to the stadium I mean all the people who were present at Kwamadala Hostel that night. I actually referred to the people who were at the hostel at the time.

CHAIRPERSON: What he's asking you now is that there were hundreds and hundreds of men at the stadium.

MR MTHEMBU: No, there were not hundreds.

MR BERGER: Approximately how many men were in the stadium.

MR MTHEMBU: About 200 to 300.

MR BERGER: I put it to you that many, many more than 300 people, some witnesses have put it between 800 and 1000 people attacked Boipatong that night, now it's your evidence that the men who were at the stadium then went to attack Boipatong. So I'm putting to you that those men in the stadium must have numbered far in excess of 300 men, somewhere between 800 and 1000.

MR MTHEMBU: Because I did not have a calculator I was not able to calculate how many there were.

MR BERGER: At that time ...[intervention]

CHAIRPERSON: What Mr Berger is putting to you is this, you've estimated the men who were there at between 200 and 300, what Mr Berger is saying, according to his instructions there were approximately between 800 and 1000 men present at the stadium. What do you say to that figure, do you agree with it or don't you agree with it?

MR MTHEMBU: I would not agree or disagree with him if that is how he got his instruction.

CHAIRPERSON: Would this perhaps be the appropriate time to take the tea adjournment?

MR BERGER: As you please Chairperson.

CHAIRPERSON: Yes, very well. We will return at half past eleven.

COMMITTEE ADJOURNS

ON RESUMPTION

VICTOR MTHANDENI MTHEMBU: (s.u.o.)

MR BERGER: Mr Mthembu, you told the Committee last week that you were not targeting the residents generally of Boipatong but that you went to Boipatong to kill the members of the self-defence units, am I right?

MR MTHEMBU: Mr Berger, yes, that is so. These very same self-defence units were ANC after all.

MR BERGER: Was that discussed at the stadium before you went to Boipatong?

MR MTHEMBU: Mr Berger, I didn't hear that at the stadium.

MR BERGER: At the stadium it was just said: "We are going to Boipatong to attack the people"?

MR MTHEMBU: Yes, Sir.

MR BERGER: Why didn't you target specific people of the ANC who were known to live in Boipatong?

MR MTHEMBU: Mr Berger, we went to attack for a reason, that our people were being killed, they couldn't go to the shops to buy and we therefore could not just go and attack people who were not known.

MR BERGER: Well that's my point you see. You were a leading member of one of the IFP structures in the Kwamadala Hostel, you had access to the other structure, that's the Senior Committee, Mr Vanana Zulu was the Chair of that committee and you had access to other structures in the Transvaal at that time in the IFP, so if you were concerned that the ANC was killing members of the IFP, why did you not identify those ANC people and go to Boipatong to kill them?

MR MTHEMBU: Mr Berger, if you follow this up very carefully I will say that there was no time for us to go to those people, call upon them and talk to them because we too were afraid and one would not know when one was going to be attacked.

MR BERGER: I think what you're being asked is this, not every resident of Boipatong was responsible for killing IFP members or the residents from Kwamadala Hostel, now what you're being asked is why did you not go out into the township and only target those individuals who were responsible for the attack on the residents of Kwamadala Hostel or the IFP?

MR MTHEMBU: I would say that I personally know that nobody had knowledge who was doing this but it was generally known that it was the ANC that was launching the attacks.

MR BERGER: Mr Mthembu, you can't run away from IFP structures. If you claim to have been a leader of the IFP you would know the structure of the IFP both in Kwamadala as well as in the Province as well as in the country, you would know what the various structures are, am I right?

MR MTHEMBU: Mr Berger, yes that is correct but I would like to explain that myself being Victor was not so much concentrating on the politics because many of us are not educated, we did not have the opportunity to acquire education and it is for that reason that I am saying I was not concentrating on political matters. There were other things that I had to do like looking after my family and my children.

MR BERGER: Mr Mthembu, it's your contention that your actions that night at Boipatong were political, am I right?

MR MTHEMBU: Yes, that is correct Sir, because people who were in conflict were the ANC and the IFP.

MR BERGER: Well then if this was a political problem between the ANC and the IFP, you as a leader of the IFP would have known of the IFP structures that were available to you, that you could have gone to determine who in the ANC was responsible for these killings or at least who in the ANC was in control in Boipatong, you say that you couldn't have done that?

MR MTHEMBU: As I have explained Sir, there are things that I was supposed to know and I didn't have to know everything else. I was only leader, Vice-Chairman within the youth and I would not have known who was doing what and who was not doing what, that was not my responsibility.

MR BERGER: You were a political leader were you not?

MR MTHEMBU: I was Deputy Chairperson within the youth of the IFP.

MR BERGER: And when the chairperson wasn't available then you acted as chairperson as well?

MR MTHEMBU: That is correct.

MR BERGER: This problem of IFP members being killed by ANC members was a political problem, correct?

MR MTHEMBU: That is correct Sir.

MR BERGER: And the political structures in the Kwamadala Hostel of the IFP knew very well who was in the political structures of the ANC in Boipatong.

MR MTHEMBU: I have no knowledge of that Sir.

MR BERGER: I'm putting it to you that you're not telling the truth and I'll tell you why. Mr Ernest Tsotso's house, the Chairperson of the ANC in Boipatong was attacked at a time when you were already an IFP leader in the hostel, how is it possible that you would not have known about that?

MR MTHEMBU: As I have explained Sir, that I was not concentrating on politics considering that I was not educated. These matters require educated people, not people like me and therefore I would not have known exactly how these things were happening.

MR BERGER: Are you telling the Committee that you went, you deliberately went to Boipatong to kill as many people as you possibly could in the hope that some of those who you killed would have been ANC members responsible for the violence against IFP members?

MR MTHEMBU: Yes, Sir.

MR BERGER: You did not discriminate at all, whoever you saw was a potential target and had to be killed?

MR MTHEMBU: Yes, Sir.

MR BERGER: And even if that meant killing IFP supporters or PAC supporters who also lived in the township, so be it, was that your plan?

MR MTHEMBU: Our aim was to go to the township to attack the ANC.

MR BERGER: It wasn't every ANC member that you wanted to kill, am I right? It was only those ANC members who were in the self-defence units that you wanted to kill because they were responsible for the death of IFP members?

MR MTHEMBU: Mr Berger, I am saying these people resided at Boipatong, they were ANC and these very same SDU members were also ANC. These are the people who were necklacing our people.

MR BERGER: Mr Mthembu, listen to my question. There were IFP members in the township, there were PAC members in the township, you didn't want to kill them, am I right?

MR MTHEMBU: Mr Berger, as I have explained to you before that I did not have knowledge as to the existence of IFP members in the township. I did explain this earlier on.

MR BERGER: I might just tell you that there was no Dlamini who was killed in Boipatong so your evidence about your girlfriend and her family seems to stand alone but let me come back to my question. You only wanted to kill certain ANC members, is that right?

MR PRIOR: Mr Chairman, I'm sorry to interrupt but with respect, has this not been canvassed fairly fully before? We've had the witnesses answer, there was an attack, innocent people, when I say innocent people, those who weren't ANC might well have been killed but this has been dealt with at length by Mr Berger, with respect, and I don't where it's getting us.

CHAIRPERSON: Yes, Mr Berger?

MR BERGER: Chairperson, I want to get clarity from this witness that it was not all ANC members that he wanted to kill, it was only ANC members who were in the self-defence units.

CHAIRPERSON: Mr Berger, I think the issues that you're now dealing with have been sufficiently canvassed. The record speaks for itself in this regard.

MR BERGER: I'd like to show you a map Mr Mthembu, of Boipatong.

Chairperson, we've made copies of this map. Unfortunately we haven't made enough and I would ask my learned friends to share. We have five copies of this map - the reason that it won't help to make copies of these is because we have coloured in in pink the houses where people were killed, we've indicated in green where people were injured and we've indicated in orange where houses were damaged but no-one was killed or injured. If I could hand this up as Exhibit I.

CHAIRPERSON: Did you discuss the contents of that map with your colleagues?

MR BERGER: No, Chairperson, I haven't.

CHAIRPERSON: What is the status of that map? Does that depict the area as it was then or as it is now or has there been no change?

MR BERGER: As it was then. It's taken from the evidence before the Criminal Court.

CHAIRPERSON: Advocate Pretorius, have you had sight of this map?

MS PRETORIUS: I've seen a similar map. My learned friend, Mr Strydom has one so I have had a look at it, thank you Chairperson.

CHAIRPERSON: Okay. Do you have any objections to this document being placed before us?

MS PRETORIUS: I have no objection.

CHAIRPERSON: Mr Brink, do you have any objection to this document being placed before us?

MR BRINK: No, no objection for what it's worth.

CHAIRPERSON: Very well, shall we have that map?

MAP OF BOIPATONG HANDED UP

MR BERGER: Chairperson, I'm told it should be J not I.

Mr Mthembu, I'd like you to have a copy of this map. Mr Mthembu, to give you directions, you'll see at the top there is Amatolo Street.

MR MTHEMBU: Yes, I can see that.

MR BERGER: That is north. On the side, on the righthand side of this map you will see a whole lot of little houses dotted in pink, that is Slovo Park, it's on the eastern side of the township.

MR MTHEMBU: Yes.

MR BERGER: Kwamadala Hostel is on the western side of the township, not depicted on this map. It's to the west, in other words to the left of the map and you can see in the middle of the township there is a street called Umzumvubu, do you see that?

MR MTHEMBU: Yes, Sir.

MR BERGER: And that's the street you say you entered the township on?

MR MTHEMBU: Yes, Sir.

MR BERGER: Now all the houses dotted in pink, those are houses where people were killed. The houses that are dotted in green, and some houses have both pink and green, the ones dotted in green are where people were injured but not killed.

MR STRYDOM: Chairperson, I'm sorry to interrupt. This plan was also handed to me. On the righthand side of the plan of the plan the informal settlements are shown, Slovo Part, and all those houses are marked pink. Now I can give the Committee the assurance that there were some killings but not in all those houses, that's not correct.

MR BERGER: Chairperson, I was coming to that. The reason is that not one house in Slovo Park was left unscathed. The houses - it's not possible to identify in which houses people were killed but the majority of people who were killed were killed in Slovo Park. I'm sure my learned friend will confirm that. It's not to suggest that in every house in Slovo Park someone was killed. We don't know in which houses they were killed but most people were killed there and not a single house was left unscathed.

CHAIRPERSON: These pink dots, do they depict the houses, all the houses in Slovo Park?

MR BERGER: Yes, they do.

CHAIRPERSON: Because on it's face this map then indicates that in each an every house in Slovo Park people were killed.

MR BERGER: Indeed, and I have to explain that.

CHAIRPERSON: But in each and every house in Slovo Park people were killed?

MR BERGER: No. There are no streets and there are no addresses in Slovo Park so it's very difficult to say: in this house someone was killed and not in that house, but what we're trying to indicate is that most of the people who were killed were killed in Slovo Park and not a single house in Slovo Park was left unscathed, not to say that a person was killed in every house in Slovo Park. That is our difficulty.

CHAIRPERSON: Because your key here reflects that.

MR BERGER: Yes.

CHAIRPERSON: It is misleading. Do you see what I'm saying? Because you are not saying and you cannot say that people were killed in each and every one of these houses because it's impossible to do that.

MR BERGER: Indeed and that is why ...[intervention]

CHAIRPERSON: Now if it's impossible to do that, isn't there another way of making sure that this is accurate in some respects?

MR BERGER: No, Judge, Chairperson, we can't do that unless we colour them all in in orange and then say that just because they're coloured in in orange it doesn't mean that people weren't killed there. You see there's that difficulty. Perhaps what we should do ...[intervention]

MR LAX: Mr Berger, I'm hearing your problem but as the map stands it's misrepresenting the situation so what I'd like to suggest, subject to your colleagues being in agreement is that we ignore the colour pink there for the time being, that at the very least you colour them orange because you say not one house was left unscathed in the sense that they were all damaged and that you leave it as an open question as to which particular individual houses somebody got killed or injured in but that you at least put it to the witness that in those houses X number of people were killed and X number of people were injured. That you do - you can say with some degree of certainly how many people died in Slovo Park and how many people were injured in Slovo Park although you can't say in which specific houses they were killed, is that right?

MR BERGER: Yes, I'll do that.

MR STRYDOM: Chairperson, ...[intervention]

CHAIRPERSON: What does the green represent?

MR BERGER: Injured Chairperson.

CHAIRPERSON: People were injured?

MR BERGER: Injured but not killed.

CHAIRPERSON: Okay, and then what does orange stand for?

MR BERGER: Houses that were damaged but no-one was killed or injured.

CHAIRPERSON: For all we know in these pink coloured houses, the houses were damaged?

MR BERGER: All of them yes.

CHAIRPERSON: Yes. And the occupants of those houses may well have been killed or injured?

MR BERGER: Yes.

CHAIRPERSON: Perhaps you should find another formula then of reflecting that because the houses that we accept that all these houses we damaged but in the course of that damage people may have been killed or may have been injured.

MR BERGER: Yes, many were.

CHAIRPERSON: And then you can give us a figure.

MR BERGER: Yes. And what we'll do is we will change the Slovo Park colour to purple or something which will then be completely different.

CHAIRPERSON: You can leave the pink except that you can indicate that pink reflects the houses that were damaged in which people could either have been killed or injured and then you can give us numbers in due course.

MR BERGER: Yes.

MR STRYDOM: To assist my learned friend, I've got the advantage that I was in the criminal trial and I've got certain schedules here and I've calculated that 16 people were killed in Slovo Park and the total of house where these people were staying in, I think one person stayed in a caravan but also in Slovo Park but that can also be called a house, it's approximately nine houses where people were killed in Slovo Park.

MR LAX: Maybe you can assist us by just giving us the rest of the stats and we get them done with in one go, you've worked them all out.

CHAIRPERSON: Mr Berger, do you accept what is said?

MR BERGER: I'm indebted to my learned friend. I will produce the statistics as well but I accept for the time being that that is exactly what happened.

CHAIRPERSON: Okay, do we know how many people were injured there? Was there any evidence?

MR STRYDOM: I can also check that on this schedule of mine. I calculate three people that testified at the criminal trial on charges of attempted murder but I must say that in my schedule I have certain people, I can calculate them but I don't have an address and they may also be people staying in Slovo Park but I'll calculate those people as well. I've got 10 names here without addresses that may be people that stayed at Slovo Park at that time.

CHAIRPERSON: Are you identifying them with reference to the charge of attempted murder?

MR STRYDOM: Yes.

CHAIRPERSON: Do these 10 include the other three?

MR STRYDOM: It does not include the other there.

CHAIRPERSON: So that's about 13 approximately?

MR STRYDOM: Ja. I'm not sure about those addresses, I'll have to check them.

CHAIRPERSON: Very well. So you don't know whether they come from Slovo Park?

MR STRYDOM: No, the last 10 I don't know whether they're from Slovo Park, I just see on my schedule for some reason or another I did not add addresses and it may be because there was not a fixed address like one would expect in Slovo Park.

CHAIRPERSON: Okay, very well. Now Mr Berger, that's okay do take, no continue.

MR BERGER: Thank you.

RECORDING EQUIPMENT SWITCHED OFF

MR BERGER: Chairperson, our information doesn't seem to tally with Mr Strydom's. What we have is a schedule detailing all the victims of the attack, house numbers in Slovo Park, people who were killed, people who were injured, as well as people in Boipatong and perhaps we could make this available to the Committee.

CHAIRPERSON: But insofar as Mr Mthembu is concerned now, what is it that you want to canvass with him in regard to this, because it may well be that with the assistance of Mr Strydom who was at the proceedings, you can check his information as against your instructions and then perhaps in due course you could then submit to the Committee the revised key to the map which would indicate to us, on the basis of an agreed fax, that is the position if you can but if you can't then you'd have to present that conflicting information. I'm just concerned about the relevance of the figures. Are the figures really relevant to cross-examination of this witness?

MR BERGER: No, no they're not.

CHAIRPERSON: They're not?

MR BERGER: They're not.

CHAIRPERSON: Okay, very well. Do you think that can be done?

MR BERGER: That can be done at a later stage.

CHAIRPERSON: Yes, indeed. If you want to canvass anything in regard to this map on a broad basis then I think you can do that.

MR BERGER: Yes, that's what I intended to do, thank you Chairperson.

CHAIRPERSON: Okay. And then perhaps if you two could just get together as soon as you can so that you can just get this information, in particular with regard to the key.

MR BERGER: We'll do that, thank you.

Mr Mthembu, coming back to this map in front of you, leave out of account for the time being Slovo Park. Now in Boipatong itself, what you see as orange, those are the houses that were attacked, pink is where people were killed and green is where people were injured. Do you understand this?

MR MTHEMBU: Yes, I do.

MR BERGER: In Slovo Park, all those houses that you see there in pink, they were attacked and in some of the houses people were killed and others were injured. Okay?

MR MTHEMBU: Yes.

MR BERGER: Now, you will notice that there is a large section of Boipatong that was not touched by the attack. You can see the lefthand side of the map and about two thirds of the way up you will see that there is no orange, no pink and no green which means that those houses were not attacked. Do you see that?

MR MTHEMBU: Yes, Sir.

MR BERGER: Do you know why that is?

MR MTHEMBU: I do not have knowledge of that.

MR BERGER: In your affidavits, in one of them, I don't have the reference now, you say that the attackers surrounded Boipatong, do you remember saying that in your affidavit?

MR MTHEMBU: Yes, Sir.

MR BERGER: It's then difficult to understand, if the attackers surrounded Boipatong and then everybody went in to attack, how it is that there is a whole section of Boipatong that is not affected by the attackers. Would you agree it's quite strange?

MR MTHEMBU: As I explained earlier Mr Berger that the amount or the number that I've explained, the 200 or 300 people I referred to, if you look at this map it shows the area of Boipatong and it is not possible for the number of people that I mentioned to surround the entire township as reflected on the map.

MR BERGER: But you yourself entered the township from Umzumvubu Street. Now you can see that the entrance to the township, that entrance that you're came in on is on the lefthand side of the map in the middle of the page, that's where you entered to the township. You can see it's written there: Umzumvubu.

MR MTHEMBU: As you are explaining as a person who doesn't know Boipatong well it is obvious from the map where we gained entrance into Boipatong.

MR BERGER: Well you told the Committee that you entered on Umzumvubu Street. I'm just pointing out where that is on the map. You can see it half way down the page but on the extreme lefthand side of the map, you see there Umzumvubu.

MR MTHEMBU: Yes, I see it.

MR BERGER: Now my point is this, if you and many of your co-attackers entered the township at that point to kill people, to damage their houses, to destroy their property, why is it that there is no destruction at all for approximately one kilometre into Boipatong, all the way along Umzumvubu Street until you get to Lekwa Street, you can see there's a park in the centre, all the way down to Bapedi Street, Majola Street, Barolong Street, Mosheshwe, going up from Umzumvubu, Mpeka Street, Batswana Street. It's only when you get to Batswana Street you can see two houses there that were attacked. Do you see that?

MR MTHEMBU: Yes, I see it.

MR BERGER: So my question to you is this, you've entered the township, you're spreading out and yet you don't attack a single house. The question is, why not?

MR MTHEMBU: Mr Berger, I think I told you before that I did not know Boipatong well. What you should note is that where it's written "Kwamadala" on the left-hand side of the map, did you say this is where houses are burnt down? What you must understand is that, as a person who doesn't know Boipatong, this is where we gained entrance into Boipatong, where houses and some people were injured.

MR BERGER: No, Mr Mthembu, you told the Committee that you entered Boipatong on Umzumvubu Street and you knew it was Umzumvubu Street because you saw the sign. Now, we can see where Umzumvubu Street is.

MR MTHEMBU: I see it, Mr Berger, but what you should know, I am trying to explain this, that as a person who doesn't know Boipatong well, if I say we went through Umzumvubu, I am trying to explain that this side of the township we went in through, from Kwamadala Hostel it is obvious from the map that which side we would enter through.

CHAIRPERSON: You see, what is being put to you is that when you testified, you suggested in your evidence that you entered Boipatong, that is you personally entered Boipatong through Umzumvubu Street, do you understand that?

MR MTHEMBU: Yes, I do.

CHAIRPERSON: Now what's being put to you is, if one accepts that you entered Boipatong through Umzumvubu Street, as you can see in Exhibit G, okay, there is nothing on the map which indicates that there is any damage to any of the houses near Umzumvubu Street. The first, at least damage to the house only occurred as from Bapedi Street. Do you understand that?

MR MTHEMBU: Yes, I do.

CHAIRPERSON: So why is it that no house was then damaged, you only started damaging houses in Bapedi Street?

MR MTHEMBU: I do not know how that happened, sir.

MR BERGER: Mr Mthembu, you must have an explanation for how that happened, because, according to you, you were simply told at the stadium, "We're going to attack Boipatong", no other plans were discussed at the stadium, or at any time, according to you?

MR MTHEMBU: In other words, are you trying to tell me that, as we are going to attack, there are many spaces in that map reflecting that there were people who were not attacked, are you trying to tell me that we should have attacked this area?

MR BERGER: I'm asking you why you did not attack this area, there's a whole area and you... (intervention).

MR MTHEMBU: Mr Berger, I do not know how this area was not attacked.

MR BERGER: Particularly since this is the area where you yourself was?

CHAIRPERSON: Well the answer is, "I don't know what happened". You can't take it further.

MR BERGER: Mr Mthembu, I'll suggest to you why this area wasn't attacked... (intervention).

MR MTHEMBU: Are you dividing this area into two? What I know is that people were attacked in Boipatong. If you ask me why we didn't attack some people or some of the area, I do not have a response to that.

MR BERGER: Isn't it correct that Mr Vanana Zulu's house was in Majola Street?

MR MTHEMBU: It is true.

MR BERGER: And I can tell you that his house was in this area of Majola Street that wasn't attacked, and that in this area of Boipatong, the residents were mainly Zulu and Xhosa speaking. Wasn't this area deliberately left alone?

MR MTHEMBU: I have no knowledge about that, sir.

MR BERGER: And you see the strangest thing of it all is that Mr Tsotso's house is also in Majola Street, in fact it's almost across the road from where Mr Vanana Zulu's house was, and his house, Mr Tsotso's house, also wasn't attacked.

MR MTHEMBU: Can I just ask Mr Berger, if you say the people at Majola speak Zulu and Xhosa, what language does Mr Tsotso speak?

MR BERGER: The point is, Mr Tsotso was the chairperson of the ANC in the area, his house was left untouched because he was living in an area where there were predominantly Zulu and Xhosa speaking people.

MR MTHEMBU: Maybe you did not understand my question, I asked what language Mr Tsotso speaks?

MR BERGER: Mr Mthembu, can I ask the questions? What I'm putting to you is that, if you were targeting the ANC, you would have targeted Mr Tsotso's house, but you didn't, you left his house alone, because he was in an area of people that you knew might be sympathetic to the IFP.

MR MTHEMBU: That is your own opinion.

MR BERGER: If you were targeting the ANC, Mr Mthembu, can you tell the Committee why it is that three year old Mita Moleti, that little girl who's in the wheelchair today, why she was stabbed, in fact her skull was hacked with a panga, can you explain that?

MR MTHEMBU: Mr Berger, what I can say is the residents of Boipatong were being attacked, we did not discriminate, it was not discriminated against as to who was being attacked, how old they were, all in all the residents of Boipatong were being attacked.

MR BERGER: So three year old Mita Moleti was a fair target, is that correct?

MR MTHEMBU: Mr Berger, what I'm saying is that the residents of Boipatong were attacked.

MR BERGER: You see, the reason I'm asking you this question, Mr Mthembu, is that Mita Moleti wants to know, she wants to know why was her skull hacked with a panga?

MR MTHEMBU: I would not know how to explain this, because the person you speak of is somebody I hope resided in Boipatong.

MR BERGER: Not only her, there was nine month old Erin Matope who was stabbed in the head and killed. My question to you is why, if you were attacking the ANC?

MR MTHEMBU: What you should understand, Mr Berger, is that a snake gives birth to another snake.

CHAIRPERSON: Sorry, could that please be repeated, I didn't hear the answer in the uproar?

INTERPRETER: The witness said a snake gives birth to another snake.

CHAIRPERSON: Yes, Mr Brink?

MR BERGER: And I take it that you would give the same answer for five year old Agnes Malindi who was killed, five year old Poppie Mbatha who was killed, eight year old Sibusiso Mzibe who was killed, seven year old Mthombe Vikile Nonjoli who was killed, same answer for all of them, "a snake gives birth to another snake", and that's why they were killed?

MR MTHEMBU: Mr Berger, what you should know is that when we went to attack, we went to attack the ANC, maybe the people you mention were also ANC people.

MR BERGER: How can a nine month old baby be a member of the ANC responsible for killing IFP members, how on earth can that be possible?

MR MTHEMBU: Maybe you don't know what the situation was like at the time. I don't know how you want me to clarify this any further.

MR BERGER: Mr Mthembu, I'm talking about a nine month old child. Please listen to my question.

MR MTHEMBU: Mr Berger, we also have children, we also have babies, nine month old babies, who were burnt in the township.

MR BERGER: Can you give me the name of the nine month old baby that was burnt?

MR MTHEMBU: I would not, because families would come to the hostel and say that they were being terrorised in the township.

MR BERGER: There was no nine month old baby that was killed in the township by members of the Self Defence Unit or any ANC member, the only nine month old baby that was killed was Erin Matope, who was killed by you and your fellow attackers.

MR MTHEMBU: In other words, Mr Berger, if I have a baby and my organisation, IFP, where will this child belong to, or this baby belong to?

MR BERGER: So, if I understand your evidence correctly, Mr Mthembu, it didn't matter how young the babies were, they were to be killed because it was possible that their parents might have been ANC members, is that correct?

MR MTHEMBU: Mr Berger, ANC people were attacked and they had children, young children who were innocent, therefore if a baby was killed, that could have happened because of the situation in the township and the community at large.

MR BERGER: The babies and the young children were killed because their parents might have been ANC supporters, is that correct, because, as you put it, a snake gives birth to another snake?

MR MTHEMBU: Mr Berger, I have responded to your question.

MR BERGER: Well then let me ask you this, Mr Mthembu, if it was your desire to kill all the snakes in Boipatong, no matter even if the snakes were nine months old, why do you say that you hid two little children under the bed in the house that you went into?

MR MTHEMBU: Mr Berger, what I expressed by a snake giving birth to another snake was a idiomatic expression.

MR BERGER: Mr Mthembu, you can't run away from that answer.

CHAIRPERSON: Put the question to him please again, he didn't understand well.

MR BERGER: You told the Committee, when I asked you why was a nine month old baby killed, you said, "A snake gives birth to another snake". If that is so, why did you not kill the two little snakes that you found, or that you say you put under the bed?

MR MTHEMBU: But I also have children as well.

MR BERGER: Well then your answers are not making sense. I'm going to ask you one more time and then I'm going to move on... (intervention).

CHAIRPERSON: What is it that you want to establish from this witness? The record speaks for itself. People were killed there, regardless of their age, whether they were young or old, it didn't matter, they were there to kill anyone. His evidence is also that he personally decided to tell those two young children to get under the bed because he didn't want to kill them, because as he has told us, he has children too. That's what appears in the record. It seems to me you can't argue with the witness, it's an argument that's being addressed to us. The record speaks for itself, the point has been made.

MR BRINK: Mr Chairman, also from a point of view of clarity, can we get on the record whether or not it's Mr Berger's instruction that the applicant was responsible for the death of the nine month old child and the, I think it was a three year old, whether he was responsible himself, personally responsible? I'd like that on record.

MR BERGER: Chairperson, I don't understand Mr Brink's objection.

CHAIRPERSON: But what he wants to find out is, are your instructions that the applicant, that is Mthembu, killed the nine month old?

MR BERGER: No, I don't have those instructions, but... (intervention).

MR BRINK: Thank you, that was all I wanted, because if it was suggested that he was responsible for those two murders of those two children, then of course no doubt he has evidence to that effect, but if he's not suggesting it, then it makes things clearer.

MR BERGER: But, Chairperson, it's not to say that Mr Mthembu did not kill those children.

CHAIRPERSON: But that's a matter for argument. All that Mr Brink is raising is raising at the factual level whether is it intended to be alleged that Mr Mthembu killed those two young children you mentioned, and your answer is no, he didn't, you don't have those instructions.

MR BERGER: No, but Mr Mthembu is legally responsible for the death of those two children.

CHAIRPERSON: That's a matter for argument, you know that, Mr Berger, that's a matter for argument. If you want to put it to him that in law he's legally responsible, then by all means do that.

MR BERGER: Mr Brink, I can also put on record that we're not in a position to say who killed who either in respect of any of the applicants.

MR BRINK: Mr Chairman, it wasn't by way of an objection, it was to get clarity, that was all, because the way the cross-examination was going seemed to suggest that this applicant was responsible for those deaths and the snake killing the snake and that sort of thing, but now it's been made clear, that's the end of the matter.

CHAIRPERSON: As I understand the line of questioning, it seems to suggest that even though he did not personally kill any one of the other persons, he is nevertheless legally responsible for their death. Is that the point you want to make?

MR BERGER: That is the point, but... (intervention).

CHAIRPERSON: Ja.

MR BERGER: Chairperson, perhaps I should get direction from the Committee. Am I not supposed to examine this particular witness on the deaths of old people, young people and babies, because I can't say that this witness actually killed all of them?

CHAIRPERSON: No, no-one is suggesting that. All that we are saying to you, all that Mr Brink was saying to you is to indicate whether it is alleged, it would be alleged by the victims that he personally killed those persons. If that is not the allegation, you are free to cross-examine the witness in regard to his legal responsibility to do that.

MR BERGER: Chairperson, if any of the residents of Boipatong were able to identify a particular person as killing a particular loved one, then I'm sure they would have given evidence at the trial to that effect. The conviction was on the basis of common purpose precisely because people cannot say who killed who, and that was apparent at the trial stage. Well I've asked you about the children... (intervention).

CHAIRPERSON: Do you still remember the question that was put to you?

MR MTHEMBU: May you please repeat the question?

CHAIRPERSON: You told us in your evidence that you did not kill or injure the two young children who are either twins or looked like twins, because you yourself had children, you were a parent.

MR MTHEMBU: Yes.

CHAIRPERSON: You've told the Committee now that in attacking Boipatong, no distinction was made as to the age of the residents, whether you're young or old, it didn't matter, you had to be killed.

MR MTHEMBU: Yes, sir, that's correct.

CHAIRPERSON: Then how do you reconcile this last statement with your earlier statement? Do you understand that? Answer the question?

MR MTHEMBU: Sir, as I have explained that we went to attack the ANC's at Boipatong. I know that children were injured, we were not necessarily looking at the age and it is therefore for this reason that we were not looking at a person's age.

CHAIRPERSON: Mr Mthembu, that we understand perfectly well, but what Mr Berger wants you to reconcile is your conduct in telling those young children to get under the bed because you didn't want to harm them, because you're a parent. How do you reconcile that with the attitude of the attackers that everyone in the Boipatong township had to be killed regardless of the age? Do you understand the question? Would you want me to put the question in Zulu to you?

MR MTHEMBU: I do understand, sir, but I don't quite understand.

CHAIRPERSON: (Puts question in Zulu). When you arrived at the house where these two children were killed, you have told the Committee that as a parent, you did not want to injure the children and you instructed them to hide under the bed, and now you are telling the Committee, when Boipatong was being attacked, you were not discriminating child, father, young and old, everybody were going to be killed. I am saying to you, would you please explain this?

MR MTHEMBU: Sir, the two children were instructed to hide under the bed because I was sympathetic, I realised that they were still young, they knew nothing. People who had to answer had already fled, but these two young children knew nothing.

MR BERGER: Mr Mthembu, you never hid those two children under the bed, if you could have killed them, you would have killed them, isn't that right?

MR MTHEMBU: No, sir.

MR BERGER: The only explanation that you have for small babies being killed is because they were the children of people who might have been ANC members, am I right?

MR MTHEMBU: Sir, we were not looking at anything like who's whose father or mother, we were just going to attack the people at Boipatong.

MR BERGER: I can give you the names of all the young people, but I'm sure it won't make any difference. Let me ask you this, old people were also killed, I can give you examples: at 1183 Mosheshwe Street a 63 year old woman, Nellie Kugu, was stabbed repeatedly in the upper thighs and shot three times; at 45 Majola Street, 62 year old Belina Lerobane died, after receiving multiple stab wounds and being shot four times in the neck. There are other examples of old people who were shot and stabbed. Is your answer the same, it did not matter how old or how young, if you were a resident of Boipatong, you were a target to be killed?

MR MTHEMBU: Yes sir, that is correct.

MR BERGER: And it didn't matter whether you were an ANC member or not, as long as you were a resident of Boipatong, you were a target to be killed, am I right?

MR MTHEMBU: Mr Berger, people at Boipatong were attacked and I wouldn't say whether a person was a member of the ANC or that organisation, there's nothing I can say about that.

MR BERGER: And it's not that people were just shot once or stabbed once, there are numerous examples of people who were repeatedly shot and repeatedly hacked and stabbed. One woman in fact was so badly stabbed, a middle-aged woman, so badly stabbed that you couldn't even count the number of stab wounds on her body. Do you have any explanation for why people were butchered in this way?

MR MTHEMBU: Mr Berger, I understand and believe that - Mr Berger, we went to attack people, it was a fight in a war situation, and yourself, as Mr Berger, if you were fighting someone, really, I don't know how you would go about doing that, we were actually fighting these people, and I won't know how many times a person was stabbed, etcetera.

MR BERGER: Many people were killed while they were sleeping. I can tell you a woman, Elizabeth Malindi, she was stabbed 15 times in her bed while sleeping, and there are plenty of other examples of people who were sleeping when they were killed. Again, if I understand you correctly, they were fair targets as well?

MR MTHEMBU: Mr Berger, you are saying these people were sleeping, but they were sleeping at Boipatong township.

MR BERGER: The same would be true for Maria Mlangene, who was pregnant at the time, she was stabbed, her foetus was killed, she was just in Boipatong, she was a target?

MR MTHEMBU: Do you want an answer on that as well?

MR BERGER: Yes please.

MR MTHEMBU: I think I have already explained that she too was attacked because she was found at Boipatong.

MR BERGER: Why was property looted, why was so much property stolen from Boipatong, what was the reason for that?

MR MTHEMBU: Mr Berger, I wouldn't explain really how that happened, but myself as Zulu, as far as I know, I discovered that, I think you too know history, there was a time when Shaka attacked people and he would confiscate the cattle, their cattle, as a sign of his victory.

MR BERGER: If you would look at page 38, paragraph 8, of your affidavit? You say:-

"We could recognise each other even at night, because we had white bandages around our heads in order to distinguish our partners. We continued to kill the residents of Boipatong until we came to the end of the township. Others stole the property inside the houses, like two plate stoves, TV's and blankets, because it was winter time and it was very cold inside Kwamadala Hostel. Maybe we took an hour or half an hour, I cannot remember."

You say property was stolen as a sign of victory?

MR MTHEMBU: As I was explaining here, I was explaining in terms of the tradition, that Shaka would conquer his enemies and confiscate the livestock. We did not necessarily take these things as an indication of victory over these people.

MR BERGER: Why did you take the things then?

MR MTHEMBU: Mr Berger, I wouldn't really answer that question.

MR BERGER: Well, you say:-

"People stole blankets because it was winter time and it was very cold."

That was why they stole blankets, correct?

MR MTHEMBU: Yes sir.

MR BERGER: Why did they steal TV's and stoves?

MR MTHEMBU: I cannot answer that, sir.

MR BERGER: People stole meat and food, why did they do that?

MR MTHEMBU: Where is that, sir, I don't know that?

MR BERGER: I'll give you an example, at 805 Bafokeng Street, there was a family who lived there, Victor Mkwana and his family. When the attackers came, they ran into a back room and they barricaded the door and the windows with all the furniture that was in the room, and fortunately they survived, and after the attackers had left, they came out of the room, they found the sitting room had been smashed completely, the front door had been broken down, the chairs had been slashed with pangas, wall unit broken, from the wall unit the attackers had taken a portable television set, a large colour television set, a video cassette recorder, dinner service and so on, ornaments, and food from a locked cupboard which had been forced open. There were bullet holes inside the house, a grandfather clock was stolen, the Disa telephone was stolen, more food in the sideboard was stolen, the dining room door was smashed, all the food in the fridge was stolen, in the main bedroom, blankets, duvets, pillows, linen, shirts, shoes, an overcoat and numerous other items of clothing were stolen.

CHAIRPERSON: Mr Berger, perhaps you should give us a list of all the items that were stolen. Seek an agreement from your colleagues to find out whether they are taking issue with whether or not food and all the other items that you are enumerating were stolen.

MR BERGER: What we'll do, Chairperson, is we will put together a list of not only things that were stolen, but people who were killed and how they were killed and all of that, we will put it to our learned friends, ask for their agreement and then hand in a memorandum to the Committee.

CHAIRPERSON: It will be very helpful, rather than going through the list of - and putting it to the witness, who apparently says he doesn't know why they were stolen.

MR BERGER: You do know, Mr Mthembu, do you not, that a vast amount of loot, by that I mean blankets, television sets and so on, all the kinds of things that I have described, were stolen from Boipatong by the attackers that night, you know that, am I right?

MR BERGER: Mr Berger, as you've just explained, I don't know why they were stealing these things, if they indeed stole these things.

CHAIRPERSON: I think what, as I understand the question, what is being put to you is this, do you accept that in the course of the attack at Boipatong certain items were stolen by the attackers, such as food, television sets and a whole variety of other goods, a list of which will be handed to us in due course?

MR MTHEMBU: Yes sir.

MR BERGER: And you don't know why?

MR MTHEMBU: No.

MR BERGER: Is your explanation about King Shaka then just something that you surmise, or is that an explanation which was given to you by somebody?

MR MTHEMBU: As I am explaining that I am giving you an example about what I learnt in the history of Amazulu. Yourself as a white person would not understand this thing. For example, women would also be abducted to become Shaka's subjects after the conquest, he would confiscate the livestock so that he could feed his people.

MR BERGER: Mr Mthembu, was the attack on Boipatong an IFP attack, or was the attack a Zulu attack?

MR MTHEMBU: Mr Berger, the attack on Boipatong was about these two organisations, the IFP and the ANC.

MR BERGER: After the attack, you went back to the stadium, where you all gathered, am I right?

MR MTHEMBU: No, no, I don't remember something like that happening.

MR BERGER: If the Committee will just bear with me please. Mr Mthembu, I can't find it now, but I'll find the reference later and come back to it.

CHAIRPERSON: Well perhaps you should try and find it now, so that we can, because we, you know, we've been going on with this witness for a long time, I think at some point we, you know, we have to come to the end of the cross-examination, so we'll give you time to look - to find the passage and go on with your cross-examination.

MR BERGER: After the attackers came back from Boipatong, they went back to the stadium. Mr Mthembu says they did not go back to the stadium.

CHAIRPERSON: Well is that where they're supposed to have gone back and when they're supposed to have burnt down the property?

MR BERGER: No, no, that wasn't that night.

MS PRETORIUS: Is that, sorry, is that when they had to hand over their weapons back... (intervention).

MR BERGER: Yes.

MS PRETORIUS: ...then the (indistinct) is on page 16, paragraph 33.

MR BERGER: No, no, this doesn't refer to that night, but thank you. Mr Mthembu, your evidence is that you never went, the attackers never went back to the stadium after the attack?

MR MTHEMBU: Mr Berger, I think you are asking me, I came back and I just went away, I didn't go to the stadium, I don't know what happened there.

MS CLOETE: May I assist, where on page 39, paragraph 10 deals when they went back to the stadium - when they went back to Kwamadala Hostel, and he says:-

"By that time, I heard the sound of ambulances. I knew they were then taking all the people who were injured to hospital. I was so tired, because it was the first time that I had done such things. I went to sleep because I was doing day shift."

That's the only reference I can get.

MR BERGER: All right. Mr Mthembu, subsequent to the attack, there were meetings in the hostel, in particular there was a meeting on the Friday, the 19th of June, am I correct?

MR MTHEMBU: Yes sir.

MR BERGER: Did you discuss with any of your fellow attackers or was it ever discussed in your present what had happened at Boipatong on the night of the 17th of June?

MR MTHEMBU: Mr Berger, what I know was discussed there was that it was no longer possible for hostel residents to go to the shops in the township. There were many police blockading the streets and people could no longer go to work. That was what was discussed.

MR BERGER: How did you know that people had stolen blankets and television sets and two plate stoves from Boipatong, how did you know that?

MR MTHEMBU: I knew about this. When we arrived back, for example, it was indicated that if there was something that was looted at Boipatong, these things should be burned.

MR BERGER: That was on the Friday?

MR MTHEMBU: Yes.

MR BERGER: But how did you know what had been looted from Boipatong, that's what I'm asking? Surely you must have discussed it with your fellow attackers?

MR MTHEMBU: These things were brought in front of people, they were burnt in my presence.

MR BERGER: You also knew that young children and old people had been killed in the attack, am I correct?

MR MTHEMBU: Mr Berger, I did not have knowledge about that, I only knew about this during our criminal trial.

MR BERGER: You never discussed it with any of your fellow comrades prior to the criminal trial?

MR MTHEMBU: No sir, I don't remember discussing it with anyone.

MR BERGER: How many, when you came back from Boipatong, you then didn't even know if anyone had been killed, am I right?

MR MTHEMBU: Yes sir, I didn't know.

MR BERGER: When did you discover for the first time that people had actually been killed in Boipatong?

MR MTHEMBU: I heard when I arrived at work on a Thursday morning.

MR BERGER: Who told you?

MR MTHEMBU: My colleagues at work.

MR BERGER: And they told you that children had been killed and old people had been killed?

MR MTHEMBU: They told me that people had been killed at Boipatong, killed by Inkatha.

MR BERGER: Please have a look at page 38, paragraph 7. You say there:-

"We came from an easterly direction to Boipatong, and we started breaking windows and doors. All property inside the homes had to be broken. If we came across a human being, we had to kill him or her with pangas and spears. We killed even young children, because these impis were now angry and this anger was caused by the intelezi(?) that was sprinkled on us. We did not know how many people we killed or injured during that night of the attack."

Is that paragraph correct?

MR MTHEMBU: Yes, it is correct.

MR BERGER: If you came from an easterly direction to Boipatong, it means you started your killing spree in Slovo Park, doesn't it?

MR MTHEMBU: As far as I know, I was explaining the direction from which we came, an easterly direction. Westerly direction, I don't know if you know where Slovo Park is?

MR BERGER: If one goes to Boipatong and one looks at Slovo Park and Boipatong, the distinction is very, is not very clear, there's one street on one side of the road is Boipatong, on the other side of the road is Slovo Park, and Slovo Park is a very small area. So what I'm saying to you is that you were part of the attackers that started on the eastern side of the township and you made your way through the township, isn't that right?

MR MTHEMBU: I hear that from you, I don't know about it.

MR BERGER: You see, Mr Mthembu, the attackers attacked Boipatong from different angles, different sides, some came from the east or from the side of... (intervention).

CHAIRPERSON: Wait a minute, what do you say to that? It's being put to you that the attackers attacked Boipatong from different sides, what do you say to that?

MR MTHEMBU: I will not be able to say that they came from different directions, but from what you have explained, this is the route taken by the attackers, but I cannot comment where they came from, or the route that they used.

MR BERGER: How did you get out of the hostel, what route did you take?

MR MTHEMBU: We took the route that went along the main gate at Kwamadala.

MR BERGER: You went out of the main gate?

MR MTHEMBU: Yes.

MR BERGER: And you then came along Noble Boulevard, you went under the bridge towards Boipatong?

MR MTHEMBU: Yes.

MR BERGER: And when you got to the corner of Noble Boulevard and Frikkie Meyer Boulevard, you then split into various groups, is that what happened?

MR MTHEMBU: I did not see when we separated, but I just realised when we entered the township that we were now entering the township.

MR BERGER: You see because if you look at the map in front of you, some of the attackers started or came from the east, that is in the area around Slovo Park, and those attackers, after they had finished with Slovo Park... (intervention).

CHAIRPERSON: Mr Berger, where is that indicated on the map?

MR BERGER: It's not indicated on the map, Chairperson. I'm putting to the witness the areas from which the attackers came and I'm asking him to look at the map so that he can orientate himself. If it will assist the Committee, we can put arrows onto the map, just to indicate the directions in which we say the attackers came. Some of the attackers moved down into Slovo Park, others moved across the northern side of Boipatong, and eventually exited out Bafokeng Street, do you see there at the top there, the second street is Bafokeng?

MR MTHEMBU: Yes sir.

MR BERGER: And then a third group of attackers came from the southern side of the township, entering the township via Lekwa Street, it's at the bottom in the middle there, and moving along different streets towards the east and towards the north, and then also making their way out along Bafokeng Street?

MS PRETORIUS: Mr Chairperson, I don't think there has been any evidence before this Committee that there were three groups in the township that night. If my learned friend put it to him and asked him whether there were three groups, then I agree, but you put it to him as a fact. I don't think that is correct.

CHAIRPERSON: I'm assuming that there would be evidence, you know, coming from Mr Berger indicating that, you know, there were three groups.

MS PRETORIUS: Then I'll leave it at that.

MR BERGER: What I can say, Chairperson, is that if one analyses the houses which were attacked that night, and that analysis has been done, certain routes, also on the basis of eye witness accounts of people, certain routes were plotted, and there... (intervention).

CHAIRPERSON: Look, you can get on to the point. Continue with your questions.

MR BERGER: Thank you, Chairperson.

CHAIRPERSON: Yes.

MR BERGER: Mr Mthembu, it appears that the attackers struck, I'll put it this way, the attackers struck from three main areas, three different main areas, one being in Slovo Park, one being along the northern side of Boipatong and the other being from the southern side, moving east and north. Can you help the Committee as to whether or not there were in fact three groups of attackers?

MR MTHEMBU: Mr Berger, you are telling me that there were indeed three groups. What I can say is, according to your map, or rather as reflected in your map, I think people have told you how the attackers conducted the attack, you were not there. Hearsay and what you see for yourself are two different things.

CHAIRPERSON: It's being put to you, either as a fact or as a suggestion, is that there appears to have been three groups or attacks from three directions. What do you say to that, do you have any personal knowledge of that?

MR MTHEMBU: I do not have any knowledge about that, sir.

MR BERGER: Also, there is evidence that the attackers who started attacking from Slovo Park were in fact transported to Slovo Park in police vehicles?

MR MTHEMBU: I have no knowledge of that, sir.

MR BERGER: What I want to put to you, Mr Mthembu, is that this attack on Boipatong and Slovo Park must have been very well planned.

MR MTHEMBU: I have no knowledge of that, sir.

MR BERGER: I want to read to you what your lawyers said on your behalf at the criminal trial. Chairperson, I'm reading from page 78 of a document, the heads of argument which were submitted on behalf of the accused at the trial. It is said there on your behalf:-

"Ten eerste is dit duidelik op die totaliteit van die getuienis dat die aanval gepaard moes gegaan het met uiterste fyn beplanning en met militêre presisie uitgevoer is."

In other words, the evidence which was led at the criminal trial made it clear that the attack... (intervention).

CHAIRPERSON: That's a submission by the lawyers who were acting on his behalf at the trial?

MR BERGER: Indeed, yes.

CHAIRPERSON: Do you follow what's being put to you?

MR BERGER: There was evidence led, and I'm sure that that evidence about who was killed and where they were killed and so on is not disputed, and your lawyers said on your behalf that it was clear from that evidence that the attack must have been preceded by very careful planning, if my translation is accurate, and that it was carried out with military precision. Now, I want to ask you, or I want to put it to you that your evidence cannot be true that you were simply called to the stadium and told, "We're now going to attack Boipatong" and there was no planning, all that happened was, you all got your weapons and off you went to kill as many people as possible, that is not the way it happened?

MR MTHEMBU: I was responding to your questions and I was telling you what I knew and what happened.

CHAIRPERSON: At your trial, your lawyers submitted that, on the evidence in court that had been led before the Court, it was clear that the attack on Boipatong had been planned, well planned, and was executed with what was described as military precision. Do you understand what your lawyers said on your behalf at the criminal trial?

MR MTHEMBU: Yes, I understand.

CHAIRPERSON: Do you agree with that?

MR MTHEMBU: I do not agree with what the lawyers said, because I was sentenced despite their claims.

CHAIRPERSON: Given the submission made on your behalf by your legal representative at court, which was based on the evidence in court, your evidence before this Committee that you were simply called onto the stadium without any prior knowledge and told to go and attack Boipatong is simply not true, is that what you... (intervention).

MR BERGER: Yes, that is what I wanted to say.

CHAIRPERSON: What's your comment on that?

MR MTHEMBU: What I can say is that I was called into the stadium on that day and told about it. I cannot comment on what the lawyers said, because I don't know about it.

MR BERGER: You've told the Committee that you've not been trained, well let me not misrepresent to you, you have not had military training, you've just been to the shooting range?

MR MTHEMBU: That is correct.

MR BERGER: You cannot explain how it is that the attack appeared to have been carried out with military precision, you just say, "We went along with no planning and killed people at random", am I right?

MR MTHEMBU: Yes sir.

MR BERGER: Did you, you went along willingly, am I right?

MR MTHEMBU: Yes sir.

CHAIRPERSON: Mr Berger, how many more questions do you have of this witness?

MR BERGER: Chairperson, I have approximately eight or nine pages of questions for this witness.

CHAIRPERSON: Okay, maybe we should adjourn at this stage. We'll return at quarter past two.

COMMITTEE ADJOURNS

ON RESUMPTION:

MR BRINK: ...requested by one of the interpreters to draw the Committee's attention to the fact that when Mr Lax asks questions, having to share a microphone with you, Mr Chairman, his questions aren't easily audible, and if possible, when Mr Lax does want to ask a question, if he could take your microphone and put it in front of him?

CHAIRPERSON: I see, Mr Berger, that you have just, you've handed us your heads of argument on the (indistinct). Yes, thank you very much.

MR BERGER: Yes, I've also furnished Mr Brink with a copy, because I thought he might be interested in the argument.

MR BRINK: Yes, indeed, indeed.

CHAIRPERSON: All right, so everyone has a copy of this. We can go on.

MR BERGER: No, not the counsel for the SADF nor counsel for Mr Mthembu, I didn't think that they were interested, but if they are interested in this argument, we can... (intervention).

CHAIRPERSON: Apparently you have a passing interest in the matter?

MS PRETORIUS: There is no urgency about it, Mr Berger.

CHAIRPERSON: They said they have a passing interest in the matter.

MR BERGER: Well it doesn't affect any of their clients, that's the point.

CHAIRPERSON: Well, excepting of course if they want to be drawn into the argument, which is their privilege. Yes, very well, Mr Mthembu, might I remind you that you're still under oath.

MS PRETORIUS: Mr Chairperson, I just would like to report, I did speak to the State advocate, unfortunately they do not have the map at hand, he'll try and get hold of it, but he doesn't think he'll be successful, but he will let me know as soon as he can get it.

CHAIRPERSON: It would have been handed in as an exhibit though, would it not?

MS PRETORIUS: Apparently it was on loan from the South African Defence Force, but he will see what he can do about it.

CHAIRPERSON: Well your colleagues are just behind you, you can talk to them.

MS PRETORIUS: I can, but they are helpful in that regard, Mr Chairperson.

CHAIRPERSON: Very well. And the aerial photographs?

MS PRETORIUS: The same.

CHAIRPERSON: The same?

MS PRETORIUS: Yes.

CHAIRPERSON: We have the South African Defence Force here, so they will provide those particulars. Yes, very well. Yes, Mr Berger.

MR BERGER: Thank you, Chairperson.

VICTOR MTHANDENI MTHEMBU: (still under oath)

CROSS-EXAMINATION BY MR BERGER CONTINUES: Mr Mthembu, I'm going to try and move as fast as possible, so please I'm asking you, listen to my questions and answer just my questions, if you would.

CHAIRPERSON: Let me emphasise that, Mr Mthembu, that when the question is put to you, if you can answer the question with a yes or no, please do so, but more importantly, if you do not understand the questions, you've got to say so, so that the question can be repeated to you. Do you understand that?

MR MTHEMBU: Yes, I do understand.

MR BERGER: Mr Mthembu, what political objective did you think you would achieve by killing all the residents of Boipatong as you planned to do?

MR MTHEMBU: As I have explained before, I did not have the opportunity to go to school, but I think that had I had the chance to go to school, I would have tried to come up with a solution so that the conflict between the two organisations is addressed, bring the leadership of the two organisations so we can resolve the matter.

CHAIRPERSON: Let me explain the question to you, in your application for amnesty, you've stated that the attack on Boipatong was politically motivated, do you understand that, in other words it was associated with politics, do you understand that?

MR MTHEMBU: Yes sir.

CHAIRPERSON: What Mr Berger wants to know is, he's directing this question to you specifically, what political objective did you hope to achieve by killing all the residents of Boipatong? Do you understand the question now?

MR MTHEMBU: Yes, I do understand, but then I don't have an answer to that.

MR MALINDI: I'm sorry, Mr Chairperson, maybe if I can ask this question, Mr Mthembu has been repeating, saying he's not educated, if I may ask him what standard did he pass at school?

MR MTHEMBU: Standard nine.

MR MALINDI: Thank you, Mr Chairperson.

MR BERGER: Mr Mthembu, you've told the Committee that there were no meetings prior to the one on the 17th of June at which the attack was discussed. Isn't it correct that a week or two before the attack, the possibility of an attack on Boipatong was discussed at the Kwamadala Hostel?

MR MTHEMBU: Mr Berger, I don't know that.

MR BERGER: You did not hear of any such meeting?

MR MTHEMBU: No sir.

MR BERGER: On the Sunday before the attack, there was a meeting of all the men of Kwamadala Hostel in the stadium, is that correct?

MR MTHEMBU: I don't know whether I was present or not on that Sunday.

MR BERGER: Let me try and refresh your memory, Mr Themba Khosa addressed that meeting, do you remember it?

MR MTHEMBU: No, I don't remember.

MR BERGER: And a certain Mr Dlamini also addressed that meeting. This Mr Dlamini came from KwaZulu Natal.

MR MTHEMBU: I don't know whether he was present at the meeting or not, I wouldn't say, because I may not have been present on that day.

MR BERGER: This Mr Dlamini was accompanied by a bodyguard called Gabelo, and this Mr Dlamini was sent to Kwamadala by a minister who lived in Durban. Does any of this ring a bell?

MR MTHEMBU: Yes sir.

MR BERGER: Do you remember the meeting now?

MR MTHEMBU: I don't remember the meeting. I am answering to the question about Mr Dlamini.

CHAIRPERSON: Well no, what he's put to you is that, firstly, Mr Dlamini was accompanied by a bodyguard by the name of Gabela or Gabelo.

MR MTHEMBU: Gabelo.

CHAIRPERSON: Yes. In addition, Mr Dlamini had been sent to Kwamadala Hostel by a minister who lived in Durban. Do you know anything about that?

MR MTHEMBU: No, I don't know anything about that.

MR BRINK: Sorry, Mr Chairman, you're referring to a minister, that could be a minister of the church or a minister in the Kwazulu government. Could that be clarified?

MR BERGER: Well the witness doesn't seem to have a difficulty... (intervention).

INTERPRETER: The witness says he doesn't know.

MR BERGER: ...the witness doesn't seem to have difficulty with that description. A minister from Durban, either a religious minister or a minister in the Kwazulu government, do you know of any such minister who would have sent Mr Dlamini to the Kwamadala Hostel?

MR MTHEMBU: I know Mr Dlamini to have been an ambassador, so to speak, or a representative of the movement in Vereeniging, who was taking care of the needs of the IFP members in this area.

MR BERGER: And he was sent by a minister of the IFP from Durban?

MR MTHEMBU: Yes, that's how I know it to have been.

CHAIRPERSON: He was sent by the minister of the IFP?

MR BERGER: Correct, yes.

CHAIRPERSON: Do you know that Mr Dlamini was there, having been sent by a minister of the IFP?

MR MTHEMBU: I can explain, sir, that he was in the Vaal Triangle area, not that he was sent on that day to attend the meeting.

CHAIRPERSON: You've told us that you know Mr Dlamini as the IFP representative in Vereeniging, but what's being put to you is that, all of this flows from the question of a meeting that was held on a Sunday a week just before the attack on Boipatong. What is being put to you is that Dlamini was there, having been sent to Kwamadala Hostel by a minister of the IFP?

MR MTHEMBU: Yes, I do understand that, but there's nothing I can say about it.

MR BERGER: Your evidence is that you do not recall such a meeting, you know nothing about it, is that right?

MR MTHEMBU: It's been a long time, sir, I wish for you to understand that, and I therefore cannot remember so many things as to what was happening at what time.

MR BERGER: Well let me refresh your memory please. Have a look at page 8, paragraph 11:-

"On the Sunday before the Boipatong massacre, Themba Khosa and Dlamini came to address a meeting of the people in the stadium. Other residents of the Kwamadala Hostel were present. Only the men of the Kwamadala Hostel were present. Dlamini was accompanied by a member of the Kwazulu police, Gabelo, who was his bodyguard."

Do you remember now?

MR MTHEMBU: Sir, as I have indicated to you that I am not in the position to remember everything that happened. This may well mean that this is what happened.

CHAIRPERSON: But you now remember that on a Sunday before the Boipatong massacre, Themba Khosa and Dlamini came to address the people at the stadium?

MR MTHEMBU: Yes sir.

MR BERGER: Mr Mthembu, you were asked a question at page 20, paragraph 20.4, you were asked:-

" Who is Dlamini, who you allege was present during this meeting, and what is his position in the IFP?"

Your answer, at page 31, 20.4:-

"He is an honourable man who was sent by a minister of the IFP from Durban to look after the members of the IFP in the Vaal Triangle as a whole."

This answer of yours was signed by you on the 3rd of June 1998.

MR MTHEMBU: Yes, I signed it, I have answered that question.

MR BERGER: You were also asked about a meeting, I'll give you the question, question 19:-

" You state that you were present at the general meeting held in the hostel approximately a week before the attack?"

You were asked:-

" Was Mr Themba Khosa present during this meeting?"

Your answer was:-

"No."

You were then asked:-

" Did Mr Mbeki Sene Mkhize personally address and warn hostel dwellers during this meeting to be prepared because of the pending attack?"

Your answer is:-

"Yes."

Now it seems as though there were two meetings, there was one meeting on the Sunday, which was addressed by Mr Themba Khosa, and there was one meeting held in the hostel approximately a week before the attack, where Mr Themba Khosa was not present, and which was addressed by Mr Mbeki Sene Mkhize, who warned hostel dwellers to be prepared because of a pending attack.

MR MTHEMBU: Mr Berger, now I have just indicated to you this happened a long time ago, the meeting that was held, I want to say the meeting was held at that time because there was going to be an attack. There used to be meetings and Themba Khosa used to come to address people if something was going to take place wherever, he would come to inform us about those meetings pertaining to the organisation. He did not necessarily come to the meeting that day because there was to be an attack on Boipatong.

MR BERGER: Mr Mthembu, is it your evidence that there were two meetings, one that was addressed by Mr Mkhize approximately a week before the attack, and one that was addressed by Mr Themba Khoza on the Sunday preceding the attack?

MR MTHEMBU: Maybe you were told about these, sir, but I will tell you that the meeting that was attended by Mkhize was the one held on the 17th of June 1992, not that the meeting held on Sunday was with an intention of explaining to us what we should do, as you have just explained it.

CHAIRPERSON: Well, as far as you can recall, there was a meeting on a Sunday preceding the attack on Boipatong, which was addressed by Themba Khosa, and there was no other meeting after that, other than the one on the evening of the 17th of June 1992?

MR MTHEMBU: That's what I've just explained, sir.

MR BERGER: Which minister had sent Mr Dlamini to the Vaal? Sorry, that wasn't interpreted.

MR MTHEMBU: I'm not in the position to say he was sent by the executive committee from Durban.

MR BERGER: The executive committee of the IFP?

MR MTHEMBU: Yes, that is correct, sir.

CHAIRPERSON: You assumed that that was the position?

MR MTHEMBU: Yes sir, that was my assumption because I too did not know Mr Dlamini and when he arrived he was introduced to us in one of the meetings where it was indicated that he is coming from Durban. I would say... (intervention).

CHAIRPERSON: Let's put it this way, you see on a Sunday when Dlamini came, was that the first time he was coming to Kwamadala Hostel?

MR MTHEMBU: No sir, as I have explained that it was not for the first time that he came, and the meeting was not necessarily held because it was Sunday, now he used to frequent the hostel.

MR BERGER: When Dlamini was first introduced to you at one of the earlier meetings, he was introduced as somebody who had been sent by a minister of the IFP in Durban, is that right?

MR MTHEMBU: When I first heard about Mr Dlamini, that was just before we went to a meeting in Zone 7 in 1990.

MR BERGER: My question is, he was introduced as somebody who had come from Durban, having been sent from Durban by an IFP minister, is that how he was introduced to you?

MR MTHEMBU: Yes sir.

MR BERGER: Now let's move, if we can, quickly to the meeting on the Sunday. Both Mr Dlamini and Mr Themba Khosa addressed this meeting, correct?

MR MTHEMBU: Even though I cannot remember, but really they had come to the meeting with a purpose.

MR BERGER: But you cannot remember the purpose?

MR MTHEMBU: No, I don't remember, sir.

MR BERGER: I suggest to you, Mr Mthembu, that you are being selective again in your memory. You have been through the documents, your affidavits, recently with your advocate and there are certain things here, I'll take you, for example, to paragraph 12, page 8, where you deal with the role of Mr Dlamini. You say there that he said:-

"There was a meeting because our people were dying. They were being killed by the ANC people and Umkhonto we Sizwe. Dlamini said this problem must be reported to Buthelezi."

You don't remember any of this, Mr Mthembu?

MR MTHEMBU: Mr Berger, I have just explained to you, I am not in the position to remember everything, it's been six years now since this thing happened.

MR BERGER: It's less than two years since you wrote these words, Mr Mthembu. How is it that you have forgotten anything about this meeting? Is it perhaps because it was at this meeting that the attack on Boipatong was discussed by Mr Themba Khosa and Mr Dlamini?

MR MTHEMBU: Mr Berger, if there was something that I knew, I would tell you, I would not hold it back, and I've just indicated to you that I cannot remember certain things, how then do you expect me to change, I just cannot bring my memory back.

CHAIRPERSON: Mr Mthembu, Mr Dlamini was the representative of the IFP in Vereeniging?

MR MTHEMBU: Yes, that is correct, sir.

CHAIRPERSON: Now if the IFP members in Vereeniging had any problems, would he be the person that these problems would be reported to?

MR MTHEMBU: Yes, that is correct, sir.

CHAIRPERSON: I see. Yes?

MR BERGER: When Dlamini says that the problem must be reported to Buthelezi, page 8, paragraph 12 of your affidavit, which Buthelezi was he referring to?

MR MTHEMBU: How many Buthelezis do you know, Mr Berger, because here they were talking about the IFP minister, Mr Mangesoto Buthelezi, really I don't know which Buthelezi you want me to talk about now?

MR BERGER: Well, amongst two of your applicants there are two people named Buthelezi, that's why I asked the question, but you've clarified it now that the Buthelezi referred to in paragraph 12 is Minister Mangesoto Buthelezi.

MR MTHEMBU: I would tell you that, I would tell you that.

MR BERGER: So would it be correct then to say, Mr Mthembu, that the problems of the hostel residents in Kwamadala were known through the ranks of the IFP all the way up to Minister Mangesoto Buthelezi?

MR MTHEMBU: Would you please repeat, I did not get the question?

MR BERGER: Would it be correct to say that the problems of the IFP members in Kwamadala hostel were known through the ranks of the IFP all the way up to Minister Mangesoto Buthelezi?

MR MTHEMBU: Mr Berger, I wouldn't know that, I wouldn't know whether they knew or not, but what I know is that Mr Dlamini was the IFP representative in the Vaal Triangle, I think he is the person who is most suitable to answer that question as to how many people knew and how many people did not know.

MR BERGER: Where is Mr Dlamini today?

MR MTHEMBU: You are asking a wrong person, I don't know.

MR BERGER: Mr Themba Khosa also addressed that meeting on the Sunday. You say in paragraph 13 on page 9:-

"He was also angry at the killing of his people and said if the people came and attack you, you are supposed to fight back and kill them."

Do you remember that, Mr Mthembu?

MR MTHEMBU: Sir, I've just explained to you that I don't remember certain things, I cannot say I remember things, whereas I don't.

MR BERGER: Mr Mthembu, is it your evidence that you have no recollection whatsoever of this meeting at all?

CHAIRPERSON: Are you referring to the meeting of... (intervention).

MR BERGER: The meeting on the Sunday, which was addressed by Mr Themba Khosa and Mr Dlamini, is it your evidence that you cannot recall anything about this meeting whatsoever?

MR MTHEMBU: I think you don't understand, sir... (intervention).

CHAIRPERSON: In your affidavit, you refer to a meeting that was held on a Sunday just before the attack, the meeting which was addressed by Mr Themba Khosa and Mr Dlamini.

MR MTHEMBU: Yes, that is correct, but then I've just explained to Mr Berger that I don't know what they discussed, and therefore I'm not in the position to say what they said.

CHAIRPERSON: Yes, but you do recall that such a meeting did take place, what you cannot recall is what was said at that meeting?

MR MTHEMBU: Yes, that is correct, sir.

MR BERGER: So you remember Mr Themba Khosa coming to the meeting?

MR MTHEMBU: Mr Berger, I do remember Mr Khosa attending the meeting. I have just explained that Mr Khosa was not coming there for the first time, he used to come.

MR BERGER: So then if the attack was discussed at that meeting, you would not remember it, correct?

MR MTHEMBU: I would tell you if the attack was discussed at the meeting.

MR BERGER: And you are telling me that the attack was not discussed at that meeting, of that you are sure?

MR MTHEMBU: Mr Berger, I am saying to you I do not remember what was said at the meeting, that's all.

MR BERGER: Surely, Mr Mthembu, if there was going to be an attack on Boipatong on the Wednesday, it would have been discussed with IFP leaders on the Sunday?

MR MTHEMBU: That's what you say, sir.

MR BERGER: And you cannot say if it was discussed or if it wasn't discussed?

MR MTHEMBU: You are the one telling me, what should I say?

CHAIRPERSON: That doesn't help us, Mr Mthembu. If you agree with him, say so, if you do not agree with him, say so.

MR MTHEMBU: I don't agree with what he is saying, he is just reading from the paper and speak to me as well as he wish, I don't agree with what he is saying.

MR BRINK: Mr Mthembu, you say you don't agree with him, why don't you agree with him?

MR MTHEMBU: I do not agree with him because I have just said I don't remember what was said at the meeting, that is why I don't agree with him.

MR BRINK: So surely if you don't remember what was said, you can't agree or disagree with him, isn't that fair? You can't remember?

MR MTHEMBU: Yes sir.

MR BRINK: Thank you.

MR BERGER: So it's possible, Mr Mthembu, that an attack on Boipatong was discussed that Sunday with Mr Themba Khosa and Mr Dlamini, is it not?

MR MTHEMBU: I have no knowledge of that, sir.

MR BERGER: I take it that you also won't be able to say what Mr Themba Khosa meant when he said you are supposed to fight back and kill them? All right, you can't answer that one. Let me ask you this, surely if there was going to be an attack on Boipatong, you, as an IFP leader, when you heard it on that Wednesday night, would have realised this could have terrible consequences, or it could have great consequences, this attack on Boipatong, did you realise that?

CHAIRPERSON: You're referring to the 17th?

MR BERGER: To the 17th, yes.

MR MTHEMBU: I would not have known at the time, sir, because it might as well happen that I too was angry at the time, I would not have known what consequences there would be, bad or good.

MR BERGER: Did it not occur to you, as a leader of the IFP, on that Wednesday night, to discuss with your other leaders whether or not this has the blessing of the senior structures of the IFP, for example the provincial structures or the national structures of the IFP?

MR MTHEMBU: Mr Berger, if a meeting is called here at the time during which the meeting was called, I think you too would not have had an opportunity to go and discuss with your colleagues with the discussions about that.

CHAIRPERSON: So are you saying that, even if you wanted to discuss this with your colleagues, you would not have had the opportunity to do so?

MR MTHEMBU: Yes, that's what I am explaining.

MR BERGER: Were you forced into the attack?

MR MTHEMBU: I cannot say if there was force used, I was not forced.

MR BERGER: Page 37, paragraph 5, you say:-

"After a few minutes, Mr Quanqua told all of us at the meeting to go and fetch our traditional weapons. We did as he told us because there was no-one amongst us who could disagree with him. All of us were afraid of him."

MR MTHEMBU: What do you want me to say to that?

MR BERGER: Did you go on the attack because you were afraid of the consequences which would come to you if you refused to go on the attack?

MR MTHEMBU: Mr Berger, as I have explained that I was not forced, I think that is the most appropriate answer.

MR BERGER: When then do you say:-

"We did as he told us because there was no-one amongst us who could disagree with him, all of us were afraid of him."

Are you not saying here that if you were not afraid of him, you would have disagreed?

MR MTHEMBU: Mr Berger, how would I have disagreed with him, because he is my elder and our people were being tortured and harassed at Boipatong?

MR BERGER: Mr Mthembu, what then did you mean by the two sentences:-

"We did as he told us because there was no-one amongst us who could disagree with him. All of us were afraid of him"?

MR MTHEMBU: I think you are asking this for the third time and I still have just one response to the question.

MR BERGER: So your answer is, you were not afraid of Mr Quanqua?

MR MTHEMBU: Sir, you must realise that being afraid of a person and respecting him are two very different things.

I should have listened to him, because he was my elder. I regarded him as a respected person because he was my elder. When he said something, I should have listened to him because he was my elder. I think that when Mr Berger's father talks to him, he listens, because he is older than he is.

MR BERGER: Mr Mthembu, my difficulty is what you say at page 37, paragraph 5. Am I to understand your evidence that you were not afraid of Mr Quanqua?

MR MTHEMBU: I was not afraid of him, but I respected him.

MR BERGER: You were not afraid of the men from Umsinga either?

MR MTHEMBU: I was afraid of them.

MR BERGER: And they were part of this attack on Boipatong, were they not?

MR MTHEMBU: Yes.

MR BERGER: And if you were not a part of this attack, were you not then risking yourself that the men from Umsinga might take action against you?

MR MTHEMBU: If they were to take action, they would be doing what they thought was best.

MR BERGER: Let me ask you this question, did you go on the attack because you were afraid of the men from Umsinga?

MR MTHEMBU: I went because our people were being killed in Boipatong.

MR BERGER: Not because you were afraid of the men from Umsinga?

MR MTHEMBU: No.

MR BERGER: Is it correct that Iscor is a factory that works 24 hours a day?

MR MTHEMBU: I don't know about that, sir.

MR BERGER: I'm sorry I didn't get the full interpretation of what the witness said?

INTERPRETER: The witness said he would not know about that.

MR BERGER: Let me read certain things to you. Your lawyers at the criminal trial made certain submissions on your behalf. At page 78 of their heads of argument, they say that:-

"Iscor is a factory which works 24 hours a day."

You, as an employee of Iscor, would have known that, am I right?

MR MTHEMBU: As I was working at Iscor, I knew of only my working hours of my shift. I was concentrated on what I was responsible for or what I did, not the entire company, as such.

MR BERGER: The tarred road in front of the hostel is used 24 hours a day and it is lit, there are lights there at night. Can you confirm that?

MR MTHEMBU: I don't know which road you are referring to.

MR BERGER: The very road that you took to Boipatong. You said you came out of the front of the hostel, you walked along that road, under a bridge, to Boipatong. That road is used 24 hours a day and it is lit at night.

MR MTHEMBU: I hear what you're saying.

MR BERGER: There are security personnel who patrol the area on a 24 hour basis, and the Vaal Commando also patrols the area, that's the army, and they, the words used here are "begelei skofte", they transport or accompany, accompany shifts who are coming off from work to and from the hostel, in other words there's constant activity, the Vaal Commando is there, the security personnel from Iscor are there, you can't dispute any of that, am I right?

MR MTHEMBU: I will not dispute it. That is what you are telling me.

MR BERGER: Now, I want to read to you what was said at 79 on your behalf. It was submitted, and perhaps I should read the Afrikaans:-

"Dit word respekvol gesubmiteer dat dit uiters onwaarskynlik is dat hierdie roete..."

this is the route in front of the hostel, or out of the main gate:-

"...gevolg sou gewees het deur die aanvallers. Veel eerder sou 'n klandestiene roete wat deur die agterkant van die hostel kon gelei het gevolg gewees het of daar sou by 'n voorafgereelde plek byeengekom gewees het."

Now, according to you, you didn't go out the back of the hostel, correct?

MR MTHEMBU: No, we used the main gate.

MR BERGER: And you didn't come together at a pre-planned place either?

MR MTHEMBU: I do not have knowledge about that, sir.

MR BERGER: The submissions go on to say:-

"Verder sou veel eerder gebruik gemaak gewees het van voertuie wat aanvallers aan die agterkant van Slovo Park kon aflaai."

In other words, more probably vehicles were used to transport the attackers to the back of Slovo Park?

MR MTHEMBU: I have no knowledge of that, sir.

MR BERGER: Now you see, my questions come down to this, you are not telling the truth when you say that police vehicles were not used to transport some of the attackers?

MR MTHEMBU: If that is the case, sir, do you mean that since I did not see a police vehicle nor being in one, it must be different people who were attacking that area, not us, is that what you mean?

CHAIRPERSON: What he is putting to you and what you must answer is that he's saying you are not telling the truth when you say that police motor vehicles were not used to transport the attackers. What do you say to that?

MR MTHEMBU: I say I have no knowledge of that, sir.

MR BERGER: And you are not telling the truth when you say that the police, the defence force, and I'm going to add as well, as though you haven't said it, Iscor, were not aware of the fact that the attackers were moving from the hostel towards Boipatong?

MR MTHEMBU: I have no comment on that.

MR BERGER: Well, let's take Iscor. On your number 330 heavily armed men with pangas and axes and AK-47's, come out of the main gate of Kwamadala Hostel and move in the direction of Boipatong, and they go directly past a 24 hour security, Iscor security, are you saying that you could not have been seen, or perhaps the security might have missed you?

MR MTHEMBU: With regards to that, sir, I think you may not know where the main gate is at Kwamadala and where the security force gates or their offices are.

MR BERGER: You see, Mr Mthembu, it was argued on your behalf at the trial that the attackers could not have come out of the main gate, because if they had done so, they would have been seen by the security personnel, by the Vaal Commando, by any number of security forces, that's what was argued on your behalf.

CHAIRPERSON: Well, Mr Mthembu, having regard to the route that you say you used on the day in question, did you go past Iscor security?

MR MTHEMBU: When we exited through the main gate, or when we exit through the gate, we did not pass the security guards from Iscor. I can see that the honourable sir doesn't know what he is talking about.

CHAIRPERSON: At the trial it was argued on your behalf that you could not have passed in front of the Iscor security without them noticing you, is that what was sub... (intervention).

MR STRYDOM: Can I clarify something here?

CHAIRPERSON: ...what was submitted?

MR BERGER: Not only that, and also moved along the road, which was patrolled on a 24 hour basis by Iscor security, Vaal Commando and so on.

CHAIRPERSON: Ja. That is what was put on your behalf. Do you agree with what was put on your behalf?

MR MTHEMBU: Because this pertained to the trial, I think the lawyers who were defending us were trying to set us free, I cannot say that I used a route if I did not use it.

MR BERGER: From that main gate, the Kwamadala main gate, to Iscor is about 300 metres, am I correct? And you would pass Iscor on your way to Boipatong?

MR STRYDOM: Can I just intervene here, I just want to set something correctly? I think if we get the photographs, the position will be made clear. If one leaves through the main gate, you get to the tar road, and about 300 metres back on that tar road, away from Kwamadala, you get the security gates, so you don't really pass the security gates. What was argued as a probability during the course of the trial was that there was activity on a 24 hour basis and it's highly improbable that if a group of 300 people moved along that tar road, that they would not have been seen, that was the argument during the trial.

CHAIRPERSON: Well, that's what I understood to be the argument, yes, it was put no higher than the probabilities.

MR STRYDOM: Yes, it's only on a probability basis, because our instructions were that Mr Mthembu, for instance, was not part of the attack, so we just argued on probabilities at that stage, and I can also mention these probabilities were rejected by the trial judge because the accused at that trial were convicted.

MR BERGER: Well one can't, with respect, have one's cake and eat it. What was submitted, and on the basis of evidence, was that it was "uiters onwaarskynlik", that it was not just improbable, that it was highly, highly improbable, that a group of 300 attackers would not be picked up.

CHAIRPERSON: But the difficulty that we have here is that we don't have the benefit of that argument, I mean of the evidence that was before the trial court, on the basis of which those submissions were made, so we are not in a position to comment on the probability or otherwise of whatever submission was made, you know, at the trial, but I understand the point that you're making.

MR BERGER: Well perhaps, Chairperson, we'll get those facts agreed and placed before the Committee in due course.

CHAIRPERSON: It does seem, Mr Strydom is nodding his head, which I think is the proper way to deal with the issue.

MR BERGER: Whether or not you would have been picked up or discovered, there was always the risk, I put it to you, of discovery by either Iscor, the Vaal Commando, the police, someone else, and what I want to ask you is, how could you, as one of the attackers, have followed such a blatant route, such an open route, without fearing that you would be discovered by one or other of the security forces? Do you understand my question?

MR MTHEMBU: Yes, I understand the question.

MR BERGER: And what is your answer, how could you have done that without fearing that you would be picked up?

MR MTHEMBU: At that time, whether we were going to be caught or not did not matter. After we had decided that we were going some place, we would go. If the police discovered us, that would be their duty to do so.

MR BERGER: Isn't it rather, Mr Mthembu, that you knew in advance that you were not going to be arrested by the police or the army or Iscor, you knew in advance that you had safe passage to Boipatong?

MR MTHEMBU: I had no knowledge of that, sir.

MR BERGER: You know the little bridge that one crosses to enter Boipatong in Umzumvubu Street, do you know that little bridge?

MR MTHEMBU: Yes, I know it.

MR BERGER: Did you cross it?

MR MTHEMBU: Yes.

MR BERGER: Do you know, if you're looking at Boipatong standing on that little bridge, one has to go, you have to go another 900 metres south, and then a further 900 metres west, I beg your pardon, east, to get to Lekwa Street, in other words it's almost two kilometres from that footbridge to get to Lekwa Street to enter into the township. What I'm putting to you is that to get people at the footbridge entering into Umzumvubu, to get people at Lekwa Street entering into the township, to get people right up at the top near Slovo Park into the township, and to co-ordinate all of that so that the attack starts at the same time, you need planning and you need vehicles, that's what I'm putting to you?

MR MTHEMBU: Mr Berger, I do not understand your question clearly. What I think has happened is this, people have told you about this and you don't know about it yourself.

CHAIRPERSON: Well in short what is being put to you is that to get to the point of the attack, you had, two things had to have occurred: one, there had to be prior planning; and secondly, you had to be transported to that point. Is that in a sense what you... (intervention).

MR BERGER: Yes.

MR MTHEMBU: I think Mr Berger doesn't understand when I say that I, as a person who was there, did not use any transport to get there.

MR BERGER: What I'm putting to you is that transport was used to carry some of the attackers... (intervention).

CHAIRPERSON: Mr Berger, do you think we can take it further than this, because he is clearly saying he didn't use the transport.

MR BERGER: Chairperson, he might not have used the transport, but he would have seen the transport. The point that I'm making is that for this attack to have occurred... (intervention).

CHAIRPERSON: We understand the question. Did you see anyone being transported by motor vehicle from the hostel to Boipatong?

MR MTHEMBU: Sir, I did not see anybody being transported to Boipatong.

MR BERGER: At page 82 of the heads of argument, it was submitted by your lawyers on your behalf that there were army vehicles at the robot at the crossing of Frikkie Meyer Boulevard and Nobel Boulevard, that's the northern entrance to Boipatong. It is then submitted on your behalf that if any, and the word "enige" is underlined, if any of the attackers had made use of that road, that tarred road, to go in the direction of Kwamadala, then they must have been seen at least by members of the army. It's your evidence that when you were going back to Kwamadala, you were seen by the army and the police, and none of them attempted to stop you, is that correct?

MR MTHEMBU: We saw police and army vehicles, but they did not stop us. We were using that small bridge you have been referring to and they were at the robots near the garage.

CHAIRPERSON: Did you see them on your way to Boipatong or was that on your way from Boipatong?

MR MTHEMBU: On the way back from Boipatong.

MR BERGER: Let me also tell you that there was evidence at the criminal trial that people had gathered in the veld behind the hostel and that that grass had been pushed flat. Do you know anything about that?

MR MTHEMBU: What was discussed in the trial and what we are talking about now are two very different things. The lawyers who represented us may not be here and I don't know if you expect me to go summon them and explain what they were saying.

CHAIRPERSON: Mr Mthembu, you said that you were, as I recall, in Boipatong for approximately, what did you say, 30 minutes to an hour?

MR MTHEMBU: Yes.

CHAIRPERSON: And that on your way back, it was there, well probably, when you were in Boipatong and on your way back it was only then that you saw the police, the Casspirs I think you said, here near the robots?

MR MTHEMBU: Yes, that is correct.

CHAIRPERSON: Yes, and does that include the army as well? Was it the army and the police, or just uniformed officers, it could have been the army or the... (intervention).

MR MTHEMBU: It was police vehicles, I may not know what uniform they had on.

CHAIRPERSON: Could it be possible that the army, the police that you saw there, were already there when you went into Boipatong?

MR MTHEMBU: I will not explain whether they were there or not, because maybe I would have seen them if they were there, I would not know whether they were there or not, I cannot make a fair comment on that.

CHAIRPERSON: But when you went to Boipatong, there were no police in the vicinity where you later saw them?

MR MTHEMBU: No, sir, there were not.

CHAIRPERSON: You only saw them at that spot on your way back?

MR MTHEMBU: Yes, on our return.

MR LAX: Mr Mthembu, did you use the small bridge twice, on the way in and on the way out?

MR MTHEMBU: We used it twice, on our way there and on our return from Boipatong.

MR LAX: You saw them from the bridge on your way out you said?

MR MTHEMBU: Yes sir.

MR LAX: You probably weren't looking for them on your way in, because you would have been going in the other direction? I'm just trying to understand.

MR MTHEMBU: As I've explained earlier, it is possible that they may have been there when we went into Boipatong, or they may not have been there, but I did not see them, because I was concentrating on where we were going.

MR LAX: That's what I was trying to understand, is why it was likely you might not have seen them, you were looking in a different direction?

MR MTHEMBU: Yes, it is possible.

MR LAX: Thanks.

MR BERGER: On the Sunday, well before I get to the Sunday, for the 30 minutes to an hour that you were in Boipatong, I take it there was a lot of screaming, shouting, sounds of gunfire, going on?

MR MTHEMBU: Yes.

MR BERGER: And all you did for 30 minutes to an hour was, you stabbed one person and you hit one person with a knopkierie?

MR MTHEMBU: That is correct.

MR BERGER: On the Sunday, I beg your pardon, on the Friday, the 19th of June 1992, there was another meeting at the hostel, which was addressed by Mr Themba Khosa, am I right?

MR MTHEMBU: Yes, that is correct.

MR BERGER: Was Mr Humphrey Ndlovu also present at that meeting?

MR MTHEMBU: I do not remember.

MR BERGER: Who else was present with Mr Themba Khosa at that meeting?

MR MTHEMBU: I don't remember, sir, because Themba Khosa used to come to Kwamadala either with Mr Humphrey Ndlovu or just by himself.

MR BERGER: On that day he came with a senior police officer?

MR MTHEMBU: Yes sir, because the police had already surrounded Kwamadala, there were police officers near the main gate.

MR BERGER: Was there an attorney with Mr Themba Khosa, a woman, a white woman?

MR MTHEMBU: I don't remember.

MR BERGER: At that meeting, Mr Khosa addressed all the residents of Kwamadala and told them to burn all the stolen property, is that correct?

MR MTHEMBU: That is correct.

MR BERGER: You remember this meeting, but you don't remember the meeting less than a week before, in fact five days before, where Mr Themba Khosa said if people come to attack you, then you must kill them?

MR MTHEMBU: I think I answered that question, sir.

MR BERGER: Mr Khosa said you must burn the stolen property because it could be evidence to the police if the people of Boipatong come and show them?

MR MTHEMBU: I'm listening, sir.

MR BERGER: Is that correct?

MR MTHEMBU: Yes.

MR BERGER: Is it also correct that Mr Themba Khosa said that we must hide all those weapons and spears, together with the clothes which had blood on them, in order to stop the police from gathering their evidence?

MR MTHEMBU: Sir, I agree with you.

MR BERGER: And then Mr Khosa told you to co-operate with the police.

MR MTHEMBU: Yes sir.

MR BERGER: And by that he meant tell the police lies?

MS PRETORIUS: Mr Chairperson, I do not think that this applicant can tell the Committee what Mr Themba Khosa meant by those words. He can tell the Committee what he understood by them, but I can't see that he can tell the Committee what Mr Themba Khosa meant.

MR BERGER: I'll ask it that way then. When Mr Themba Khosa said you must co-operate with the police after you've destroyed all the evidence, you understood Mr Khosa to mean that you must tell the police lies?

MR MTHEMBU: Mr Berger, with reference to what you're saying, I think that when Mr Khosa said what he said at the meeting, he did not direct us as to what we should do step by step, he did not direct us as to what we should do first or do second and then do whatever last. The police were there, they surrounded the area, we could not go out to the shops to buy food, how could we then let police in, into Kwamadala Hostel? Themba Khosa told us that we should remain calm and co-operate with the police and listen to what they had to say and let them search if they wanted to search the place.

MR BERGER: But he also told you to hide all the weapons and spears from the police?

MR MTHEMBU: I don't know how you want me to put this.

MR BERGER: Did Mr Themba Khosa tell you to hide all the spears and the weapons from the police?

MR MTHEMBU: He did tell us to do that.

MR BERGER: He also told you to hide the clothes with blood so that the police could not gather evidence?

MR MTHEMBU: I don't know what you want me to say, sir.

MR BERGER: Just confirm that please.

MR MTHEMBU: I had already told you, sir.

MR BERGER: How did Mr Themba Khosa know that all of this stuff had come from Boipatong?

MR MTHEMBU: I think you are asking the wrong person, sir.

MR BERGER: Was it discussed at that meeting on the Friday that "we were responsible for the attack on Boipatong, we have stolen, we have killed", was Mr Themba Khosa advised of it at that meeting?

MR MTHEMBU: I did not hear about that at the meeting.

MR BERGER: Then, is it correct that all the property that was stolen from Boipatong, as well as the bloody clothes, were burnt to ashes in the hostel, is that correct?

MR MTHEMBU: Yes.

MR BERGER: And this was done while the police were outside?

MR MTHEMBU: Yes, there were police outside the main gate.

MR BERGER: Was this also done on the Friday, the very day of the meeting?

MR MTHEMBU: I don't know, I don't remember what day it was.

MR BERGER: Well, Mr Khosa gives an instruction on the Friday, the hostel was searched by the police shortly after that, is it correct that between the giving of the order and the search of the hostel, that all the stolen goods, as well as the bloodied clothes, were burnt?

MR MTHEMBU: Mr Berger, I think that on a Thursday after the attack on Boipatong, police arrived in large numbers, they searched the place and confiscated even traditional weapons for testing, ballistic tests, to see if they were not connected to the attack in Boipatong. What I am trying to explain is that the police would come to the hostel even before Themba Khosa arrived there.

MR BERGER: Were the TV sets and stoves also burnt in this fire, to ashes?

MR MTHEMBU: Those were the things that were being burnt in that fire.

MR BERGER: And the weapons that were confiscated by the police were all thrown into one pile and taken away, am I right?

MR MTHEMBU: The police confiscated weapons that they found inside the hostel and they said they are taking these for ballistic testing.

MR BERGER: Who was Mr Themba Khosa to give an order that the stolen property and the bloodied clothes be burnt, how come he had the authority to give such an order?

MR MTHEMBU: He is also a member of the IFP, and he is an elder, so people should listen to him when he speaks.

MR BERGER: Is that when he gave that order, it was an order from the leader of the Youth Brigade in the province, and that's why it was carried out?

MR MTHEMBU: That is also possible.

MR BERGER: And you knew that at the time, correct?

MR MTHEMBU: I did not know it.

MR BERGER: Mr Mthembu, it's not a requirement for amnesty, but you were led on this right at the beginning of your evidence, you said, well through your counsel you said that you were sorry. Now, at page 41, paragraph 15, you say:-

"To conclude my statement, I would like to say to the community of Boipatong and to the residents who lost their loved ones, I am very sorry and I am asking them to forgive me because today I am behind bars and I realise what a dreadful thing we did that night."

Are you sorry because you are behind bars, Mr Mthembu?

MR MTHEMBU: Sir, I explained this earlier on, that I am sorry, not just because I am behind bars, but even if I was free, had I had such an opportunity I would have come before this Committee and said the same thing.

MR BERGER: Why did it take you so long to say that you were sorry?

MR MTHEMBU: As a convicted person, I cannot just go to the TRC or Mr Tutu, Bishop Tutu, and say that I am seeking amnesty for the people that I killed. I have to follow certain procedures, like acquiring legal representation and so forth, to be able to apply for amnesty.

MR BERGER: You see, Mr Mthembu, I want to put it to you that the only reason you are sorry is because you've been convicted, isn't that right?

MR MTHEMBU: No, it is not the truth. Why are my co-accused who are not in prison also here?

MR BERGER: All of your co-accused who were convicted are the ones applying for amnesty. Those who were not convicted, or who were never caught, are not saying that they're sorry, they haven't come forward, and isn't that where you would be... (intervention).

MR BRINK: Sorry, Mr Chairman, again to interrupt, is this getting us anywhere, because we know that remorse is not a requirement in terms of the Act, so it doesn't really take it further, with respect.

CHAIRPERSON: Perhaps Mr Berger can tell us why it is relevant?

MR BERGER: Chairperson, I'm asking these questions because my clients have asked me to ask these questions, and if I... (intervention).

CHAIRPERSON: But is it relevant?

MR BERGER: I prefaced it by saying that it's not a requirement, but if I can then, on a point of relevance, say, Mr Mthembu, if you are truly sorry for what you've done, would you be prepared to sit down with your co-accused and compile a list of the names and present whereabouts, if known, or if the names only, then that will also do, of the 300 people who participated in the attack on Boipatong?

MR MTHEMBU: I don't know how to respond to that, sir, because we do not see each other often, I am in one place, they are at another.

MR BERGER: I'm inviting you, during the lunch breaks, and on your own and then to come together to compile a list of all the people, the 300 and more people who were involved in that attack on Boipatong, and the reason I'm inviting you to do this is because I've been instructed to tell you, on behalf of the victims, that they will not begin to consider forgiving you until you tell the whole truth, and the whole truth includes the names of all the people involved in the attack.

MR MTHEMBU: I understand that you are inviting me, but what I and my co-accused think may be different, and we are not in one area, we do not see each other often, even during the lunch breaks we must do other things, like eating.

MR BERGER: During the lunch breaks, and this has been my last comment to you, Mr Mthembu, during the lunch breaks, you and your co-applicants can get together, if you are truly sorry, and put together a list of all of the people who were involved. After all, it's a requirement for amnesty that you do so.

MR MTHEMBU: I understand what you're saying. In other words, you are telling me that I and my co-accused are not here to seek forgiveness, you only realise that we are here to seek forgiveness only when you invite us to do what you have suggested. Is that what you are trying to tell me, Mr Berger?

MR BERGER: What I am trying to tell you, Mr Mthembu, is that you have not told the truth about what happened on that night.

MR MTHEMBU: If that is the case, Mr Berger, you are saying this, I hear it from you, you must have knowledge about this.

CHAIRPERSON: Mr Mthembu, listen carefully to the question. What Mr Berger is saying to you is that you've not been telling the truth to this Committee. What do you say to that?

MR MTHEMBU: Sir, as I am here, I am here to tell the truth.

MR BERGER: Chairperson, I see that I have overrun my mandate by eight minutes. I have no further questions.

CHAIRPERSON: Thank you, Mr Berger.

NO FURTHER QUESTIONS BY MR BERGER

MR BERGER: Chairperson, can I also place on record that, because Miss Cambanis does not have a microphone, she says that she has no questions at this stage.

CHAIRPERSON: That is not a problem, you can swop seats, you can go back to where she's sitting and then she can come forward. Very well, yes Miss Cambanis?

MS CAMBANIS: Thank you, Chairperson, I confirm that I have no questions at this stage for this applicant. Thank you.

CHAIRPERSON: Well, could you, what is the stage you're talking about, madam?

MS CAMBANIS: Sir, I didn't, I didn't ...(intervention).

CHAIRPERSON: Well the witness is here, so what we're saying, if you have a question, you've got to put them now.

MS CAMBANIS: Chairperson, I do not have questions, thank you.

CHAIRPERSON: Okay, excepting of course that you're putting a rider that if there is anything which arises from what the Committee might have to put to him?

MS CAMBANIS: That is correct.

CHAIRPERSON: Is that the qualification?

MS CAMBANIS: That is the qualification, and if the need arises for recall during adjournments obviously. Thank you.

NO QUESTIONS BY MS CAMBANIS

CHAIRPERSON: Mr Malindi, do you have any questions?

MR MALINDI: Mr Chairperson, I have about three questions.

CHAIRPERSON: Yes. Go ahead.

CROSS-EXAMINATION BY MR MALINDI: Mr Mthembu, when you look at page 3 of the bundle, under paragraph 11, you give the names of Mr Thebi Mkhize and Mr Quanqua as the people who gave you instructions to conduct this attack. What authority did Mr Mkhize and Mr Quanqua have to give these instructions?

MR MTHEMBU: As I explained earlier on, sir, that Damara was a person residing at Kwamadala, whom we respected and listened to, and furthermore our people had been killed in the township, I think that is why they proposed this attack.

MR MALINDI: So the reason you obeyed his orders is that he is a person that you respected and not that he was authorised maybe by a certain organisation to give those instructions?

MR MTHEMBU: As an IFP member, that is the reason why I listened to him.

MR MALINDI: Could you please look at page 13 of that bundle under paragraph 18. The first sentence reads as follows:-

"The attack on the 17th of June 1992 in Boipatong was not approved by the IFP leadership."

Do you confirm that statement?

MR MTHEMBU: Yes sir.

MR MALINDI: Could you please look at page 20 of the bundle, under paragraph 20.3, the question is:-

"Give particulars of the issues discussed during this meeting."

And you will see at paragraph 19 that this question is in reference to a meeting held a week prior to the attack, and on page 31, your answer under paragraph 20.3 is as follows:-

"The issues discussed at this meeting was that everybody was tired of what was being done by the Comrades to our people, that is they were necklacing our people and burning our people to ashes, that is the reason why they decided to attack the residents of Boipatong."

This meeting, is it the same meeting that Themba Khosa and Dlamini was sent by a minister from Ulundi were present?

MR MTHEMBU: I don't remember, sir.

MR MALINDI: Could you please look at page 29 of that bundle, at paragraph 17.1. You mention Mr Vanana Zulu and Mr Mkhize as the people who made a decision to attack the community of the Vaal, that is Boipatong.

MR MTHEMBU: Yes.

MR MALINDI: Mr Zulu, one of the people who gave you instructions, as you say under paragraph 11 of your amnesty application, are you including him as a third person, or not? If you look at page 3 of that bundle, paragraph 11 of the amnesty application, you mention Mr Mkhize and Mr Quanqua as giving instructions, my question is, in view of what is on paragraph 17.1 on page 29, are you adding Mr Vanana Zulu as the third person who gave you instructions?

MS PRETORIUS: Mr Chairman, I just have one problem with Mr Malindi, my learned colleague here, is he asking the questions on behalf of the same victims, or is he asking the questions on behalf of different victims, because if it's the same victims, it's my contention that the applicant cannot be cross-questioned by two people regarding the same victims. If it's different victims, I have no problem.

CHAIRPERSON: Well I assume that Mr Malindi is representing different victims, whose names would be handed up in due course. Is that the position, Mr Malindi?

MR MALINDI: It is indeed so, Mr Chairperson.

MS PRETORIUS: Thank you, Mr Chairperson.

MR MALINDI: Mr Mthembu, is Mr Zulu the third person who gave you instructions or not?

MR MTHEMBU: Yes sir, that is correct.

MR MALINDI: Was Mr Zulu present at the meeting of the 17th of June 1992?

MR MTHEMBU: I do not remember that very well, sir.

MR MALINDI: Please look at page 8 of the bundle, paragraph 8... (intervention).

MR BRINK: Which paragraph are you saying?

MR MALINDI: I think I'm wrong about the paragraph, Mr Chairperson may I just try to locate it quickly?

MR BRINK: Thanks, no, because page 8 doesn't have a paragraph 8 on it.

MR MALINDI: Yes, it doesn't, yes. Excuse me.

MR BRINK: Paragraph 8 is on page 6.

MR MALINDI: Page 10, Mr Chairperson, paragraph 16. You will see at paragraph 14 that you are talking about the meeting of the 17th of June 1992, and then at paragraph 16, the second line, you say:-

"Vanana Zulu was not present."

So he could not have been at the meeting of the 17th and given you instructions, isn't it so?

MR BRINK: Be given what instructions?

MR MALINDI: That they should attack Boipatong.

CHAIRPERSON: I think in putting the question to the witness, please bear in mind that this issue was canvassed earlier on, and then in paragraph 17 there's reference to the one that you've just put to the witness, and that is 17.1, where he says:-

"To the best of my knowledge Mr Vanana Zulu and Mkhize made the decision to attack the Vaal community."

MR MALINDI: Okay.

CHAIRPERSON: And then later on, at paragraph 17.3, then he talks about Mr Mkhize agreeing with Mr Quanqua to attack the residents of Boipatong. Continue.

MR MALINDI: As the Chairperson pleases. What is your recollection, was Mr Zulu present at that meeting of the 17th of June, or not?

MR MTHEMBU: I think it is as written that Mr Zulu was not there at that meeting, he was not at the meeting.

MR MALINDI: What is written at paragraph 16 on page 10, that he was not at the meeting?

MR MTHEMBU: Sir, I think you are like Mr Berger, I responded to this question when Mr Berger asked it and I've already said that he was not there, he had gone home.

MR MALINDI: And members of the Committee will stop me, seeing that they have not stopped me yet, do you confirm that what stands on paragraph 16 on page 10 is correct or not?

CHAIRPERSON: He's just confirmed that that is correct, he was not, you're saying he was not at the meeting, Mr Mthembu?

MR MTHEMBU: I have explained, sir, that Mr Zulu was not present. I don't know how many times he wants me to repeat this.

MR MALINDI: Now can you tell the Committee, where did Mr Vanana Zulu and Mr Mkhize make their decision that the Vaal community should be attacked?

MR MTHEMBU: I would not know where they discussed this.

MR MALINDI: Last question now, Mr Mthembu, on page 13, paragraph 18, the last sentence you say:-

"Vanana Zulu knew about it, but he went to his family",

and I will take this to mean he knew about the attack on Boipatong. How did he come to know about it?

MR MTHEMBU: I meant he knew about the attacks we suffered at the hands of the community of Boipatong.

MR MALINDI: No, Mr Mthembu, if you look at the first line on paragraph 18, the reference is to the attack on Boipatong and you say Vanana Zulu knew about it. How did he come to know about it?

CHAIRPERSON: Mr Malindi, could this last sentence not be referring to the second sentence?

MR MALINDI: Chairperson, I submit that in the context of this paragraph, it refers to the attack on Boipatong and that all residents of Boipatong... (intervention).

CHAIRPERSON: But does it lend itself to that construction only?

MR MALINDI: It may be ambiguous, it may be - Chairperson, my learned leader refers me to the question which Mr Mthembu was referring to, which is on page 20.

CHAIRPERSON: But this sentence, because it seems to me it may well be capable of being, you know, of meaning that he may have known about the meeting or he may have known that the residents of Kwamadala Hostel were afraid of Quanqua and that they were forced to attend the meeting and that's why he went home.

MR MALINDI: No, it is capable of, it's quite capable of being a reference to that first sentence or the second sentence.

CHAIRPERSON: Yes.

MR MALINDI: Thank you, Chairperson, no further questions.

NO FURTHER QUESTIONS BY MR MALINDI

MR STRYDOM: I have no questions, thank you.

NO QUESTIONS BY MR STRYDOM

CHAIRPERSON: Re-examination, Advocate Pretorius?

MS PRETORIUS: Mr Chairperson, I just think my learned friend, Mr Da Silva may have questions.

CHAIRPERSON: Oh, I beg your pardon.

MS PRETORIUS: I'm sorry.

CHAIRPERSON: I beg your pardon. They are, unless one looks at them, one might not notice that they are present.

MR DA SILVA: Mr Chairperson, I don't know when the Committee intends rising, I... (intervention).

CHAIRPERSON: Once you've finished your questions and the others have had the opportunity to re-examine.

MR DA SILVA: As it pleases the Committee.

CHAIRPERSON: For the record, would you state your name and who you appear for?

MR DA SILVA: My full names are C A da Silva, I have been briefed by the attorney Armien Kluth on behalf of the South African National Defence Force.

CHAIRPERSON: Yes. Yes, Mr Da Silva.

MR DA SILVA: As the Chairperson pleases.

CROSS-EXAMINATION BY MR DA SILVA: Mr Mthembu, you gave an explanation about how the attack took place on the 17th of June 1992. I understand from your evidence that at a stage you moved away from Kwamadala Hostel and you crossed underneath a bridge, that is your evidence, is that not so?

MR MTHEMBU: Yes sir.

MR DA SILVA: Was there a specific reason for crossing underneath this bridge?

MR MTHEMBU: There is no other roads to the township that doesn't require us to cross underneath the bridge.

MR DA SILVA: Was the reason to cross underneath the bridge not so that you would not be detected, this group would not be detected by other people?

MR MTHEMBU: I think, sir, you may not know the bridge we are talking about. There is a rail overhead the bridge, and then there is a road underneath the bridge.

MR DA SILVA: I understood your evidence to be that when the group moved away from Kwamadala Hostel towards Boipatong, that you saw no members of the police and no members of the Defence Force, is that correct?

MR MTHEMBU: That is correct.

MR DA SILVA: Now I also understood your evidence to be that while you were in Boipatong, you were there for approximately a half an hour to an hour, is that correct?

MR MTHEMBU: Yes sir.

MR DA SILVA: While you were in Boipatong, you saw no members of the police and of the South African Defence Force, is that correct?

MR MTHEMBU: Yes, that is correct.

MR DA SILVA: My information is that while, or after the attack, that there were numerous rocks and tree stumps in the streets, is that your recollection of that evening?

MR MTHEMBU: Yes sir.

MR DA SILVA: Your statements also - or your affidavits state in two places that the police were precluded from entering Boipatong because they were barred by rocks. Do you agree with that?

MR MTHEMBU: Yes sir.

MR DA SILVA: Would you agree with me that to travel by vehicle that evening in Boipatong would have been very difficult, because of the tree stumps and because of the rocks in the roads?

MR MTHEMBU: Yes, I agree.

MR DA SILVA: I understood your evidence to be that the first time you saw some form of authority was when you were moving back to the hostel, is that correct?

MR MTHEMBU: Yes, that is correct.

MR DA SILVA: What did you see?

MR MTHEMBU: I saw police vehicles, Casspirs.

MR DA SILVA: Now, it's interesting that you say that you saw Casspirs. Did you see any other vehicles, apart from Casspirs?

MR MTHEMBU: The others called V12's.

MR DA SILVA: Could you repeat that, others?

CHAIRPERSON: (Indistinct) vehicles called V12, is it?

MR DA SILVA: Do you know if a V12 is a Nyala vehicle?

MR MTHEMBU: I do not know.

MR DA SILVA: Right. When you saw the policemen that you're referring to, how far away were you from them?

MR MTHEMBU: It was quite a distance away from us, from the garage where the police were parked and the bridge where we were.

MR DA SILVA: Can you estimate the distance at all?

MR MTHEMBU: From that bridge, it will be a distance maybe from the stage towards the end of the stage, of the hall.

MR DA SILVA: When you started being cross-examined, somebody asked you to estimate, Mr Berger asked you to estimate a distance and you gave the same estimation, that it was about 40 to 50 metres.

CHAIRPERSON: I think now he's referring outside of the hall. Is it from where you are seated... (intervention).

MR MTHEMBU: From the bridge, from... (intervention).

CHAIRPERSON: ...up to the doors right at the back?

MR MTHEMBU: Yes.

MR DA SILVA: Can you give an estimation more or less how far this distance is?

CHAIRPERSON: Well he says it's from where he is up to the doors at the end of the hall, (indistinct).

MR DA SILVA: That's about 50 metres, Mr Chairman, more or less.

CHAIRPERSON: Yes.

MR DA SILVA: How long did you observe these people?

MR MTHEMBU: We were walking past, I could see them as they were standing there having their Casspirs parked there, and I did not estimate how long it took for us to see them.

MR DA SILVA: Can you give me an estimation, Mr Mthembu, how long did you keep these people under observation, a couple of minutes or longer, or can't you say?

MR MTHEMBU: Would you please repeat your question, I don't understand what you're trying to say?

MR DA SILVA: You saw a group of vehicles which you've referred to as the police. I'd like you to give an estimation of how long you kept these people under observation. Are you able to do so?

MR MTHEMBU: I am not in a position to do that, because you are talking to me, I am the one who saw them, I was walking past, going back to my place, I therefore did not estimate what time it took for us to observe these people as we were walking past, we just walked past.

MR DA SILVA: That's exactly why I'm asking you the question, because I wasn't there, and you were there, that's why I'm asking you to tell the Committee how long you kept these people under observation?

CHAIRPERSON: He says he can't tell us, he's unable to tell us, he says.

MR DA SILVA: As the Chairman pleases. Can you describe what these people were wearing that you saw?

MR MTHEMBU: It was at night, sir, I was not in the position to see what they were wearing, what colours of clothes they were wearing, it was at night. I just saw cars as well.

MR DA SILVA: Look at the question that was put to you after your amnesty application was filed. Will you please turn to page 20, paragraph 27 please. Do you see the question? It says:-

"You mentioned that you saw a police armoured vehicle outside Boipatong on the eve of the attack. Is it possible that this vehicle you saw could have belonged to the SADF?"

In other words to the South African Defence Force. If you turn to page 33, you see the answer to paragraph 27:-

"On the night of the attack I saw a Casspir of the Stability Force Police, such as a V12. I am very sure it was a South African Police Casspir."

So in other words what you're saying is, the vehicle you saw belonged to the police and not to the Defence Force, do you agree with that?

MR MTHEMBU: I would not know, because you have just enumerated a number of things. You also indicated to what other names used for the V12, I just know that these vehicles were for the police and the other one for the army.

MR DA SILVA: Yes, yes, yes.

CHAIRPERSON: You see, your attention is being drawn to the question that was asked of you, and the answer that you gave to that question. The question was, is it possible that this vehicle that you saw there belonged to the South African Defence Force, that is the question that you were asked. Do you understand that?

MR MTHEMBU: Yes, I do understand.

CHAIRPERSON: And then your answer to that question was:-

"On the night of the attack, I saw a Casspir of the Stability Force Police, such as a V12. I am sure it was a South African Police Casspir."

MR MTHEMBU: Yes, I think so, sir.

CHAIRPERSON: You don't mention seeing, you don't say that that motor vehicle could have belonged to the South African Defence Force.

MR MTHEMBU: Yes.

MR DA SILVA: Mr Mthembu, you made several affidavits in your application for amnesty, and the first affidavit I understand deals with the incidents that took place at Sebokeng. Now if you look at your subsequent affidavits, look at the first one, it runs from pages 36 to 42... (intervention).

CHAIRPERSON: Mr Da Silva, let me ask you this, what is the South African Defence Force position, were they present or were they not present?

MR DA SILVA: The position is that they were present after the attack, not during or before the attack.

CHAIRPERSON: Put that to the witness and let's see how he responds to it. Perhaps we will deal with the extent to which your client is implicated much quicker.

MR DA SILVA: As it pleases you, Mr Chairman. My instructions are, Mr Mthembu, as contrary to what Mr Berger put to you, that the South African Defence Force did not provide 24 hours service at that stage, during June 1992. Do you have any comment in that regard?

MR MTHEMBU: There is nothing I can say, sir, because there was violence in the Vaal Triangle, we used to see police and army vehicles coming to the spa shop near Kwamadala Hostel, they would make a turn there.

MR DA SILVA: My instructions are further that immediately before the attack and during the attack, no members of the Defence Force were aware of this attack. You can't make any comment in that regard, can you?

MR MTHEMBU: I would not say anything about that.

MR DA SILVA: If you'll bear with me, Mr Chairman? I have no further questions, Mr Chairman.

CHAIRPERSON: Yes, thank you.

NO FURTHER QUESTIONS BY MR DA SILVA

RE-EXAMINATION BY MS PRETORIUS: Mr Mthembu, Prince Vanana Zulu was never an accused in the Boipatong trial, is that correct?

MR MTHEMBU: That's correct.

MS PRETORIUS: Mr Mthembu, that night of the attack, did you loot anything from Boipatong, did you take any TV's, blankets, two plate stoves or anything for yourself?

MR MTHEMBU: Yes, madam, yes there were such things, Advocate.

MS PRETORIUS: What did you take, Mr Mthembu?

MR MTHEMBU: There is nothing that I took personally, because I had what weapons I had with me and I didn't take things from Boipatong.

MS PRETORIUS: Oh, that's what I'm asking you. Can you tell the Committee, this little bridge you're talking of, is that a footbridge or is it a bridge over which cars can drive?

MR MTHEMBU: I don't know, we are talking about two bridges here.

MS PRETORIUS: Yes, but Mr Berger put it to you that if you stand on the little bridge, you can see 900, it's 900 metres, that little bridge that you can stand on and see Boipatong, is that a footbridge or is it a bridge for vehicles? I'm talking about the second bridge, not the bridge you came under from Kwamadala Hostel, the one that you said you had to cross to go to Boipatong and to get back from Boipatong.

MR MTHEMBU: This is a pedestrian bridge.

MS PRETORIUS: It's a pedestrian bridge?

MR MTHEMBU: Yes.

MS PRETORIUS: Mr Mthembu, you also testified that there was a certain Mbatha who was killed in Boipatong before the attack on Boipatong on the 17th of June, is that correct?

MR MTHEMBU: Yes, that is correct, I am sure about that, because I also have a witness here behind me, Mbatha died in his presence.

MS PRETORIUS: Can I refer you to, I have copies for all the members of the Committee, as well as the members, of the Sunday Star dated the 28th of June 1992. It was an article written by a Mr Riaan Malan, I believe, and it reads, on the inside look out, there is a paragraph, I can tell the Committee it's just above the last paragraph with the big T, the capital T, which says:-

"Asked why..."

and they refer you to a crippled youth leaning against a wall:-

"...in February he went to meet his mother in Boipatong and he wound up in Intensive Care with a bullet in the spine. A month earlier one Bongani Mbatha made the mistake of wearing an IFP T-shirt on an outing. He was stoned to death. In May a boy named Tapelo went shopping in downtown Vereeniging, presumed to be safe territory, he was abducted and burnt alive."

This Mbatha, is that the same Mbatha you told the Committee of?

MR MTHEMBU: Yes, that's the same person.

CHAIRPERSON: You've said that Mbatha was in the company of one of your co-applicants. Who is that co-applicant who was in the company of Mbatha when he was killed?

MR MTHEMBU: There is one Mbatha who is my co-accused in this case, and there's also another one who died at (Indistinct).

CHAIRPERSON: Do you know in whose company Mbatho was when he died?

MR MTHEMBU: He was with my co-accused, Khanyile, he's just right here behind me.

CHAIRPERSON: And the witness you are referring to, Khanyile, Vincent Khanyile?

MR MTHEMBU: Yes, that's correct, sir.

CHAIRPERSON: Advocate Pretorius, what number shall we give this... (intervention).

MS PRETORIUS: K, it's K, Mr Chairperson.

NEWSPAPER CUTTING HANDED IN AS EXHIBIT K

MS PRETORIUS: I have no further questions, thank you, Mr Chairperson.

NO FURTHER QUESTIONS BY MS PRETORIUS

CHAIRPERSON: You've made a number of, well you've made certain affidavits in this matter, I think they're in English.

MR MTHEMBU: That's correct, sir.

CHAIRPERSON: Did you make use of an interpreter?

MR MTHEMBU: No.

CHAIRPERSON: You were speaking in English to your legal advisers?

MR MTHEMBU: That's correct, sir.

CHAIRPERSON: In view of the lateness of the hour, the members of the Committee will put their questions to you tomorrow morning. We propose to commence tomorrow morning at nine o'clock. Do you have a problem with that, Mr Berger?

MR BERGER: No problem, Chairperson.

ALL PERSONS STATE THAT THEY HAVE NO PROBLEM WITH TIME

CHAIRPERSON: Yes, very well. Did you want to say anything, Mr Brink?

MR BERGER: No.

CHAIRPERSON: Okay. Very well, we'll adjourn until tomorrow morning at nine o'clock.

COMMITTEE ADJOURNS

14-07-1998: Day 6

ON RESUMPTION

CHAIRPERSON: Good morning, ladies and gentlemen.

Mr Mthembu, let me remind you that you are still under oath.

VICTOR MTHANDENI MTHEMBU: (s.u.o.)

CHAIRPERSON: What happens now is that the members of the Committee are going to put questions to you to clarify some of the aspects of your evidence. Do you understand that?

MR MTHEMBU: Yes I do understand.

CHAIRPERSON: I have warned you before, I'll do it again, if you do not understand the question, would you please indicate that you don't understand the question so that the question can be repeated to you or explained to you as the case may be. Do you understand that?

MR MTHEMBU: Yes I understand.

CHAIRPERSON: And because we are running out of time but not to suggest that because there is no time we have to hasten this, it will be helpful where the answer has to be a yes or no for you to say so as opposed to making a statement.

MR MTHEMBU: I understand.

CHAIRPERSON: Where necessary and if you feel that you want to make a statement, do so. Do you understand that?

MR MTHEMBU: Yes, I understand.

CHAIRPERSON: Mr Sibanyoni, do you have any questions to put to the witness.

MR SIBANYONI: Yes, thank you Mr Chairperson, I do have questions.

Mr Mthembu, this incident, the attack on Boipatong, I took it it's something which happened for the first time to you and then it's something which you'll not easily forget, it's a very significant event, am I correct?

MR MTHEMBU: Yes sir.

MR SIBANYONI: And as such I take it that it's easy to relate to us, to tell us even without looking at the documents just to tell us broadly what happened, am I correct?

MR MTHEMBU: Yes sir.

MR SIBANYONI: I just want you to clarify this. There were at some stage when Advocate Berger would ask you a fact and you say you don't have any knowledge of it or at a certain stage you'll say even that it didn't happen that way but thereafter Mr Berger will refer to your affidavit and pick up that fact. Now can you tell us why did that happen, that you will say something didn't happen but when you are confronted with your affidavit, you'll then consider that it did happen?

MR MTHEMBU: I can say it's been a long time since this thing happened, I therefore am not in the position to remember everything that happened.

MR SIBANYONI: Can you tell me whether there's any reason perhaps why most of the time when Mr Berger was asking questions you wouldn't respond, you would perhaps kick up an argument with him and not give him a question. Is that perhaps a reason for doing that and answering him?

MR MTHEMBU: I am not in a position to answer some of the things because it's been a long time now.

MR SIBANYONI: Is that the reason why you were not responding immediately to his questions?

MR MTHEMBU: That is correct, sir and also if he asks me the question, I should have to listen very carefully as to what answer he was looking for, I too had to take time to think.

MR SIBANYONI: I did ask you a question about possibility of fear, I want to repeat that question just to get clarity. When you tell your story before this Committee, it would appear that you go as far as what you personally did and as far what those two people, who are deceased, Mabode and Tjonjo did and only one of your co-applicants, Khanyile, but he said he is your friend, a close friend. That gives me the impression that you are afraid to talk about what other people did who are not close to you. What is your comment about that?

MR MTHEMBU: I am here sir, not afraid of anyone, I have come here wholeheartedly. I am therefore not afraid to say things. I cannot say things that they did or did not do, I'm not afraid of anyone.

MR SIBANYONI: You said you passed standard nine which is the first year in matric, am I correct?

MR MTHEMBU: Yes.

MR SIBANYONI: And then, may I just say to you it doesn't sound, auger very well when you kept on saying you are not educated, you didn't even know what position Themba Khosa had in the IFP - what is your response to that?

MR MTHEMBU: I was answering pertaining to how I view things, indicating that there is nowhere I can go with this level of education.

CHAIRPERSON: Did you pass standard nine or did you go as far as?

MR MTHEMBU: Yes, sir.

MR SIBANYONI: Concerning you licences to possess firearms, you said you only had two?

MR MTHEMBU: That's correct, sir, even now I have only two.

MR SIBANYONI: Although your identity document reflects three licences, you didn't have a third gun, I suppose, it was only a licence that was issued to you?

MR MTHEMBU: As I have explained earlier on that I was supposed to receive the first licence and it was cancelled, if you can get hold of my identity document it will clearly indicate that the first licence was cancelled because the numbers were not corresponding with the firearm.

MR SIBANYONI: The reason you said you didn't use your licensed firearm during the attack is it because you regarded the attack as something which perhaps was unlawful, perhaps you wouldn't use your licensed firearm as when you are protecting yourself or what was the reason?

MR MTHEMBU: These were legal firearms and I therefore could not use these firearms knowing fully well that they were not meant for political reasons or motives.

MR SIBANYONI: When those firearms licences were issued to you, you already had criminal record, I heard you talking about you had various criminal records even from long ago?

MR MTHEMBU: I would not know that sir as to whether I had criminal records or not.

MR SIBANYONI: When you were asked about the word hit squad you said it was a computer error, but as a person who passed standard nine definitely would know that for a computer to print a word, somebody had to feed that computer with the word. Did you at any stage when you were deposing to your affidavits, using the word hit squad because it appears more than once?

MR MTHEMBU: I explained that I did not write the affidavit myself.

MR SIBANYONI: You didn't write the affidavit?

MR MTHEMBU: No.

MR SIBANYONI: But you were deposing to the affidavit in English, in other words you were speaking English, nobody had to interpret what you were saying?

MR MTHEMBU: No, there were only two of us, myself and the lawyer.

MR SIBANYONI: Then you speaking English?

MR MTHEMBU: I think I was speaking English because he is white, because the legal representative is white.

MR SIBANYONI: Did you speak English or you think you spoke English? Okay, I'll leave that.

Mr Mthembu,you said people who were harassed, tortured at Boipatong were Zulus and IFP members, did I understand you correctly?

MR MTHEMBU: Yes sir, you understood me well.

MR SIBANYONI: Would you agree that people who were attacked, in other words victims, some of them were Zulus?

MR MTHEMBU: Would you please repeat, sir?

MR SIBANYONI: My question is, some of the people who were attacked, some of the victims who were attacked at Boipatong are Zulus?

MR MTHEMBU: I have no knowledge of that, sir.

MR SIBANYONI: My point is, do you concede that amongst the people who were attacked, some of them are not ANC and some of them are people who you saying were under attack by the ANC?

MR MTHEMBU: I am not a resident of Boipatong, what I can say is the people who were attacked were ANC people involved in politics.

MR SIBANYONI: From how long have you known this man from Msinga, the Msinga contingent, for how long have you been with them at the hostel?

MR MTHEMBU: When I arrived in 1990, they were already there, right up to 1992.

MR SIBANYONI: Three years you were with them?

MR MTHEMBU: That is correct, sir.

MR SIBANYONI: Are there any of them who have been attending this hearing perhaps?

MR MTHEMBU: I did not see them because it's been a long time since I was incarcerated.

MR SIBANYONI: In your affidavit you said during the meeting it was said this problem of your people being killed at Boipatong should be reported to Buthelezi. Was it in fact reported?

MR MTHEMBU: Yes, sir.

MR SIBANYONI: I suppose that an event like this one which happened on the 17th June 1992, to attack is like starting a war and as such it has to be with the approval or the blessing of some people higher in the IFP structures. What is your comment about that?

MR MTHEMBU: There is nothing I can say about that.

MR SIBANYONI: Is it perhaps because of fear that you can't say anything about that?

MR MTHEMBU: No, I am not afraid, I just have no comment.

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

CHAIRPERSON: I think the point has been made here is that if the attack on Boipatong was at the instance of IFP members who were being attacked by the Boipatong residents who were perceived to be ANC, the decision to attack in all probability would have come from the top structures of the IFP. No one is suggesting that you knew that but we're putting it at no higher than just a probability, do you understand what I'm saying?

MR MTHEMBU: Yes I do understand that.

CHAIRPERSON: Would it be fair then to make that assumption?

MR MTHEMBU: As far as I'm concerned, I don't think that's the right way to go.

CHAIRPERSON: Yes, Advocate Sigodi?

ADV. SIGODI: Mr Mthembu, I just want to clarify one aspect here. I just want to get a picture of what was happening at Kwamadala Hostel. Roughly how many people were staying in Kwamadala Hostel?

MR MTHEMBU: There may have been people in excess of 1000, above.

ADV. SIGODI: And did those include women as well?

MR MTHEMBU: Yes, that is correct, madam.

ADV. SIGODI: And were they all IFP members?

MR MTHEMBU: That is correct.

ADV. SIGODI: What concerns me is the motive for the attack on the Boipatong residents. For me it could be one of two things. It could either have been an IFP order or instruction to go and attack ANC people in Boipatong or it could have been the hostel dwellers for their own reasons, one of the reasons being that they were prevented from buying at the shops, attacking the Boipatong residents who happened to be in the predominantly ANC area. So what I want to find out from you, was this an IFP attack on ANC or was it just hostel dwellers attacking Boipatong residents irrespective of whether the Boipatong residents had IFP members or not. Do you understand what I'm trying to ask you?

MR MTHEMBU: Yes, I understand.

ADV. SIGODI: So which one was it, was it IFP versus ANC or was the hostel dwellers versus the Boipatong residents?

MR MTHEMBU: As far as I see it there were IFP members residing at the Kwamadala Hostel and there was also this ANC organisation who barred people from the hostel to buy at the shops - they were killed and necklaced.

ADV. SIGODI: Now what worries me is the fact that when the IFP people of the Kwamadala Hostel went to attack the Boipatong residents, if they wanted to attack the ANC people as you said and like you said that the people that you were targeting were the self defence unit people specifically and you went into the houses because the STU's ran away when they saw you and they went into the houses and that's when you started attacking people inside the houses. What I want to find out, if you want to attack the ANC, what measure did you take to protect the people who were IFP in Boipatong?

MR MTHEMBU: I would not explain about IFP members residing in Boipatong, that was not to my knowledge.

ADV. SIGODI: Because you testified that you had to wear a red band as the hostel dwellers in order to prevent you attacking each other but you did not make any provision for people who could possibly be IFP who were staying in the townships in Boipatong?

MR MTHEMBU: Yes that is correct.

ADV. SIGODI: Because it was concerns me is what political objective did you intend to achieve if you went and killed some IFP people because it was put to you that some of the victims were IFP supporters?

MR MTHEMBU: I can explain here that I had no knowledge that there were IFP members residing at Boipatong, especially because we are the ones who were being killed at Boipatong. How could we be killed by people who were members of the IFP?

ADV. SIGODI: But it's a known fact that Boipatong was predominantly ANC, or you perceived it to be as such, but what concerns me is the indiscriminate killing in so far as the political objectives that you may have sought to achieve?

MR MTHEMBU: I am not in a position to comment about that.

CHAIRPERSON: Mr Lax?

MR LAX: Thank you, Chairperson, if I could just pull this across here so that we don't have any problems with the sound system.

Mr Mthembu, I just want to follow up on this issue of IFP members in Boipatong that my colleague has raised with you. You say you didn't know there were IFP members in Boipatong, is that right?

MR MTHEMBU: That is correct, sir.

MR LAX: Well, can I refer you to paragraph 532 of your affidavit at page 24. You'll see from that paragraph that the Youth Brigade went into Boipatong to discuss with youth associations and young people how to become members of the IFP. In other words, to recruit members in that area?

MR MTHEMBU: That is correct, sir.

MR LAX: And you were Vice-Chairperson of the Youth Brigade?

MR MTHEMBU: That is correct. On that day I was also present when they went to Boipatong.

MR LAX: This paragraph doesn't just say you went there once, it implies that you went there on a regular basis to meet with people, to persuade them to become IFP members, correct?

MR MTHEMBU: Yes that is correct but we had a problem. On that day the police chased us out of the township, they did not want to see us there and we therefore was no longer able to continue with our mission.

MR LAX: But the fact of the matter is that there probably sufficient people in Boipatong sympathetic to the IFP to make it worth your while to go there to try and recruit people?

MR MTHEMBU: I would not know sir, because on that very same day before we were chased away by the police we did not find any recruits because these people had already indicated through their actions that they were not co-operating.

MR LAX: Well then why did you sign this section of this affidavit which is worded in terms that imply that you went there on many occasions and that you spoke to people and that you tried to encourage them to join the IFP? Why didn't you correct that and point out to lawyer that this a mistake, you only went there once?

MR MTHEMBU: I did not see it as a mistake because it is something that I was talking about as something that happened.

MR LAX: Well you see, you say you never spoke to anybody that day because you were chased away before you could get there? Just answer the first part, is that correct?

CHAIRPERSON: What is your answer to that?

MR MTHEMBU: I am saying we did not talk to the people, we were chased away by the police at Boipatong.

MR LAX: Well it's written here "The Youth Brigade was encouraging other youths to join the IFP. They would enter Boipatong to discuss with youth associations and young people how to become members of the IFP. If you were chased away, how could you discuss with anybody?

MR MTHEMBU: This is something that explains what our mission was, what we went there to do.

MR LAX: The way this is worded says that you went there and you did it, not that you were prevented from doing it, so my problem is that as Vice-Chairperson of that Youth Brigade, you held planning meetings, you say that in your evidence and in your affidavits, correct?

MR MTHEMBU: That is correct.

MR LAX: And in order to plan to do something you must know there's the potential to be successful, correct?

MR MTHEMBU: Yes it is possible to succeed and it is also possible not to succeed.

MR LAX: Now I want to turn to another issue. The affidavit that is contained in these papers that ends at page 42 and starts at page 36, you signed that on the 3rd June 1998, is that correct?

MR MTHEMBU: Yes that is correct.

MR LAX: So that at the time you signed that affidavit you remembered all the things that are contained in that affidavit, is that right?

MR MTHEMBU: I do not understand the question.

MR LAX: Well, when you sign an affidavit, you are asked whether you know and understand it's contents, correct?

MR MTHEMBU: That is correct.

MR LAX: So you knew the contents of that affidavit when you signed it on the 3rd June 1998?

MR MTHEMBU: Yes, sir.

MR LAX: Therefore you remembered the contents at that stage, is that right?

MR MTHEMBU: That is correct, sir.

MR LAX: What I want to know is, what has happened in the last month that's made you forget a number of the issues that appear in this affidavit? How come you've suddenly forgotten quite a number of the issues that appear in this affidavit?

MR MTHEMBU: What is written in here, sir, are issues that pertain to things that happened some years ago. Just because the date reflected is recent does not mean that this happened only recently, it happened over six years ago.

MR LAX: You see my point, Mr Mthembu, is this - when you signed this affidavit you remembered all the things you mentioned in this affidavit and you swore on oath that you did actually know them, are you with me?

MR MTHEMBU: Yes I understand.

MR LAX: Now in the interleading months you signed that between the time you signed it and the time you came before us, you've suddenly forgotten some of the facts referred to in this affidavit and I'm trying to understand why, what has happened, what has made you to forget things that you swore you knew?

MR MTHEMBU: With regards to that sir, I would not have any other explanation to offer except for what I've just explained.

MR LAX: Now, I want to just turn to another issue and that is according to your evidence you were in Boipatong for between half an hour and an hour?

MR MTHEMBU: That is correct, sir.

MR LAX: Does that time period include the time it took for you to leave the hostel, go to Boipatong, be there and then return back to the hostel?

MR MTHEMBU: I was explaining the time from which we entered Boipatong.

MR LAX: Yes, so that's only from the time you entered?

MR MTHEMBU: Yes that is correct.

MR LAX: And in that time you were there you can only remember three or four things that you did?

MR MTHEMBU: Yes, sir.

MR LAX: Well please explain this to me because I find this very difficult to believe. I find it difficult that somebody could be in a place for over half and hour, to be involved in some events that you remember very clearly down to the minutest detail, like helping the children, thinking about whether to put them in a wardrobe, changing your mind, realising that that's not a good idea, then putting them under the bed, remembering that you even made sure that you left after colleagues so that no harm would come to them - that sort of detail you remember, the rest is just blank, there just seems to me no explanation for this. What I'm saying is, not that I don't believe you, I find it hard to understand how you can remember some things in such immense detail and the rest is just blank, so I want you to try and help me understand how this is possible. Are you with me?

MR MTHEMBU: Yes, I understand. With regards to that I can explain that when I was there I may not be able to recollect some of the things that happened or some of the things that were done by my colleagues which I did not witness. There are things that I remember, those that I have explained before the Committee.

MR LAX: What I'd like you to try and do now is, just say you come over the foot bridge, you remember that, crossing the foot bridge?

MR MTHEMBU: Yes I remember.

MR LAX: Do you still have that map in front of you, can you show me where the foot bridge is on that map, if it is on that map?

MR MTHEMBU: I cannot see it from the map.

MR LAX: Is the foot bridge on the east of Boipatong?

MR MTHEMBU: It is on the west towards Kwamadala Hostel.

MR LAX: So it's - I can't actually see the street that forms the - on my copy it's not very clear. There's a street that runs along the entire western side of Boipatong.

MR MTHEMBU: Yes.

MR LAX: Thank you - it's looks like Tambo Street but you can see it on the map, it tends to run right from the top corner where the words Kwamadala with an arrow are written, all the way down to the bottom, can you see that?

MR MTHEMBU: Yes, sir, I see it.

MR LAX: Now at what point at that street did you enter Boipatong, can you remember?

MR MTHEMBU: I think we entered through that direction, I think the bridge should be on this side.

MR LAX: You're sort of pointing into a line with Umsimvuvu Street, is that right?

MR MTHEMBU: Yes, sir.

MR LAX: And would that be the main entrance into the township or is that just the place where you entered into the township?

MR MTHEMBU: I think it's the route that we used into the township.

MR LAX: Right, now at some point the whole group of you, however many hundred there were, split up and there were two leaders of, according to some of your colleagues, there were two groups. What do you remember of that?

MR MTHEMBU: Because we were a very large group, we separated into groups when we went into the township.

MR LAX: Well, did you separate into many groups or into two groups or into three groups?

MR MTHEMBU: I would not be able to explain it because if we - when we entered the township, we just entered as a group.

MR LAX: Well, you see your colleagues say that they broke up into two distinct groups under the leadership of two individuals, each group. One group was under Tjonjo's leadership and the other was under Mkhize's leadership - that's what your colleagues say.

MR MTHEMBU: I understand that sir.

MR LAX: You weren't part of any of those groups, you just went your own way?

MR MTHEMBU: As I explained before that I was Tjonjo and everybody when we went to attack.

MR LAX: Well, what I'm trying to understand is, how did that separation happen, did you stop, did the two of them say "I want half this side, I want half that side, half of you must follow me, half you must go the other way - these things don't just happen on their own, somebody must stop and something has to happen, that's what we're trying to understand, that's why I'm asking you to see if you can help us.

MR MTHEMBU: We did not stop and decide who was going with who, I think it just happened that when we entered the township, some people took one route and the other group took the other route.

MR LAX: Okay, now as you entered the township then, one group took one route and another group took another route, is that what you're saying? Or different routes in the plural?

MR MTHEMBU: What I'm explaining sir, is that because we were a very large group, we did not use the same route or we did not attack the same houses, we just used the route in the township.

MR LAX: Okay. Are you able to give us any indication of which directions the main groups went in, from the point at which you are standing at Umsimvuvu Street, with the township in front of you, facing therefore towards the east. Did some go to your left, did some go to your right, some go straight down Umsimvuvu Street? What do you remember?

MR MTHEMBU: What I remember was that when we entered the township, we did not change direction, we just followed the easterly direction from the entrance of the township, going inwards.

MR LAX: So you would have carried down Umsimvuvu Street?

MR MTHEMBU: I think that because we entered through that direction, some of us would have proceeded along Umsimvuvu.

MR LAX: And you've told us that you did actually, you personally did proceed down there, is that right?

MR MTHEMBU: Yes that is correct, sir.

MR LAX: Now, I'm not sure what the scale here is but according to what Mr Berger indicated, from this point roughly at the beginning of Umsimvuvu Street down towards the park is about 900 metres, is that correct? That's about 9 football grounds?

MR MTHEMBU: I can see that sir.

MR LAX: Now that - were you walking, were you running, were you running fast, what were you doing?

MR MTHEMBU: We were hurrying because the people we were after were running into the houses.

MR LAX: Now, you told us you saw a group of people sitting around a fire when you got into the township?

MR MTHEMBU: That is correct, sir.

MR LAX: How far away from you was that group of people when you saw them?

MR MTHEMBU: They were not very far, but they were inside the township.

MR LAX: Well were they in the first block, were they in the second block?

MR MTHEMBU: They were just seated at the first block of the first houses into the township.

MR LAX: So they were seated at that first block as you come into Umsimvuvu Street, somewhere along that first block?

MR MTHEMBU: Yes that is correct.

MR LAX: And when they saw you they ran away?

MR MTHEMBU: That is correct, sir.

MR LAX: And you and others presumably chased them?

MR MTHEMBU: Yes sir.

MR LAX: Now how long and how far did you chase them?

MR MTHEMBU: As we were chasing them and they ran into houses, we also followed into the houses.

MR LAX: Can you point out for us on this map where those houses were that they ran into?

MR MTHEMBU: I would not be able to point out on the map because I do not know the township very well.

MR LAX: Okay. Now, while you were running and chasing these people, what else did you do?

MR MTHEMBU: There was nothing else that we did.

MR LAX: So you didn't break windows, you didn't break furniture, you didn't steal anything, all you can tell us is that you stabbed one person and that you hit another person over the head?

MR MTHEMBU: I have explained that, sir, that because these people ran into houses that was when property got damaged in the houses.

MR LAX: I'm not asking what these people did, I trying to understand what you yourself remember doing, yourself?

MR MTHEMBU: I explained that we destroyed property and whatever furniture that we found inside the houses.

MR LAX: Now you're told us that these people seemed to be forewarned, they saw you coming and they ran away?

MR MTHEMBU: Yes sir.

MR LAX: You've also said that you were quite angry?

MR MTHEMBU: Yes, sir.

MR LAX: You've also said that the Intelezi made you angry?

MR MTHEMBU: That is correct.

MR LAX: What I'm trying to understand is, was it this anger that made you just react and attack people indiscriminately?

MR MTHEMBU: Because we were already heartbroken and sore because we had been tortured and harassed in the township before.

MR LAX: Ja, my question was, from the way you described what you - how you felt - you seemed to have got very angry and then the Intelezi made you even more angry and the fact that these people seemed to be forewarned and running away from you must have made you even more angry?

MR MTHEMBU: Yes, sir.

MR LAX: So what I'm trying to understand is did you act out of anger in the situation and that's why you attacked people indiscriminately?

MR MTHEMBU: Yes, sir, it had come to a point where we did not know what to do because our people were dying daily.

MR LAX: Where did you get your two firearms from?

MR MTHEMBU: I bought the first one from Westgate in Johannesburg. I bought the second one in Vanderbijlpark.

MR LAX: This second one is a CZ isn't it?

MR MTHEMBU: Yes, a CZ83.

MR LAX: That's a standard police issue, isn't it?

MR MTHEMBU: I do not know whether the police used them.

MR LAX: Where did you buy that one?

MR MTHEMBU: At a gun shop in Vanderbijlpark.

MR LAX: You spoke about in the hostel you were divided up into units when you said that the people in your unit were Zwele and - I can't remember who the other person was - Buthelezi?

MR MTHEMBU: Yes that is correct.

MR LAX: What was the purpose of these units?

MR MTHEMBU: I cannot explain what the purpose was for because when I arrived that was how things were run, there was a Senior Unit and a Youth Unit.

MR LAX: A Senior Unit and a Youth Unit?

MR MTHEMBU: Yes.

MR LAX: Are you meaning committee?

MR MTHEMBU: Yes, sir.

MR LAX: Well you see, maybe there's some confusion here and you can clear it up for us but you were asked and this was in relation to one of the statements that was put to you, by Mr Berger I think it was, the person in that statement was saying that everyone in the hostel was divided up into a unit and you confirmed that, as opposed to a committee, you understand?

MR MTHEMBU: I do not understand, sir.

MR LAX: So do you know whether people in the hostel were divided up into different units or not as distinct from committees?

MR MTHEMBU: I do not have knowledge of that sir.

MR LAX: Just one last aspect, Mr Mthembu, you said that you didn't know whether there was any planning that preceded this attack?

MR MTHEMBU: Yes, sir.

MR LAX: Now you were asked in the request of further particulars at page 18 to provide details, the particulars of the various structures and in 5.1, 5.2 and 5.3 and so on, you are asked to explain the differences of these different structures, functions, authorities and so on. In 5.3.1 you talk about the Senior Committee, that is on page 24 and you describe it's functions and you say that one of their functions was to make plans to counter-attack the ANC and then you talk about "after everyone were chased from Boipatong and we could no longer shop or go there", do you see that?

MR MTHEMBU: I do not see it, sir.

MR LAX: Well read the last sentence of paragraph 5.3.1 on page 24, it's right in the middle of that page. You found it?

MR MTHEMBU: Yes.

MR LAX: Okay, now how did you know that that was one of the jobs of the Senior Committee?

MR MTHEMBU: I can say that we had been harassed - our leaders may have discussed this as leaders of the organisation.

MR LAX: You see, in this paragraph you say that's one of their functions, that's one of the jobs they do, you don't say they might have done that, you say they had to make plans. Now how did you know that?

MR MTHEMBU: I cannot say how I knew this because I was aware of the situation at the time in the Vaal Triangle.

MR LAX: Well why did you put it in your affidavit if you don't know it?

MR MTHEMBU: I am not able to give further comment on that.

MR LAX: Thank you Chairperson.

CHAIRPERSON: You told us that there was a Senior Committee in Kwamadala Hostel. From your own personal knowledge, do you know what their - what the function of the Senior Committee was?

MR MTHEMBU: No, sir.

CHAIRPERSON: Do you know who the members of the Senior Committee were?

MR MTHEMBU: Yes sir.

CHAIRPERSON: Yes I think you've given those, okay. Did they operate within the hostel?

MR MTHEMBU: Some of them were employees of ISCOR and some worked in the Vereeniging area.

CHAIRPERSON: But did they reside, did they stay in the hostel?

MR MTHEMBU: That is correct, sir.

CHAIRPERSON: Did you know where they had their meetings?

MR MTHEMBU: They held meetings inside the hostel, there is a stadium in the hostel.

CHAIRPERSON: Talking about the committee and I understand that to mean that they are just a few individuals who constitute the committee?

MR MTHEMBU: Yes they are a few.

CHAIRPERSON: Now also in regard to your committee I take that you're just talking about the three individuals who constituted what the Youth Committee, I think it is?

MR MTHEMBU: Yes sir.

CHAIRPERSON: Now, as a committee, did you hold meeting with the larger membership of the youth?

MR MTHEMBU: Sometimes, as members of the committee we would meet first and thereafter we would then meet with the other youth members in a general meeting maybe briefing them on certain issues like rallies and conferences at Ulundi.

CHAIRPERSON: I see, now do you know whether the Senior Committee also functioned in the same manner in which you did i.e. meet separately and then at some stage go to the larger membership to brief them?

MR MTHEMBU: I think, sir, that this is how it happened because they would not call up another meeting before they had discussed on the issues first.

CHAIRPERSON: Did you meet meetings together with the Youth Committee - no, no, the Senior Committee members as a Youth Committee?

MR MTHEMBU: With regards to that, we'll explain that if perhaps there was an issue that pertained to the youth, they would call us and we would discuss the issue.

CHAIRPERSON: Yes and would they do the same if it is an issue which effects the larger membership of the Senior Committee and the larger membership of the youth?

MR MTHEMBU: That is correct.

CHAIRPERSON: As I understand your evidence, the residents of Kwamadala Hostel were troubled by the fact that their members were attacked and I think you used the word necklaced whenever they went to the township?

MR MTHEMBU: Yes sir.

CHAIRPERSON: Was there any stage when the Youth Committee and the Senior Committee came together to discuss this issue?

MR MTHEMBU: We had met on several occasions because we would meet, discuss this matter, try to find a solution to this problem.

CHAIRPERSON: Was Mr Dlamini the IFP representative in Vereeniging, well in the Vaal Triangle, called to one of those meetings?

MR MTHEMBU: He would attend some meetings and sometimes he would not be able to attend when he was in Durban.

CHAIRPERSON: At these meetings were there any suggestion, proposals made as to how to deal with this problem of IFP members being attacked whenever they go to Boipatong?

MR MTHEMBU: It did happen that Mr Dlamini was informed that we as IFP members recommended that the Chief Minister Buthelezi to be informed of our problem in the Vaal Triangle.

CHAIRPERSON: That the suggestion that the matter ought to be reported - were there any suggestions to how to deal with the problem at hand?

MR MTHEMBU: No, sir. There were no suggestions.

CHAIRPERSON: Were perhaps people warned that in view of the dangerous situation which prevails in Boipatong, people should not leave the hostel and go there?

MR MTHEMBU: Yes they were told but the unfortunate part is that some of these people had fled from the township and had family residing in the township and sometimes they would go to check on their families and be attacked in the township.

CHAIRPERSON: Did it perhaps occur to the residents of Kwamadala Hostel that the attack might well be taken into the hostel?

MR MTHEMBU: It was obvious, sir, that the residents of Kwamadala Hostel could be attacked because the community of the Vaal Triangle had already stated that they did not want the IFP in the area.

CHAIRPERSON: Yes, had there been threats that they would come into the hostel?

MR MTHEMBU: Yes, there were rumours that these people may attack us at the hostel.

CHAIRPERSON: Yes, what decision, if any, was taken by the residents of Kwamadala to protect themselves against such a ..[inaudible] threat?

MR MTHEMBU: As far as I can see, I think this was reported even to the management of ISCOR because the police patrolled around the Kwamadala area.

CHAIRPERSON: Was there any discussion about the residents having to protect themselves by arming themselves?

MR MTHEMBU: I can say that because of the situation of the bad situation at the time, as Amazulu, we have traditional weapons that we always keep with us, such that those who did not have them were supposed to acquire them, fetch them from home.

CHAIRPERSON: Yes and I suppose that the - I mean arming oneself was not restricted to arming oneself with cultural weapons, you could arm yourself with firearms if you can obtain one?

MR MTHEMBU: Yes that is correct.

CHAIRPERSON: And then to your knowledge, this is now personal knowledge, do you know whether the attack on Boipatong was discussed at any stage prior to the 17th June 1992?

MR MTHEMBU: I do not have knowledge of that sir.

CHAIRPERSON: Damara Tjonjo and Bhekinkosi Mkhize are the persons who took the decision that there has to be an attack on Boipatong?

MR MTHEMBU: Yes sir.

CHAIRPERSON: What role did Damara Tjonjo play within the hostel in the affairs of the IFP?

MR MTHEMBU: As far as I know, Damara Tjonjo was one of the people who looked after the residents of Kwamadala Hostel like protecting them in the event of attack.

CHAIRPERSON: What about Mr Bhekinkosi Mkhize?

MR MTHEMBU: From what has been read to me I discovered that Mr Mkhize was one of the Amabuto.

CHAIRPERSON: Yes, forgetting for one moment about what has been read to you, I just want to talk about your own personal knowledge as to what his position was and his role was within the hostel?

MR MTHEMBU: I can say he was one of the Indunas at Kwamadala Hostel.

CHAIRPERSON: Apart from stabbing and hitting with the knopkierrie, what else did you do?

MR MTHEMBU: I broke windows of the houses that we passed and if we saw a house on the road we would actually cut the tires open.

CHAIRPERSON: Now there is a mention of white headbands and somewhere reference is made to red headbands. What was the colour of the headbands that you were wearing?

MR MTHEMBU: We were using white headbands.

CHAIRPERSON: You testified earlier on that - if I recall your evidence that you did not know what Amabuto is - is that what you said?

MR MTHEMBU: Yes sir.

CHAIRPERSON: Yesterday you described how in the days of King Shaka, people would attack and then bring back the cattle as a sign of victory, remember that?

MR MTHEMBU: Yes sir.

CHAIRPERSON: The people who went to attack, do you know what they were called? Weren't they called Amabuto?

MR MTHEMBU: I have no knowledge of that, sir.

CHAIRPERSON: You do not know what they were called?

MR MTHEMBU: Yes sir.

CHAIRPERSON: Is there anything arising?

MS PRETORIUS: No questions, thank you Chairperson.

CHAIRPERSON: Mr Strydom?

MR STRYDOM: No questions.

MR BERGER: I just have a very few questions Chairperson.

CHAIRPERSON: Yes?

FURTHER CROSS-EXAMINATION BY MR BERGER

MR BERGER: Mr Mthembu, at page 10 paragraph 16 of your affidavit, you say "They told us to take traditional weapons and we had to put red headbands around our heads so that we would be recognised and would not kill one another by mistake." Why did you say there that they were red headbands if they were white?

MR MTHEMBU: You are white, Mr Berger, you will not understand what I am talking about. We used to use white headbands. I have explained here the colour of the headband that we were using, these colours were white and you will not understand and you will not know this.

CHAIRPERSON: All that he's asking you is, why is it stated in your affidavit, why is there reference to a red band in your affidavit? Do you understand the question?

MR MTHEMBU: Yes I understand the question.

CHAIRPERSON: He's putting it to you that you referred to a red band, red headband, when in fact you told us that you had a white headband. Now what he wants to find out is why, you know, you are referring to a red headband when in fact you had a - was it a mistake or what?

MR MTHEMBU: It might as well be a mistake but what I know is that we were using red and white headbands.

MR BERGER: Mr Mthembu, if it was a mistake why didn't you just say that to me when I asked you the question instead ...[intervention]

CHAIRPERSON: We're not going to take this any further whether they were red or white, the fact of the matter is he says they used both of them.

MR BERGER: As you please, Chair. Mr Mthembu, could you give the name of the shop from which you purchased your CZ83 in Vanderbijlpark?

MR MTHEMBU: I do not remember the name of the shop quite well, but there is a furniture shop and there is a furniture shop right next to - there is a gun shop right next to the furniture shop.

MR BERGER: Could you say what street in Vanderbijlpark it's in?

MR MTHEMBU: I do not quite remember the name of the street, but it is near the police station in Vanderbijlpark.

MR BERGER: Mr Mthembu, would you know that at the time of the attack of the leading members of the IFP who were staying in Boipatong there was a Mr Mkhize in Bapedi Street?

MR MTHEMBU: I have no knowledge of that.

MR BERGER: A Mr Khubeka of Majola Street?

MR MTHEMBU: I don't know him as well.

MR BERGER: A Mr Zimba of Majola Street?

MR MTHEMBU: I have no knowledge of that.

MR BERGER: Thank you Chairperson, I have no further questions.

NO FURTHER QUESTIONS BY MR BERGER

CHAIRPERSON: Yes, Ms Cambanis?

FURTHER CROSS-EXAMINATION BY MS CAMBANIS

MS CAMBANIS: Thank you Chair, there's just one question.

Sir, in response to the question whether there was a decision taken to protect yourselves from possible attacks, you said as far as you knew it was reported to the management of ISCOR and thereafter police began patrolling around the Kwamadala Hostel, is that correct?

MR MTHEMBU: Yes that is correct.

MS CAMBANIS: When did this police patrols begin around the Kwamadala Hostel?

MR MTHEMBU: They started patrolling since 1990 that is as far as I know.

MS CAMBANIS: So on the night of the 17th June 1992 those police patrols round Kwamadala Hostel were taking place, is that correct?

MR MTHEMBU: Yes, the police used to come and patrol, often times.

MS CAMBANIS: Thank you, thank you Mr Chair

NO FURTHER QUESTIONS BY MS CAMBANIS

MS PRETORIUS: No questions.

CHAIRPERSON: Yes, Mr Brink?

MR BRINK: No questions thank you Mr Chair.

NO QUESTIONS BY MR BRINK

CHAIRPERSON: Yes, very well, Mr Mthembu we are finished with your questioning, you may now return to your seat. We will now proceed with the remaining applicants.

MR MTHEMBU: Yes.

WITNESS EXCUSED

CHAIRPERSON: Perhaps before we get to the other applicants, would counsel need some time I suppose just to, you know, get their thoughts together and then perhaps we can kick off as soon as counsel is ready or should we take the tea adjournment at this stage and maybe come back at about quarter past eleven or eleven o'clock?

MR BERGER: Chairperson, I am ready so whenever it pleases the Committee, we can start.

MR STRYDOM: I'm not going to start, sir, I'm also ready but I think it's not a bad suggestion that we can take the tea adjournment now.

CHAIRPERSON: Yes, I suppose so, I think we should now take the - a short adjournment until about eleven o'clock and then when we come back we can then hear the argument in regard to the remaining applicants. We'll rise and come back at eleven o'clock.

COMMITTEE ADJOURNS.

ON RESUMPTION

CHAIRPERSON: It has been drawn to my attention that some of the headphones have since gone missing I would urge people who make use of these to make sure that they leave them behind on their seats after we have come to the close of these proceedings, thank you.

Right, we've now come to the remaining fifteen applicants who have also applied for amnesty. We understand that the victims have raised an objection to their application on the basis that their applications do not comply with the requirement of the Act. It is only proper therefore that we at this stage, before going into the merits of the applications by the remaining applicants, that we should deal firstly with the question whether or not these applications comply with the Act. In that regard, the legal representatives will then submit argument to this Committee and hopefully at the end of the argument, we will be able to make a decision as to whether or not these applications can be heard on their merits. Mr Berger, you lead the fight.

MR BERGER: Thank you Chairperson.

CHAIRPERSON: And you can assume that we've read your heads of argument and that we are, speaking for myself, I am familiar with the authorities but perhaps my colleagues may want you to deal with some of the authorities that you want to refer to and I suppose that when they do so, they will indicate.

MR BERGER: Thank you, Chairperson, I do not intend to have a very long argument and ...[intervention]

CHAIRPERSON: In fact let me ask you this - the issue that you're raising is that the applications do not comply with the requirements of the Act in the sense that there were only two pages, were initially filed on the 10th May 1997 which were not deposed to by these applicants and that the full and complete applications were only submitted to the TRC on the 13th February 1998 - you have in essence, the point - the argument?

MR BERGER: That is in essence the argument, Chairperson, but if I could just by way of introduction state that what we have before us at the moment in the bundles are fifteen applications as you correctly point out, Chairperson, which were submitted only in February of 1998. Those are fresh applications, they start the proceedings from the beginning. There is no question or no reference in any of these applications, the ones that are before the Committee that they refer in some way to the applications which were lodged in May 1997. So the first point I want to make is that they are fresh applications.

CHAIRPERSON: What about the numbers? What about the numbers? Don't these numbers refer to the earlier application?

MR BERGER: If one looks at page 45, that AM number?

CHAIRPERSON: Yes.

MR BERGER: Well, Chairperson, I don't know when that number was placed on that document.

CHAIRPERSON: But no, I'm just dealing with the notion that there's no reference to earlier applications but what I'm saying is that - did they not bear the same number that occurs in the earlier applications?

MR BERGER: I haven't checked that but I assume that they do.

CHAIRPERSON: I've checked with that, I think they do.

MR LAX: Confirmed?

CHAIRPERSON: Yes.

MR BERGER: Chairperson, the point I'm making is that form 1, which is the requirement in terms of the Act for the launching of an application was resubmitted afresh in February 1998. If the applications and even if there is a connection between this document and the previous document, my submission is that the applications must stand or fall by what was submitted to the TRC prior to the cut off date and I understand my learned friends' heads of argument, at least we're agreed on that, that the validity or otherwise of the applications must be judged in the light of a document which was submitted timeously. Now the Committee has a copy of one of those applications and we have been told that they are all identical. Our submissions are that Section 20 of the Act sets up three jurisdictional requirements for Amnesty.

a) That it must comply with the requirements of the act, the application.

b) That is must be an act associated with a political objective c) That there must be full disclosure.

The basis of the argument is that those are three separate jurisdictional facts, each of which has to be satisfied in order for the Committee to be in a position to grant amnesty.

The Act in Section 20 says that if the Committee is satisfied on those three jurisdictional facts then it shall grant amnesty. The use of the word "shall" is instructive because it would seem that at that stage, once those three jurisdictional facts are satisfied, then the Committee has no option but to grant amnesty, hence the use of the word "shall."

However, it's the basis of the argument that if any one of those three jurisdictional facts is not satisfied, then in our submission, the Committee does not have the power to grant amnesty.

CHAIRPERSON: Isn't there a distinction here, the two sections - the first section, Section 18 of the Act, which makes provision for the submission of the applications for amnesty and it's set out that it shall be submitted on the prescribed form within the time allowed?

The second section is Section 19 (i) which deals with what the Amnesty Committee is required to do upon receiving any application and it includes, amongst other things, the power to give directions as to the completion of that application and resubmission of that application and then calling for further particulars if the Committee deems that necessary and then there is the third section which is the section that you're referring to - that section deals with the power to grant and it set out the circumstances under which it grants. It seems - prime facie - it seems to me that the [inaudible] question is, what is the proper construction of Section 19 (i) -that seems to me to be the essential issue.

MR BERGER: Well, Chairperson, in our submission it's - the essential issue is what is the proper construction to be placed on Section 18 of the Act, because Section 18 is the starting point.

CHAIRPERSON: But clearly that Section must be read with Section 19.

MR BERGER: Okay, I have no difficulty with both sections being at the core of this particular problem and the proper interpretation of both sections. Section 19, the section that you refer me to, does use the word "upon receipt of any application for amnesty" and then talks about the Committee returning the application to the applicant and giving such directions in respect of the completion and submission of the application. It doesn't talk about re-submission of the application, the application - when an application is submitted, in our submission it must be a valid application. Now the use of the word "any", my learned friend for the applicants says in his heads of argument that any means any and therefore includes invalid applications as well. Chairperson, there is a case referred to in my heads at page 5, paragraph 16 - "Minister of Safety and Security versus Malutsi and another". Now whilst it's authority for the proposition that I make in that paragraph, it's also authority for the proposition that "any" doesn't necessarily mean "any" -the law reports, Chairperson, as you will know, are repleted cases which say that "shall" does not always mean "shall" , "and" doesn't always mean "and" and so on, one has to look at it in it's proper context. Now in the Malutsi case, if I could very briefly state what happened. Mrs Malutsi instituted action against the Minister of Safety and Security for damages arising out of the death of her husband. Her husband was shot and killed by a policeman. Initially it was alleged that that policeman shot and killed the deceased acting within the course and scope of his duties as a policeman. It became apparent just before trial that perhaps that cause of action wasn't going to be successful and another - well it was argued that it was an extension of the cause of action but the court found it was a new cause of action - was found - which said that it was negligent for the Minister or for the police to have issued this particular policeman with a gun and therefore and that negligence - the policeman had a criminal record - and therefore that negligence led to the death of the deceased. The reliance was placed - you will recall there was Section 32 of the Police Act that said if you didn't issue a letter in terms of Section 32 out one month before you issued summons, in which you set out the cause of action, you were forever time barred and your cause of action had to be started within six months - your summons had to be issued within six months. A proclamation had been issued by the Minister of Safety and Security prior to that which repealed Section 32 and included a new provision, Section 17, which said "any cause of action" and again used the word any, "which arose prior to the coming into operation of this proclamation will now be governed by the terms of this proclamation" and the proclamation gave the courts the discretion to condone non-compliance with Section 32, it was now Section 17, you could institute action within a year but even if you didn't do that, as long as it was in the interests of justice, the court could dispense with the requirements of that section, whereas previously, under the old legislation, the court - once the time bar came down in terms of Section 32, that was the end of it and the courts had no power to condone and it was argued on behalf of Mr Malutsi, that any cause of action meant exactly what it said, "any cause of action". It was found by the Appellate Division, Chief Justice Corbett at the time said the following at page 97 of this judgement, he said "The proviso which makes Section 17 applicable speaks of all such causes of action" This refers back to the opening words of paragraph 1, quote "any cause of action."

"Any" is an all embracing term and then there's a quote from N.S.J.A. "In it's natural and ordinary sense, 'any', unless restricted by the context, is an indefinite term which includes all the things to which it relates."

Chief Justice Corbett continued: "The critical question in this case is whether any cause of action in the opening part of paragraph (i) should be given an all inclusive or a restrictive meaning. Should the term be interpreted to comprehend cases where prior to the commencement of the proclamation the claimant in respect of a cause of action which arose against the police force had not complied with the requirements of Section 32 and as at the commencement of the proclamation time had run out or should it be read to restrict it's provisions to such cases where as at the commencement of the proclamation, time had not yet run out. For convenience, I shall refer to these respectively as the extensive interpretation and the restricted interpretation" and the court finally came to the conclusion that any cause of action did not mean "any cause of action" it meant any cause of action that was still valid.

I'm sorry, I'm being told that I'm speaking too fast for the interpreters, I'll slow down.

The sum total of everything that I've said up to this point is that any cause of action in that statute was interpreted in it's context to mean "any cause of action which was still valid".

CHAIRPERSON: But isn't the key question the passage that you've read, that is the word "any", given it's ordinary meaning, is an indefinite terms which refers to all that it refers to unless it is restricted by the context in which it occurs and the enquiry here must be whether, in the context in which it occurs, in Section 19, is it to be given the broad or the restrictive interpretation? Isn't that the essence of the matter?

MR BERGER: Yes, but in the Malutsi decision, unless it is qualified by it's context, was a quote back to words used by N.S.J.A. Yes, but the finding in Malutsi was as I have set out in our heads of argument, the actual wording of the section and the proclamation as a whole, did not in it's context restrict the meaning of the word "any", it did not.

CHAIRPERSON: I don't know whether you understand what I'm saying, what I'm saying is that the enquiry here is whether the word "any" in the provision in which it occurs in Section 19, is restricted. In the case that you've cited, the court found that it was not or that it was, whatever the finding was?

MR BERGER: That is was restricted.

CHAIRPERSON: It was restricted - but the court had to interpret that in the context in which it occurs.

MR BERGER: The court came to the conclusion that "any" in that case was restricted because of competing rights, because of vested rights.

CHAIRPERSON: Yes I understand that.

MR BERGER: That was the context, not the context of the legislation, but the context in which the legislation applied.

CHAIRPERSON: Is it the enquiry here whether "any" is restricted, that is what I'm trying to find out from you?

MR BERGER: Chairperson, our submission is that that is not decisive, that's what I'm trying to explain.

CHAIRPERSON: Okay.

MR BERGER: It is correct, if I could address this problem of the Committee, it is correct that the use of the word "any" could mean, could be restricted to mean any valid application or it could mean any application however defective. Because of the argument which I make later, the submission is that it means a valid application because of vested rights which are at play but even if I am wrong on that, even if "any" means literally anything, even a scrap piece of paper with a name saying "I'm applying for Amnesty." - even if it includes that and I'm quite happy to argue it on that basis, our submission is that the requirements of Section 18 have not been satisfied. If "any" means "any" in it's widest possible sense then an application comes into the Committee, as these applications did, then the Committee can return the application and say "your application is defective, re-submit" if the word and submission of the application means re-submission, I'm happy to argue it on that basis as well - re-submit you application. The Committee did not do that. The reason why I would venture why the Committee did not do that is because an undertaking was given in the covering letter attached to my learned friends' heads of argument which said that we will provide further details at a later stage and indeed the further details which were provided were in the form of fresh applications which came in February 1998. So "any" application can mean a defective application but then the question remains is - has Section 18 been satisfied?

Now Section 18, Members of the Committee, says "Any person who wishes to apply for amnesty in respect of any act, omission or offence on the grounds that it is an act associated with a political objective, shall within a certain time period submit such an application to the Commission in the prescribed form." My learned friend argues at page 12 of his heads of argument that the word "shall" in Section 18 refers to the time period and not to the prescribed form. I submit that that is clearly wrong if one de-constructs the wording of Section 18 it is quite clear that the word "shall" governs both the time period and the submission of the application because if the word "shall" doesn't govern the submission of the application, the section would read "any person who wishes to apply for amnesty - something - submit an application to the Committee in the prescribed form." That "shall" as a matter of English grammar can only be read as governing both the time period as well as the submission of an application, it cannot be read in grammar any other way other than that.

Now, the prescribed form was promulgated, some forms seem to have six pages and some forms seem to have four pages but I would suggest that just depends on the printer that was available at the time, but the contents is identical. The regulation promulgated in terms of the section makes it clear again in Section 2.1 that it - well it says "an application for amnesty in terms of Section 18 of the Act "shall" be made in the form of form 1 of the annexure.

Our submission is that the purpose of the form is to solicit information to determine whether prima facie an applicant is entitled for amnesty and there are certain requirements set out in the form. One is that is must be sworn to or solemnly affirmed before a Commissioner of Oaths, that's at the top of the form and at the bottom of the form there's place for a deponent to sign and a Commissioner of Oaths. It's suggested by my learned friend in his heads of argument that deponent doesn't mean deponent, anybody can sign on behalf of a deponent but, with respect, that cannot be right when the legislature requires a document to be submitted under oath such as an affidavit. If there's an affidavit that has to be submitted in certain proceedings, the deponent to the affidavit must be the deponent who has the knowledge contained in that affidavit. If I want to buy a house and I have to depose to an affidavit, I personally must depose to that affidavit to state that certain facts are true and correct.

CHAIRPERSON: What happens to a perpetrator who since the killing that he's been involved in has since turned blind and lost both his hands?

MR BERGER: Then he goes with an assistant to a Commissioner of Oaths, he is asked do you swear that the contents...[intervention]

CHAIRPERSON: Will he sign?

MR BERGER: Will he sign?

CHAIRPERSON: That's what I'm asking you.

MR BERGER: If he is totally unable to make any mark with his feet or with his mouth or anything?

CHAIRPERSON: He's lost both hands and he is blind.

MR BERGER: Either he will make a mark some other way or the person mandated by him will make a mark in front of a Commissioner of Oaths and it will be recorded that this mark or this signature was made in my presence before a Commissioner of Oaths, the deponent acknowledging that the person who makes the sign is mandated to do so. In other words the deponent to the affidavit, the person whose affidavit it really is, will have to indicate in some way to the Commissioner of Oaths, that this is really his affidavit but he is unable to sign and therefore someone is signing on his behalf.

CHAIRPERSON: I want to illustrate to you that then there were the circumstances under which a person, although he may well the perpetrator, for whatever reason he may not be able to sign but detract from the fact that that application is made by that person.

MR BERGER: But Chairperson, that is a far cry from what has happened in this case.

CHAIRPERSON: Well it's to illustrate the proposition, what happened in this is a different matter.

MR BERGER: But Chairperson, the point is that it has to be affirmed to before a Commissioner of Oaths and so therefore even the blind person with no hands has to appear before the Commissioner of Oaths, that's the point that I'm making.

Now, the letter that came ...[intervention]

MR LAX: Sorry, Mr Berger, I was just confirming - this is totally beside the point but the normal procedure in this situation put to you would be that the Commissioner of Oaths themselves would actually record a special attestation clause saying they have spoken to the person, they confirm that although there's no mark, he confirms the contents of the affidavit.

MR BERGER: Yes, he would have to be present?

MR LAX: Yes, no obviously.

MR BERGER: The covering letter which enclosed the applications in May 1997 is purportedly an application on behalf of seventeen people. It says there that you will notice that only the first and last pages of the application form have been completed meaningfully and the answers to the rest - paragraphs 8 - 12, all read "will be submitted at a later stage. The reason for this is that we are not in a position to contact our clients personally before the cut off date. That is also the reason why the forms have not been attested to, we hope however to provide the outstanding information to you "deesdags" Within a couple of days, I assume that means.

MR LAX: It just means in due course.

MR BERGER: Thank you. One of the people who it was said that "we are not in a position to contact our clients personally" was Mr Victor Mthembu. He's recorded there as number as number 13. His very application was signed on that very day, the 9th May 1997. So, as a matter of fact, we know that that is not correct in relation to Mr Victor Mthembu.

The second point is that Mr Lukhozi, Thomas Lukhozi, had an application form submitted, he's number 14 on this list and we now have a statement from Mr Thomas Lukhozi saying that when he was approached to make an application for amnesty, he refused, he did not want to make an application for amnesty.

For all seventeen people, the first and fourth pages were identical and I set out in heads of argument exactly what was there, there was just a name and address, an age, a case number, a charge and a statement that no civil proceedings were pending.

The submission that we make is that it is clear that as at 30th September 1997 which was the cut off date, which was some four months after the applications were faxed through to the TRC offices, applicants 1 - 15 had failed to submit their applications in the prescribed form.

In the case referred to at paragraph 12 of the heads of argument, Williamson versus Schoon, Judge Nafsa was dealing with the question of whether or not the court had jurisdiction to stay some civil proceedings pending the outcome of Craig Williamson's amnesty application. 19.6 is a sub-section of 19 and 19.6 says "If the act, omission or offence, which is the subject of an application under Section 18, constitutes the ground of any claim in civil proceedings instituted against the person who submitted that application. The court hearing" - and then I'll summarise the court hearing that claim - " may in it's discretion stay the civil proceedings pending the consideration and disposal of the application."

The section specifically talks about someone having submitted an application in terms of Section 18 and Judge Nafsa found that the court had no jurisdiction to entertain a claim for stay of proceedings until such time as a proper application had been made in terms of Section 18 and at page 1071 b - c of the judgement, Judge Nafsa said "It is important to note that in terms of Section 19.6 and application for amnesty, with the required particularity is required to be lodged before a court is called upon to exercise it's statutory discretion. No provision is made for a stay of proceedings before an application for amnesty has been made."

If that is so, Chairperson and Members of the Committee, that the court has no jurisdiction to stay proceedings until an application for amnesty has been made or as Section 19.6 expressly says "the person who submitted that application or above that an application under Section 18 has been made". In my submission, that judgement is authority for the proposition that an application is only properly made in terms of Section 18 when it is submitted within the prescribed time period in the prescribed form and contains the particularity required by the prescribed form.

Now obviously my learned friend pointed out in his heads of argument, the prescribed form says it must be in capital letters and therefore does it mean if it's not in capital letters that that's not proper compliance?

There's a whole string of cases. Sometimes the Appellate Division goes one way, sometimes the Appellate Division goes another way but the thrust of the cases is that if compliance is prescribed, if it's preemptory, that means substantial compliance. Sometimes the cases put it differently, they say well, let's not talk about substantial compliance or exact compliance, let's look at what is requested and how far from what is requested has been furnished. That's another way in my submission of saying look for the substance, has the substance been complied with.

CHAIRPERSON: Let me put this to you. You see one of the problems that the nation faced at the time of the promulgation of the statute was that there had been massive gross violation of human rights. Victims had no idea how and when it occurred, they didn't know the truth. The primary purpose of the Act is to uncover the truth and in doing so it encourages the perpetrators to come forward so that the victims can learn if the truth is spoken - what happened to their loved ones, the circumstances under which they died. Should we not find an interpretation that would be consistent with this policy of the Act? An interpretation which would be consistent with the policy of the Act, ensuring that perpetrators come before the TRC rather than obstructing them from coming to the TRC. Isn't that the policy which one should have in mind in trying to give meaning to these provisions?

MR BERGER: Chairperson, there are competing considerations as far as the victims and the perpetrators are concerned. It is a major purpose of the Act to uncover the truth.

CHAIRPERSON: Well the victims' interest is to know the truth that's one of their interests and they are here today, I suppose, precisely because of that.

MR BERGER: Chairperson, if I can develop an argument, my point is this - that is a major purpose of the Act, but the Act sets certain parameters - for example, if a perpetrator were to come today to say "I would like to apply for amnesty and appear before the TRC and I can give vital information about some massacre that has not yet been - the truth about which is not yet known." Would the TRC and would the Amnesty Committee entertain that application even though it is late and I submit not because the Act says "you shall submit your application within a certain time". The offices of the TRC were kept open, I recall until midnight on that day so that applications could be submitted timeously.

Chairperson, I'll come back if I might to the question of competing interests but there's a judgement ...[intervention]

CHAIRPERSON: Perhaps you should just deal with that now so that we can get on with your argument - deal with the competing interests now, unless it will put you off the track?

MR BERGER: I'll come back to where I was and I'll proceed to competing interests, Chairperson.

CHAIRPERSON: Next, the competing interests?

MR BERGER: I was leaving that for the end of my argument but I can deal with it now, Chairperson.

CHAIRPERSON: Well with whatever suits you.

MR BERGER: No, I'll deal with it now, Chairperson, it seems to of concern. The granting of amnesty in terms of the Act was a constitutional requirement. I don't think I need to go into the history of the compromise that was reached at Kempton Park, everybody knows about it. In the interim constitution, it was recorded that there shall be amnesty and the constitution said "Amnesty shall be granted" - let me start at the beginning of the sentence: "In order to advance such reconciliation and such reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past. To this end, parliament under this constitution shall adopt a law determining a firm cut off date which shall be a date after 8 October 1990 and before 6 December 1993 and providing for mechanisms, criteria and procedures including tribunals, if any through which such amnesty shall be dealt with at any time after the law has been passed." The constitution said that an act of parliament must provide for procedures and criteria through which amnesty can be granted because amnesty was not going to be granted to any one and everyone, it had to be granted in terms of certain criteria and in terms of certain procedures - that's what the constitution required so it was prior to the start of the work of the TRC, even prior to the Human Rights Violations that the constitution already contained an imperative that there shall be amnesty but subject to procedures and subject to criteria.

That there is a trade off between truth and justice was recognised and in fact has been recognised by the Constitutional Court in the AZAPO case, AZAPO versus President of the Republic of South Africa - it's referred to in my heads of argument. The Deputy President, Justice Mohammed as he then was, said the effect of an amnesty undoubtedly impacts on very fundamental rights. All persons are entitled to the protection of the law against unlawful invasions of their right to life, their right to respect for and protection of dignity and their right not to be subject to torture of any kind. When those rights are invaded, those aggrieved by such invasion have the right to obtain redress in the ordinary courts of law and those guilty of perpetrating such violations are answerable before such courts both civilly and criminally and amnesty to the wrongdoer effectively obliterates such rights.

Now my learned friend says there will be no prejudice to anybody if these defective applications are allowed to stand. That is not correct. Meta Molete will not have the right to sue - Meta Molete, Mrs Pauline Mbatha will not have the right to sue if the applicants are granted amnesty.

CHAIRPERSON: Isn't the point that it's being made at this -because the ruling that these applications comply with the Act, you should know that, does not mean that the applicants are entitled to amnesty. The question whether they are entitled to amnesty is a separate matter altogether which will depend upon whether the Committee is satisfied, amongst other things, that they have made a full disclosure and that in addition to that, what they did is associated with a political motive - it is in that limited sense that I understood the prejudice to be referred to.

MR LAX: You see, Mr Berger, what you're asking us to weigh up here is, not the prejudice that would accrue when the application is granted, or not - when the application for amnesty is granted or refused - but rather the prejudice that might or might not accrue at this stage in terms of us allowing the applications in or not, in other words, whether we would countenance them or not. That's a very subtle and completely different issue.

MR BERGER: It's, with respect, not completely different and the reason is the following. I've submitted that Section 20 which sets out three jurisdictional requirements, that all of them must be satisfied before amnesty can be granted. Section 3.1 (b) of the Act says under the heading "The objectives of the Commission - the objectives of the Commission shall be to promote national unity and reconciliation in a spirit of understanding which transcends the conflicts and divisions of the past by (b) facilitating the granting of amnesty to persons who make full disclosure of all the relevant facts relating to acts associated with a political objective and comply with the requirements of the Act." So it's clear that complying with the requirements of the Act is an essential prerequisite before amnesty can be granted.

MR LAX: Mr Berger, what we're asking you to address us on in essence and this is where some of us have a concern and that is in arriving at Section 20 and the three jurisdictional requirements inherent in Section 20, should we not read that all together as the process by which the application comes to us i.e. Section 18 and Section 19 because it goes further than just Section 20. There's an additional process in terms of which even when they are received we're still entitled to ask for further particulars and a whole range of other information gathering and investigative tools, if you like. So what I'm asking you in essence is this, should we not be drawing a distinction between a number of different things here. On the one hand the submission of the application, add to that Section 19 which provides a mechanism for giving directions on completion or submission and for further particulars. After that point you then have an application. That application is then in and then there's a further opportunity for further investigation and further particulars which is then inherent in the other sections after that. So what I'm putting to you or asking of you is should we not be reading a consistent process in 18 and 19 which precedes the jurisdictional factors inherent in Section 20?

MR BERGER: Mr Lax, unfortunately you're now taking me out of vested rights and into something else, but I'll answer that and then I'll try and work out where I am.

MR LAX: Maybe leave it hold and when you get to it you can answer it. It's okay, I don't want to take away from your argument.

MR BERGER: No, no, it's important for me to say this. The requirement of 20(a) that the application comply with the requirements of the Act, is a completely different requirement from the requirement of full disclosure. The requirement of full disclosure goes to further particulars and evidence before the Committee - that's what full disclosure is directed at but 20(a) is something different to full disclosure. It's something different to the particularity that the Committee can request at a later stage. If I can just go back to the vested rights and then I'll finish off with this.

The AZAPO case argued or the applicants argued in AZAPO "you can't deprive us of our rights in the civil courts and the criminal courts by granting amnesty because that would be contrary to Section 22 of the Constitution" and Justice Mohammed recognised this competition in the passage I've just read and also at page 683 where he said "Every decent human being must feel grave discomfort in living with a consequence which might allow the perpetrators of evil acts to walk the streets of this land with impunity, protected in their freedom by an amnesty immune from constitutional attack, but the circumstances in support of this course require carefully to be appreciated."

What I'm submitting to the Committee is that, yes it's correct that if the applications are allowed in, it doesn't necessarily mean the applicants will get amnesty, that is clear, but if the applications are allowed to proceed then they can only proceed on the basis that they comply with the requirements of the Act and then what is left for the Committee to be satisfied on is (b) and (c), whether the Act associated with a political objective and whether there has been full disclosure and that will relate to the further particulars and to the evidence before the Committee but once the applications are allowed to proceed for example Mr Mthembu's application. Mr Mthembu's application complies with our requirements of the Act so he has satisfied the one jurisdictional fact already. Once the other applications come in, they have satisfied the one jurisdictional fact. Mr Mthembu now has to satisfy full disclosure, those are all his affidavits and what he said before the Committee and the requirement of a political objective. So there is a real and substantial prejudice which accrues to the victims if the applications are allowed to proceed because then jurisdictional fact (a) has been satisfied and the applicants are one third of the way closer to amnesty.

If one accepts that there are vested rights at play here then Sections 18, 19 and 20 must be construed restrictively. I'm at paragraph 16 of my heads of argument. The Appellate Division in the Malutsi case said we can interpret 'any' to mean any cause of action which arose but then we must recognise that once the six month bar has fallen in actions against the police under Section 32 of the Act, the police have a vested right not to be sued and you can't take away that vested right unless that is the only possible meaning that you can give to the legislation. The Appellate Division said, no, we can construe the legislation restrictively so that it doesn't take away vested rights and so we will construe the word 'any' to mean any application that has not yet become time barred.

MR LAX: Just on that issue, what about the vested rights of the applicants? Why should we lock the door on them and interpret that so as to take away their vested rights to have their applications heard?

MR BERGER: Because, Chairperson, they had the right in terms of Section 18 of the Act to apply for amnesty in the prescribed form. They had from - well from 1996 they had the right to apply for amnesty but even if one leaves that out of the picture and we know that they were intending to apply for amnesty because the judge says so in his judgement, he says "I'm told you're intending to apply for amnesty." We don't know which of them were intending to apply, all of them or some of them but at least that was mentioned, so in 1994 the question of amnesty was considered. The form was promulgated in 1996, people were in jail, people were in contact with their lawyers. In 1997 in May applications were put in, the lawyers knew that there was a problem and the applicants dilly dallied from May until January and it was only after a letter from the TRC in November of that year saying we still don't have any information from you that the fresh applications were re-submitted. So, yes, the applicants had the right to apply for amnesty but it's their own delay which has put them in the position which they are in today. Mr Mthembu applied timeously, he exercised his right and by doing so he infringed upon the rights of the victims. Well, he had that right and he did it and the law allows it but the law also says if are vested rights and just like the police acquired a vested right when the Section 32 letter was not served timeously, so the victims acquire a vested right - I now have the right to sue civilly because you, Mr Applicant, have not complied with the provisions of the Act, you are late and you are now not entitled to be immune from civil and criminal litigation.

At page 98 of the Malutsi judgement, Chief Justice Corbett said at (h) "Having given the matter anxious consideration" in other words weighing up the respective rights, competing rights, "I have come to the conclusion that there is insufficient indication of a legislative intent to warrant interference with a vested right of the Defendant, Police Force, in his favour the expiry term provided by Section 32 has run it's course. I therefore opt for the restricted interpretation of Section 12.2 (i) of the proclamation."

It follows that the appeal must succeed. Our submission is that there is insufficient indication in the statute to warrant an extensive interpretation and the reason that we say that is because we must go back to Section 18 which says that you shall submit an application in the prescribed form and it's coupled to a time period, that shall governs both and they are linked. If one takes out - if one reads it - shall within twelve months, if one reads that as the prescribe period, submit such an application to the Commission in the prescribed form. If one looks at the way that sentence has been constructed, the two commas are inserted to provide for an extended period and extended prescribed period but if that extended prescribed period was not there - let's say that the Act had from the beginning set the 30th September as the cut off point, the legislation would read that any person shall on or before 30 September 1997 submit such an application to the Commission in the prescribed form - it's an imperative and then there's Section 21 (a) as well as Section 3 (i) (b) which says that the requirements of the Act are a requirement for amnesty. The question which is raised is then why, why is that there. One then has to look at Section 19 and the purpose of having an application under oath in the prescribed form is to enable the Committee to then conduct it's investigations with evidence now before the Committee. The Committee could even grant amnesty on the basis of certain applications without hearing oral evidence because there's written evidence and certain investigations can be undertaken.

There's a case that, that I wish to refer to, which is not in my heads of argument. It's the case of S. Bothma, B-o-t-h-m-a and Son Transport (Pty) Ltd. versus the President of the Industrial Court and others, 1988/3SA/319 Transvaal. The judgement of Judge Myburgh, the Judge Myburgh who is the present President of the Labour Appeal Court. It was a labour case, it dealt with an application for interim relief in terms of Section 43.4 of the old Labour Relations Act. Section 43 (ii) of that Act said that any party to dispute who applies under Section 35 for the establishment of a conciliation board in respect of a dispute may, the use of the word there was "may", at the same time or within seven days apply, here it was to the Minister but it came to the Industrial Court for an order in terms of 43.4. The regulations there for Conciliation Boards that there was a prescribed form and it had to be submitted and the dates had to be clear and that form had to be signed. Reference was made in that case or by counsel for the applicant to the Maharaj decision, the precise passage that my learned friend relies upon in his heads of argument, but the facts of the case were very simply that the application for the Conciliation Board was made on the 3rd September - I beg your pardon - was made on the 4th September and the application for relief in terms of Section 43 was made on the 3rd September, in other words, one day before instead of at the same time or within seven days. Counsel for the applicant argued that well within seven days could mean within seven days either way and the court said no, it can't, even though there's just one day difference, the legislator has said you do the one and then if you want to do the other, it comes afterwards. That was how the "may" was interpreted and the application was struck out because it did not comply with the provisions of Section 43 and the reason for that was you have to apply for a Conciliation Board first, you have to get the conciliatory machinery in progress and once you do that you can then apply to the Industrial Court for relief and even though, in that particular case, there was only one days difference, the court said no, you've done it incorrectly and the legislature then implied the - the sanction of the legislature is if you don't do it properly, you forfeit your relief in terms of Section 43 (iv) of the Act.

MR LAX: I've heard you on that but just maybe you can help me then. This is a real situation that faced the Commission -on the last day of the cut off date and several thousand applications come in, many of which are defective. On the interpretation you're wanting us to apply they're all out because there is no other time for them to be rectified, the cut off date is passed.

MR BERGER: That's why I argued earlier that substantial compliance is for the purposes of this form and many other forms which have preceded it in the case law, substantial compliance is sufficient, but if one has look at paragraph 13 our heads of argument, we set out the major points which were not canvassed in the applications such as the Acts in respect of which amnesty was sought.

MR LAX: You see, my point is simply this, how could Section 19 (i) be of any use to anybody, okay, if we have to adopt the interpretation you have just asked me to adopt. In other words, unless those forms were substantially completed, how could Section 19 (i) (b) be contemplated at all then because unless they were substantially completed and substantially complied with, why would there have been the need then for further completion, further directions, even further particulars? This is before Section 23, okay? Now this is before the subsequent, I mean, 23 okay?

MR BERGER: Yes.

MR LAX: It's before that other process of checking, as you put it, full disclosure.

MR BERGER: Well, if we take the applications which were ultimately submitted, the fresh applications in this case, they were substantially completed and yet the Committee still requested a whole host of further particulars which were relevant for the purposes of this application.

MR LAX: But that was not in respect of Section 19 (i), those further particulars. Those further particulars were in terms of the subsequent section, I'll give you the exact reference if you like. Sorry, I've just lost it, I'll give it to you immediately.

MR BRINK: It's not 19.3, (a)2?

MR LAX: That's correct, sorry, it's 19.3 not 20.3, I beg your pardon. So the Act contemplates the situation where first the forms are submitted, then a number of things can happen in terms of having them completed including further particulars. Once that process is finished, then it's before the Committee so to speak and then the Committee may investigate the matter and in that investigation process, then ask further questions and further particulars, are you with me?

MR BERGER: Yes I am with you.

MR LAX: So, now on what you've postulated to us, 19 (i) then becomes superfluous and that's what I'm asking you, is how can - could you address us on why would they have 19 (i) if it didn't relate to receipt of defective applications?

MR BERGER: Mr Lax and the Committee, 19.3 (a) 2 is not properly construed the Committee's request for further particulars. The Committee's request for further particulars is indeed in terms of Section 19 (i) and I'll explain why. My learned friend, Mr Brink, with respect is not correct because 19.2 says once you've got the application then the Committee can make certain enquiries then 3 says "After such an investigation, the Committee may inform the applicant that the application judged on the particulars or further particulars contained in the applications, or provided by the applicant or revealed as a result of enquiries made by the Committee, if any, does not relate to an Act associated with a political objective. So the Committee then writes back to the applicant and says "Your application, together with the further particulars which you have supplied to us, does not reveal an act associated with a political objective." Then the applicant is afforded a further opportunity to make a further submission as to why the act should be regarded as an act associated with a political objective and then, and 3 - then the Committee decides whether the application, judged on the particulars referred to in sub-paragraph 1, that's the application plus the further particulars, and in such further submission relates to an act associated with a political objective and if it is satisfied that the application does not relate to such an act in the absence of the applicant and without holding a hearing refused the application and informed the applicant accordingly. So it's, with respect not, not the further particulars, it's the Committee forming a view which was not done in this case as far as I know, that the applications as submitted do not disclose acts associated with a political objective and then say "you've now got one further opportunity to convince us that it is an act associated with a political objective" and that's why it's so important that the original application be under oath and be substantially complete to the extent that the applicant must say "these are the acts for which I seek amnesty - this is what I did" and the applicants don't do that and they definitely don't do it under oath, all they do is give a case number. If one managed to relate that back to the Boipatong criminal trial because no court was given at that state, but even if one says alright they were referring to the Boipatong trial, they are asked in that document "which charges were you convicted of?" - "details to follow" and if one reads the 3000 pages of the Boipatong record, there's a complete denial. So, at this stage, one doesn't know what act the applicants are applying for amnesty for. Beyond that, one doesn't know what the political objective is because if one reads the Boipatong criminal trial there is no mention at all because of the denial, there is no mention of a political objective. So the very basic fundamentals of an Amnesty Application are missing and that's why we submit that there hasn't been any compliance, not even substantial compliance and we set out in paragraphs 13.1 through to 13.6 what we submit are the fundamental particulars which ought to be in an amnesty application. It's correct that, that then shuts the door on the applicants but this is a situation entirely of the applicants own making. If you will just bear with me for a moment.

Chairperson and Members of the Committee, I have tried to deal with as many points as possible which might come up in the argument of my learned friend but at this point I'll rest and save the rest for reply.

CHAIRPERSON: Thank you. Yes, Mr Strydom?

MR STRYDOM: Thank you, Chairperson. In my heads of argument, I started by setting out the facts. After listening to my learned friend's argument, there's no real dispute as far as these facts are concerned so I'm not going to repeat them. I would like to start my argument on page 8 of my heads of argument, but before I deal with that, my learned friend made the submission that the applications that were filed during February 1998 were fresh applications. Now I cannot agree with submission. The fact of the matter, applications were made before the original cut off date being the 10th May 1997 and Amnesty numbers were given to these applications so he is not correct. The fact that they were not complete does not mean they weren't applications. They were applications and therefore what followed thereafter was actually further particulars, more detailed applications and although the standard form or the Form 1 was used when further details were given, that does not mean that what was provided was a fresh application. The point I'm making is that there were applications before the TRC at that stage already.

Mr Chairman, in my heads of argument, I firstly argue on the basis of Section 18 standing on it's own and what I'm saying is that if one looks at Section 18, there is a reference to "shall". Now immediately there's a reference in an Act to the word "shall" the initial idea is that that is a preemptory reference. My submission is that, not in all cases, where the word "shall' is being used can it be argued that it's preemptory, my submission is that in fact in this instance, that word "shall" refers more to the time period and the cut off date and I would submit that the cut off date and the time period is definitely preemptory to the extent that even substantial compliance would not be sufficient. So an application should be launched before the cut off date but on interpretation I would submit that the second portion, although the word "shall" may have reference to submit such an application to the Commission in the prescribed form, that that is merely a directory and not preemptory and ....[intervention]

CHAIRPERSON: Well, let me ask you this, what Section 18 does is to say that the Minister - well, that the application shall be submitted - shall submit an application to the - in the prescribed form. Does that section give the Minister the power to impose additional requirements for an Application for Amnesty?

MR STRYDOM: I would submit no, it doesn't give a Minister additional powers, that's my submission but let me just have a look at the section again.

CHAIRPERSON: In other words, apart from those that are in there, because all that the Act does, it simply says a person who wishes to apply for amnesty shall submit an application to the Amnesty Committee in the prescribed form.

MR STRYDOM: It does not legislate further powers to the Minister.

CHAIRPERSON: It does not give the Minister the powers, for example to say "in your application" one, it must be in capital letters, if it is not in capital letters then you're out of the process.

MR STRYDOM: It doesn't, but it does give the Minister powers...[intervention]

CHAIRPERSON: If it is not deposed to before a Commissioner of Oaths then you're out of the process, requirements which are not contained in this section itself.

MR STRYDOM: No, it doesn't give any other powers but to prescribe to prescribed form. Now obviously that would be open to argument, what the meaning of prescribed form is if the Minister will have the powers to then have certain things added in this form but my submission is that if these powers would have been so wide or the intention was to make it so wide then to add under oath and things like that in block letters, that would have been in the Act itself, so those powers are actually limited and the powers only to prescribe the form, the kind of form, that would be the submission.

What I was saying is that the latter portion of the section is directory and the reason why I'm saying that is - or shall I just go one step back - now the test is to determine if a certain section is preemptory or directory, one would have to look at the intention of the legislature who will have to look at the Act as a whole and the purpose of the Act wants to serve and all other things like that and if one does that, one will have to have regard to Section 19 and Section 19 creates the procedure whereby any application, I place emphasis on "any" application may be returned to the applicant and give such direction in respect of the completion and submission of the application as may be necessary or request the applicant to provide such further particulars as it may deem necessary. Now the purpose of that section is specifically to deal with applications that has not adhered strictly to the prescribed form, that is my submission and therefore, I say that that second part of Section 18 is only directory and is not preemptory.

CHAIRPERSON: Let us assume that we are with your proposition that is what the section stands for. Now let's assume the Amnesty receives a letter, handwritten letter, you know by an applicant who is in prison who says, you know, I want to apply for amnesty in respect of a,b,c and d and signs the letter to the Committee. Is it your submission that the Amnesty Committee will receive that - that will be an application within the meaning of the Act.

MR STRYDOM: I would say yes.

CHAIRPERSON: Okay, now - and then you're saying that then the Act says that you, in terms of Section 19 (i), the TRC would then give directions to this applicant and say here is the form, complete this form and then submit it again?

MR STRYDOM: Yes.

CHAIRPERSON: Now, what is to become of that application, the first letter?

MR STRYDOM: The first letter will obviously stand but eventually if, say for instance after the Committee asks for further particulars and asks for a proper form to be completed, nothing comes of that and then obviously the argument would be that requirements was not met because then no further steps were taken but in this instance, the fact of the matter in this case, applications were made and the form was used although not completed form and not properly signed and deposed to, but then subsequently and in terms of Section 19, further particulars and more details were asked and it was submitted and therefore I would say that there's been compliance with this section, Section 19 and therefore I would say there's compliance with Section 20 in that the application compliance with the requirements of this Act because Section 21 (a) would obviously also refer to Section 19 and if there's compliance to Section 19, which I submit in this case there has been, then there's been compliance with the Act.

I also make the submissions in my heads ...[intervention]

CHAIRPERSON: Just before you go any further, when this section says the application - the Committee may return the application to the applicant, what is the effect of returning the application? Is the effect of returning the application that there is no application before the Committee once it is returned?

MR STRYDOM: No, I won't go along with that - may return the application - does not mean that, obviously a copy would be kept by the Committee.

CHAIRPERSON: Well it doesn't say return the copy of the application it says return the application, I suppose what was submitted to the Committee is then returned to the applicant so once it is - the act of returning, what does that mean? Does it mean there is no application now until the directions given by the TRC are in regard to the completion and submission has been complied with?

MR STRYDOM: I would go along with that because I will say what I said previously, if that application is returned and nothing is done thereafter, obviously that would mean that there is no application before the Committee.

CHAIRPERSON: Well isn't therefore the proposition then correct that until such time that once it is returned, there is no application before the Amnesty Committee? There will only be an application once it's complied with the direction and if this direction, as in this case, were only complied in 1998, that's when the application was made which was hopelessly out of time?

MR STRYDOM: My submission is if there's an initial application even though it's defective, there's an application and then that application has been accepted by the Committee, but the Committee cannot follow up on that but to act in terms of Section 19 (i), so if there's an action in terms of 19 (i) that means that the application has provisionally prima facie been accepted and then there's certain acts that follow after that and this is what happened in this matter.

CHAIRPERSON: I was just concerned about what meaning one has to attach to the return. If you return the application does it mean that there's no longer any application until the direction has been complied with?

MR STRYDOM: The fact of the matter - initially there was an application but a defective application but my submission is there is still a defective application, that doesn't fall away, the mere fact that that specific document is now being returned doesn't mean there's not a defective application - that remains in place - but after return and after the other steps have been taken, after the further particulars have been provided and at the form completed properly, then it becomes an application in terms of Section 21 (a) which meets the requirements of the Act and my submission is that is what happened here.

CHAIRPERSON: Because I heard you say that until the properly completed application comes to hand, there's no application and if that's the argument then there's no application.

MR STRYDOM: No, I still maintain that there's an application but a defective application.

CHAIRPERSON: I understand what you maintain but I want your submission. Does it matter that the legislature here does not say the - does not talk of rejecting the application but rather it talks of retaining the application?

MR STRYDOM: It makes a difference because if there's an outright rejection and the applicant has run out of time that would mean that there would be no application but a return means that there has been an application but the fact of the matter is also in our instance, these applications weren't returned so the original applications were kept and what was asked is just further particulars and completion on that applications already in the possession of the TRC and in regard of which applications numbers were allocated already. In fact, if I can refer to the letter next to my heads of argument, there was already - there must have been talk about a hearing already as early as the 15th July 1997 because there was already at that stage talk about that hearing should take place on the 11th August 1997 before the cut off date so the Committee at that stage would have accepted those applications albeit not complete applications, but those applications were in fact accepted at that stage and then subsequent to that there was some questions asked in terms of Section 19 (i).

CHAIRPERSON: Well, yes.

MR STRYDOM: My further submission is that even if Section 18 is left aside for the moment and one interprets ...

CHAIRPERSON: Yes, proceed?

MR STRYDOM: My further submission is that on Section 19 standing on it's own and then purely on interpretation issue, one must read any application for amnesty to also mean any - meaning also defective applications and there's no time period or limit to, connected to Section 19. So the fact of the matter is that any application may be returned or further particulars can be asked or directions given in respect of completion etc and this is exactly what happened, that "any" cannot only refer to applications made on the prescribed form and as I've put in my heads, for that matter, applications assigned and attested to on the prescribed form. Otherwise one would have expected the legislator to add here "upon receipt of any application in terms of Section 18" or "upon receipt of the application in the prescribed form for amnesty the Committee may return" but reference there is to any application. If an Act is interpreted, each word must get..[intervention]

CHAIRPERSON: The word application is not defined in the Act, is it?

MR STRYDOM: No, the word application is not defined in the Act as far as I'm aware and the rule of interpretation is quit clear that each word must be given it's ordinary grammatical meaning and "any" as I stated in my heads is a wide term and means exactly what it says, it means any.

There are certain circumstances under which the grammatical meaning cannot be given to a word and I can think of possibilities. Say for instance you have ambiguity or some absurdity, then obviously that grammatical meaning cannot be given to that word but in this instance that cannot be argued, any application is not unclear, it's very precise and clear and therefore I would submit that Section 19 (i) as I can call it that, saves the day for the applicants.

CHAIRPERSON: Isn't the key question here, I mean we've been sitting here listening to both of you argue, but isn't the key question here this - when the TRC receives an application from an applicant which is defective in one way or another, does the TRC have the power under the Act to call upon the applicant and say "we've received your application, it is defective in these respects, would you please remedy these defects" isn't that what we're here about?

MR STRYDOM: Well, that's exactly what 19 (i) says.

CHAIRPERSON: So is your submission that the Section 19 was designed to do precisely just that?

MR STRYDOM: That is my argument.

CHAIRPERSON: Yes.

MR STRYDOM: One must also look at the background, we will have lots of people, lay people that want to apply for amnesty and certainly, I think that section was legislated exactly for that purpose, to assist people that put applications before the Amnesty Committee, that is defective, maybe they don't know exactly how to fill in that form, how to go about it and maybe they don't even know the meaning of deponent or know how to swear before a Commissioner of Oaths and they get other people to fill in their documents and these documents are sent. So exactly for that purpose, that section was added, that's my submission.

Mr Chairman, then I set out my argument in more detail in my heads of argument but I think I will have to say something about the prejudice I refer to on page 16. I make the submission "there is no prejudice to anybody if the applications are accepted in an incomplete form"

CHAIRPERSON: When it comes to prejudice, here is the problem. If the Committee rules that the applications comply with the Act, the prejudice to the victims is that, as I understood the submission, the applicants are at least one third down the road to being granted amnesty. Still the question would still be decided whether they've made full disclosure and whether they had the necessary political motive, that's the prejudice on the one side. Now on the other side, if the applications are refused at this stage, that's the end of the matter for the applicants, that's the prejudice.

MR STRYDOM: That's the prejudice for the applicants.

CHAIRPERSON: So is it your submission that if one weighs the prejudice here, the one that the applicants are likely to suffer ..[inaudible] those, the prejudice that the victims would suffer if the application is to be granted?

MR STRYDOM: So I would submit that the prejudices are in fact even with the balance so there cannot be a restrictive application from the viewpoint of the applicants but similarly, the same can be said from the victims, so one will have to interpret the Act as it stands and without giving it a strict interpretation or otherwise and my submission then is quite clear what the intention of the legislature was.

We don't even have to deal with the intention of legislature if do strict interpretation of the Act and the Act is clear. Only thereafter, if it's unclear, then one will have to look at the intention of the legislature. The intention of the legislature only comes into play when Section 18 is investigated to establish if the clauses there are preemptory or directory but if one looks at Section 19 is clear and then in terms of interpretation rules one does not even look at the intention of the legislature. Only if it's unclear, one would look at the intention of the legislature.

Mr Chairman, I should also deal with the application of Mr Khubeka. Now Mr Khubeka is actually very much in the same situation as the other applicants because Mr Khubeka's application, original if I can call it defective application, was also filed initially. The Committee did not ask further particulars and further information in regard to his application but his application was also made at that stage. My submission is that even at this late hour, if the Committee asks further particulars, that still can be granted but the fact of the matter - he made an application just like the other people initially. There's some unfortunate situation because what in fact happened was that there was an indication that he made and he still maintains, I had another discussion with him, that in fact filled in a proper form, he gives me the name of the person that works for the TRC we gave this form to but up to now this document cannot be located but the fact of the matter is and I want to argue that he can still rely upon the original application, albeit defective, but that still can be cured by providing further particulars if asked to give further particulars.

CHAIRPERSON: Well, I was under the impression and that is how I have always understood your argument and that is when these initial applications were submitted on the 10th or the 9th May 1997, there were directions, whether you construe them a directions or requests or whatever, that further information had to be furnished and that was in relation to all those individuals who were named in that covering letter which includes Mr Khubeka.

MR STRYDOM: I just want to check, as far as my memory serves me, we did not receive a further request in regard to Mr Khubeka and the reason for that is we at that stage stopped acting for Mr Khubeka because Mr Khubeka, on his own accord, went ahead and applied for ..[intervention]

CHAIRPERSON: No, no, I mean the original one, after the - you see the applications were preceded by a discussion between the attorney, the erstwhile attorneys of the applicants and -Mr Mpshe I think it is.

MR STRYDOM: Yes.

CHAIRPERSON: Okay, that's when the letter of the - I think it's some time in November - it was.

MR STRYDOM: Mr Chairman, you're right.

CHAIRPERSON: Yes, which called upon the - which reminded the applicants that information which they had undertaken to furnish as at that date, not yet been furnished and there was a request that the processing of this application is much more difficult.

MR STRYDOM: Yes, that is indeed so, I think the letter is added to my - next to my heads of argument and Mr Khubeka's name was included there but unfortunately at that stage, the legal team was under the impression that he provided another application and he didn't want this legal team to act for him any further. So it's an unfortunate situation that those particulars were not granted but I still say that that situation can be cured by granting that information at this late hour.

CHAIRPERSON: Well, what is the position now? Is the position that Mr Khubeka has subsequently submitted an application, duly completed?

MR STRYDOM: According to what he tell me ...[intervention]

CHAIRPERSON: Are those your instruction?

MR STRYDOM: Those are my instructions, but unfortunately, that application cannot be located and we can even..[intervention]

CHAIRPERSON: Well has someone looked for it?

MR STRYDOM: I asked Mr Wessel Janse van Rensburg to look for it but my information is that he cannot find it.

CHAIRPERSON: But where is it?

MR STRYDOM: Well, Mr Khubeka did not keep a copy but he had given it to a representative of the TRC.

MR BRINK: Mr Chairman, my information is that Mr Khubeka in the first instance submitted and HRV statement, he did also submit a statement, an "application" incomplete but although it is said that he and I have no reason to doubt what he says being the truth, no further Amnesty Application completed form has been located in the offices in Cape Town but I will certainly investigate when I get back.

CHAIRPERSON: Okay. In view of the uncertainty as to whether or not Mr Khubeka did submit an application, I do not know whether it would be proper to deal with his application at this stage. Now, shouldn't we stand his application down and then perhaps investigate whether there is another application that he completed?

MR STRYDOM: I think I should argue on the basis that that other application cannot be located and if that cannot be located the fact of the matter is that he initially applied with the other people, the other applicants and that defective application and subsequently further particulars and other documents ...[intervention]

CHAIRPERSON: Which called upon to ..[inaudible] and has not [inaudible] so what do we do?

MR STRYDOM: I would submit that that's not a bother, it still can be provided.

CHAIRPERSON: That's why I was saying to you that shouldn't his application stand down so that you can deal with those difficulties?

MR STRYDOM: I accept that.

CHAIRPERSON: Yes.

MR STRYDOM: The other point I want to make, it's all contained in my heads of argument - the crux of the matter is that I rely on the interpretation of Section 19 (i) so that's basically my argument on behalf of the applicants.

CHAIRPERSON: Mr Mbatha?

MR STRYDOM: Mr Mbatha creates somewhat of a problem, he cannot be located and I ...[intervention]

CHAIRPERSON: Mr Mbatha cannot be located?

MR STRYDOM: He is in Natal somewhere that's the only information I have, I don't know where in Natal.

CHAIRPERSON: So he's not even before the Committee?

MR STRYDOM: He's not here, he hasn't been here since the beginning of the hearings, he's apparently critically ill.

CHAIRPERSON: Yes, well shouldn't we then strike his application off the roll?

MR STRYDOM: I would ask that that also stand over until the next hearing.

CHAIRPERSON: Well, if he's not here we have no idea whether he will be coming to the Committee at all in future.

MR STRYDOM: Well the situation may be that ...[intervention]

CHAIRPERSON: Well if application is struck off the roll, the matter can always be reinstated as and when he becomes available.

MR STRYDOM: Well in that situation, yes, I thought finally struck off the roll means a final situation. If it's not a final - if he's just struck off the roll temporarily.

CHAIRPERSON: What it is that it is removed from the roll, it's not that it is withdrawn, it is just removed.

MR STRYDOM: In court terms struck off - if that's the situation I can go ahead ...[intervention]

CHAIRPERSON: Well he can be reinstated, both of them require further investigation in so far as we're concerned. Mr Brink, what is your attitude?

MR BRINK: Yes, I have no objecting to that but it seems to me applicants will not be heard today, none of the present applicants and in that event my suggestion would be in support of Mr Stydom's original submission. If those matters just stand over till the next time, if they're not here, things haven't been resolved they can get struck off the roll then, that's my suggestion.

CHAIRPERSON: Well Mr Khubeka is here?

MR STRYDOM: He is in fact here.

CHAIRPERSON: Okay, Mr Berger is he here?

MR BERGER: Yes.

CHAIRPERSON: Okay, you see the difficulty is with Mr Mbatha who is not here. So why should we have before us his application if he's not before us here? Mr Berger, what do you say with regard to those two applications?

MR BERGER: Chairperson, I have no feeling either way on Mr Khubeka - Mr Mbatha that is.

CHAIRPERSON: Yes.

MR BERGER: As far as Mr Khubeka is concerned, his application isn't before the Committee either. As I understood the position from last week, the understanding was that he wasn't before the Committee. There are no papers of his before the Committee, that's certain.

MR STRYDOM: I just - in fact one of the documents faxed to us as an example of the defective applications initially filed is one in relation to Mr Khubeka. I have it in my possession, in fact it's a full document, six page document on behalf of Mr Khubeka, so I have such a document.

MR BERGER: One of the defective applications, that is what my learned friend is referring to?

MR LAX: Correct.

MR BERGER: Well I'm prepared to argue on that basis.

CHAIRPERSON: What I wanted to find out is whether, shouldn't these matters stand over because of these problems?

MR BERGER: Well Mr Khubeka's application can be dealt with together with the other applicants because we are concerned with the original defective applications and we are told that he made one.

CHAIRPERSON: But he, according to Mr Strydom's instructions, he completed an application subsequently.

MR BERGER: No, Mr Strydom is not saying that.

MR LAX: He is.

CHAIRPERSON: He's saying that.

MR STRYDOM: In fact, he tells me and it's beared out by the fact that in that other statement of his to report a gross violation he in fact said that "I've already applied for amnesty but I'm not sure if the documents are properly filled in because I didn't have the knowledge" or something like that but it was said.

CHAIRPERSON: Very well, yes, finish off your argument. Do you have any further submission to make?

MR STRYDOM: No further submission.

CHAIRPERSON: Yes, alright. It doesn't effect you does it?

MS PRETORIUS: It doesn't effect me, Chairperson.

CHAIRPERSON: It doesn't effect you. Mr Malindi?

MR MALINDI: Chairperson I shall save myself with the argument presented by Mr Berger and I have nothing to add.

CHAIRPERSON: Mr Brink?

MR BRINK: I have no submissions to make.

CHAIRPERSON: Do you have any reply?

MR BERGER: Chairperson, the first point that was raised that I want to deal with is that Section 18 doesn't give the Minister the power to set conditions. With respect, that is not correct, if one has a look at the definition of prescribed in the Act it says prescribed means prescribed by regulation under Section 40 and if one then turns to Section 40, it's the President, the President may make regulations prescribing anything required to be prescribed for the proper application of this Act. The power is given to the President to prescribe the form and whatever form the President prescribes is given the power of statute and that is the form that has to be completed, that Section 18 says "you shall submit an application in the prescribed form and whatever conditions are contained in that prescribed form, you shall comply with." That's what the regulations are there for, gives the President the power to legislate. Delegated legislation I might add.

My learned friend said that if there was - if there's no substantial compliance for the cut off date then the applications are not good enough and I agree with my learned friend on that, that is quite correct. If there is no substantial compliance before the cut off date then the applications are defective and therefore invalid, that is quite correct.

CHAIRPERSON: And he went further and said the TRC has the power under Section 19 to call upon the applicant to rectify the difference.

MR BERGER: And we know that the TRC did not call upon the applicants to remedy the defects until after they had submitted fresh applications - in fact we know that the TRC never called upon the applicants to remedy the defect. So as at 30 September 1997, the defects had not been remedied, that much is common cause, so therefore it must follow, on my learned friends argument, that as at 30 September 1997 those applications were invalid.

My learned friend says that a letter from prison is an application within the meaning of the Act. That, with respect, cannot possibly be correct because if that is so then one must ignore the provisions of Section 18 with regard to the prescribed form.

My learned friend said that Section 19 (i) saves the day for the applicant. I am prepared to accept for the purposes of this argument that any application includes the applications that were defective. Section 19 (i) says that the Committee may return the application to the applicant and give such directions in respect of the completion and submission of the application. Clearly, the clear meaning of those words is - you haven't completed your application properly, we are returning your application to you so that you can complete it properly and then submit it in terms of Section 19 (i) and submission of the application. That submission and the submission in Section 18 must be in the prescribed form or request the applicant to provide such further particulars. So Section 19 (i) also makes provision for further particulars but that is something after a valid application has been submitted. If a valid application is not submitted, it gets returned to the applicant so that he can resubmit it. It was pointed out to the applicants that their applications were defective - in fact it didn't even have to be pointed out to the applicants that their applications were defective, they knew it and that's why they said details to follow at a later stage and when they submitted the further details, it was done in the form of a fresh application. Section 19 (i) in fact is totally against the applicants, on a proper reading of Section 19 (i) it doesn't save the day at all, in fact I would submit that the returning of the application to the applicant can mean only one thing, that the application is defective and it doesn't become a proper application until it is resubmitted in accordance with the requirements of Section 18 and to say that Section 19 (i) - the requirements of Section 19 (i) have been complied with and therefore Section 21 (a) has been satisfied, is with respect, losing sight of Section 18. Section 18 is also a requirement of the Act - it too must be complied with. Nothing was done in respect of the defective applications until after the cut off date, therefore at that date there were no proper applications before the Committee. Whether or not the Committee accepted the applications, there would be argument about waiver. With respect, whether or not the application is valid is a decision which must be taken by the Committee not by Advocate Mpshe, it's the Committee now who takes the decision whether or not the applications are valid.

The fact that Section 19 doesn't expressly refer to Section 18 doesn't really take the matter any further. Section 18 says you must submit an application in the prescribed form, Section 19 then talks about applications which have been submitted.

If the ordinary grammatical meaning is given to the word "any" then the ordinary grammatical meaning can likewise be given to the word "shall".

Section 19 was designed to remedy defective applications, I'll accept that but then they must be remedied before 30 September 1997. If they are not remedied they remain defective and as at the cut off date invalid.

CHAIRPERSON: If the application is defective and is received on the last day is that the end of the matter?

MR BERGER: If it's not substantially - if there's no substantial...[intervention]

CHAIRPERSON: If it is defective.

MR BERGER: Defective?

CHAIRPERSON: Yes, if it is defective.

MR BERGER: Yes and defective means no substantial compliance. About illiterate people not being able to submit the applications, the applicants - I don't know whether they are illiterate - Mr Mthembu surely is not - but they had legal representation throughout, they've had legal representation since 1994.

Question of balancing prejudice and that prejudice is evenly balanced - with respect, this is not a question of balancing prejudice. The question is whether vested rights are being taken away. The applicants had their rights and they had the power to preserve their rights. Their own actions meant that they forfeit those rights. The victims have not had the power to preserve their rights, they rely on the provisions of the Act. Mr Khubeka's application can be supplemented now and he will then have a valid application before the Committee. With respect, that highlights the absurdity of the argument of saying that the applications can be - the defectiveness can be cured at any stage. The defectiveness cannot be cured at any stage - there must be valid applications as at per cut off date otherwise Mr Khubeka could come in ten years time and say I want to now give you my story and the Committee would be bound to hear him. That can't possibly be correct.

And finally, as far as the purpose and spirit of the Act is concerned, yes, the purpose of the Act is to get at the truth but the purpose of the Act is also to set limits so that there can be justice between the parties. The applicants had their rights, they forfeited them, the victims have their rights and they stand on those rights. We would ask that the applications be dismissed for want of compliance of Section 21 (a). Thank you.

CHAIRPERSON: We'll take the lunch adjournment now and we'll come back at two o'clock and give a ruling.

MR BRINK: Mr Chairman, these aren't submissions but to indicate what the practice has been in the Amnesty Committee. As you might be aware there have been scores and scores of applications, scores and scores of applications which have defective by virtue of the fact that they have either not been signed properly, in other words one assumes that an illiterate has merely put his mark or cross, where there has been no attestation by a Commissioner of Oaths. When those defective applications come in they are registered, they are given an AM number.

CHAIRPERSON: That is what has been done in the past, the question is whether, you know, does the Committee have the power to do that? I think that is the issue that we have to look at. It may well be that the practice has been followed in the past and it may well be that the practice was not consistent with the Act.

MR BRINK: No, I understand that, Mr Chairman, I merely raised it in the light of the remarks you made towards Mr Berger and that was all.

CHAIRPERSON: Yes, we'll give the ruling at two.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: On the 10th May 1997, the attorneys who were acting for the remaining fifteen applicants submitted applications on behalf of the remaining applicants. These applications were neither signed by the applicants nor attested to by the Commissioner of Oaths. Each application was accompanied by a covering letter in which it was stated inter alia that the applications are incomplete, that the applications relate to the charges in connection with the Boipatong Massacre and that the outstanding information would be furnished in due course. The reason for the incomplete nature of the application and the fact that they were not signed by the applicants was given as being that the attorneys had been unable to get hold of the applicants prior to the deadline for the submission of the applications for amnesty which at that stage stood at the 10th May 1997. The covering letter also referred to a conversation which the writer of that letter had with Advocate Mpshe in regard to what was to become of the applications. Although initially the first and the last pages of the applications were submitted by telefax transmission, the entire applications were subsequently sent by registered post. These applications were received by the TRC prior to the 30th September 1997. These applications were duly registered by the Amnesty Committee and were allocated numbers in accordance with the internal procedures of the Amnesty Committee. On about the 14th July 1997 a possible setting down of these cases was discussed and this was followed up by a letter of the 15th July 1997 by the Attorneys who were then acting for these applicants. In a letter of the 10th November 1997, the Executive Secretary of the Amnesty Committee reminded the applicants of their earlier undertaking to furnish the outstanding information. At the same time he advised the applicants that their applications had been identified as matters that were to be dealt with at a hearing and also pointed out that failure by the applicants to furnish the outstanding information was presenting difficulties to the Amnesty Committee in terms of processing these applications. Eventually the present attorneys for the applicants submitted the outstanding information on or about the 13th February 1998. This took the form of properly completed Form 1 duly attested before Commissioners of Oaths. No such further applications though were submitted on behalf of Khubeka and Mbatha. It is common cause that these further applications by the applicants were received well after the extended deadline of the 30th September 1997.

The question before this Committee is whether the applications by the fifteen applicants comply with the requirements of the Act. The matter is governed by Section 18 (i) read with Section 19 (i) of the promotion of National Unity and Reconciliation Act No. 34 of 1995 as amended. Now Section 18 (i) provides "any person who wishes to apply for amnesty in respect of any act or omission or offence on grounds that it is an act associated with a political objective shall within twelve months from the date of the proclamation referred to in Section 7 (iii) or such extended period as may be prescribed, submit such an application to the Commission in the prescribed form." The prescribed form referred to in Section 18, sub-section 1 was published in Government Gazette No. 16985 dated 9 February 1996 and it is referred to as Form 1. Form 1 requires inter alia that it must be completed in block letters, sworn to solemnly, affirmed before a Commissioner of Oaths and thereafter returned to the Amnesty Committee. It is common cause that at least by the 30th September 1997 applications on Form 1 had been submitted on behalf of the applicants. These applications were incomplete and had not been signed by the applicants themselves and had not been attested to before the Commissioner of Oaths.

The issue of substance is whether the applications which are now before this Committee complies with the requirements of the Act and this in turn depends upon the proper construction of Section 19, sub-section 1 of the Act. Now Section 19 (i) of the Act provides "upon receipt of any application for amnesty, the Committee may return the application to the applicant and give such directions in respect of the completion and submission of the application as may be necessary or request that the applicant to provide such further particulars as it may deem necessary.

Section 19 (i) appears to contemplate that the Amnesty Committee would receive not only incomplete applications for amnesty or improperly completed applications but applications which are not made on the prescribed form 1 or for that matter applications which may not have been signed by the applicants themselves.

The use of the word "any" and the provisions suggest that it refers to any application whatsoever. What the Act did was to empower and authorise the Amnesty Committee to call upon the applicant who has furnished a defective application to rectify that defect. We believe that the interpretation we are placing on Section 19 (i) is consistent with the policy of the Act. It must be remembered that one of the objectives of the Act is to uncover the gross human rights violations of the past. It seeks to help the survivors and the dependants of the tortured and the wounded, the maimed and the dead to discover what did in truth happen to their loved ones where and under what circumstances it happened and who was responsible. That truth which the victims so desperately seek is more likely to be forthcoming if the perpetrators of these gross human rights violations are encouraged to come forward and tell and disclose the whole truth upon the promise that if they do so, they will not be prosecuted. In dealing with these applications, that is what we have to bear in mind. In our view the Amnesty Committee was entitled upon receiving the applications by the applicants to call upon the applicants to remedy the defects in their initial applications by submitting the outstanding information which the applicants subsequently did by filing further applications which were properly completed and duly attested. The initial applications must be read together with the subsequent applications which the applicants submitted as supplemented by the further particulars and the further affidavits which the applicants submitted.

In the result, the Committee is satisfied that the application by Qambelani Buthelezi, Bhekinkosi Mkhize, Tebogo Magubane, Vincent Khanyile, Timothy Stals Mazibuko, Jack Mbele, Sonny Michael Mkwanazi, Moses Mthembu, Mplupeki Tshabangu, Sipho Buthelezi, Petrus Mdiniso, Mxoliseni Sibongeleni Mkhize and Richard Dlamini comply with the requirements of the Act.

In so far as the application by Mbatha is concerned, the applicant Mbatha is not before this Committee and therefore his application cannot be dealt with at these proceedings therefore his application is removed from the roll.

In regard to the application which was not before us but which we are told was made by Mr Khubeka, that application - there appears to be further investigations which are to be conducted in regard to that application and therefore it cannot be dealt with presently.

Mr Strydom, the application by Mr Khubeka was never enrolled was it?

MR STRYDOM: I didn't hear that, was never?

CHAIRPERSON: The application by Mr Khubeka, it was never enrolled was it?

MR STRYDOM: No, only the original document, the defective if I can so call application was sent through to the Amnesty Committee, Mpshe - I think a number has been allocated to that application as well.

CHAIRPERSON: No, I understand but is it before us?

MR STRYDOM: Not at this stage.

MR LAX: Perhaps a better way of putting it would be to say has it been set down for hearing here and the answer is no.

MR STRYDOM: No.

CHAIRPERSON: The application by Mr Khubeka cannot be considered at this stage until it is properly enrolled and properly investigated. The effect of this ruling is then that the applications by the applicants whose names have been referred to in this ruling will be heard commencing on the 11th August until the 14th August this year, the venue at which those applications will be heard will be announced in due course. On the 11th August the proceedings will commence at ...[intervention]

MR STRYDOM: I would suggest that being the first day that we make it a bit later to get everybody together and I would ask for ten o'clock?

CHAIRPERSON: Which one, nine or ten?

MR BERGER: Ten o'clock is fine Chairperson.

MR MALINDI: Ten o'clock is fine Chairperson?

CHAIRPERSON: Eight o'clock?

MS PRETORIUS: Ten o'clock will be fine, I think.

CHAIRPERSON: Yes, very well, the proceedings on the 11th August will then commence at ten o'clock. Before we rise ...[intervention]

MR BERGER: Chairperson, can I just ask that now that there is time before the 11th August that the applicants will give evidence in the order in which their names appear on the front sheet as from the 11th August, can we agree to that?

CHAIRPERSON: Okay, there's just one thing that I wanted to -you want the applicants to give the evidence in the?

MR BERGER: In the order in which their names appear.

CHAIRPERSON: Oh, in the application?

MR BERGER: Yes.

CHAIRPERSON: Okay. Mr Strydom, it seems to me that there's something to be said from what Mr Berger is saying. First of all it is quite clear that we are unlikely to finish in August and that because of, you know, my other commitments thereafter, we may not sit earlier than next year to finish the applications and perhaps it would give the legal representatives of the victims enough time to conduct whatever investigations and prepare and take whatever it takes to prepare if they were to be told timeously the order in which the remaining applicants will be called so that they can forecast their investigation and their preparation to that order rather than investigating an application which may not come up during August, which may come in some time at a later state.

MR STRYDOM: Chairperson, I undertake to give a list of the sequence and I will give it before the end of July so that the legal representatives ...[inaudible]

MR LAX: No, that's not acceptable, Mr Strydom.

CHAIRPERSON: Why can't you give that now?

MR STRYDOM: Well I can give it now that the - I can give at least say the first seven or I'll try to give the full list at this stage.

CHAIRPERSON: You said the first seven?

MR STRYDOM: I just thought maybe we'll just get to the first seven but I will give as far down as I can possibly do at this stage.

MR BERGER: Chairperson, can't we just agree that the applicants will give evidence in which their names appear and then there can be no confusion about that. My learned friend has ample opportunity to prepare those witnesses and we also have opportunity in which to conduct our investigations. The names are in a particular list, let's follow the list.

MR STRYDOM: Chairperson, the mere fact that they appear on a certain list does not mean I should call them to that, one should look at the Amnesty numbers, they differ as well.

CHAIRPERSON: Yes, but surely at some point, these applicants will give evidence. Why should it matter who comes first and who comes last. Why can't that information be made available?

MR STRYDOM: I will provide - today I will give my learned friend a list of how we want to call these people because we see it in an interest to call certain people before the other people in those interests of the applicants and I will provide a list in the sequence I will call them.

CHAIRPERSON: Okay, when are you going to do that by?

MR STRYDOM: I will do it before we leave today, I'll give you the list.

CHAIRPERSON: Before you leave today.

MR BERGER: That's fine, thank you.

CHAIRPERSON: And then there is the other matter of the map, the map which depicts Boipatong, Kwamadala Hostel and the aerial photographs.

MS PRETORIUS: Chairperson, at this stage the Defence Force has been contacted but we are trying to get hold of it. I will go personally to the High Court in Pretoria and have a look to find it. Apparently, it must be somewhere there so we will, between us we will see that we get it. There is also a map and an aerial photograph that all the representatives at the trial had which may also help. I will see how many copies of that I can get and provide to everybody.

CHAIRPERSON: Yes, okay and in the interests of progress I would urge the legal representatives to share the documents that each has in his or her possession which are intended to be used here and if there are any difficulties, please get in touch with the Committee so that we can give directions if necessary as to how to deal with whatever problems you may encounter in getting any documentation that you desire.

MS PRETORIUS: We'll see to that, Chairperson.

CHAIRPERSON: Yes.

MR BERGER: And we will too, yes. Chairperson, I'm not sure if the evidence leader has any resources at his disposal to locate those maps because I would have thought that those maps are probably in Bloemfontein.

CHAIRPERSON: With the record.

MR BERGER: As part of the appeal record, yes.

CHAIRPERSON: Yes, okay. I am told that the investigator, the TRC investigator who has been investigating this matter is Mr Wessels Janse van Rensburg. Perhaps if you could get -if the legal representative could liaise with him in order to see whether they can locate this document because I think he was helpful in locating the docket.

MR BERGER: Yes, I think that he is the correct person because the appeal court may very well be loathe to allow us or the applicants' legal representatives access to the appeal record.

CHAIRPERSON: Oh, yes I understand that. Well would you then liaise with him and if there are any difficulties let us know.

MR BRINK: Mr Chairman, if I can be of assistance. I undertake to have a word with Mr Janse van Rensburg when I see him in Cape Town this week and I will pass this on to him and ask him to liaise with the applicants' attorneys and the next of kin counsel to see if we can get that.

CHAIRPERSON: Okay, is there any other matter that needs to be?

MR BRINK: It may be of assistance if we could have the - the appeal I presume has been enrolled - if we can have the case number, the appeal record number, that will facilitate the reference.

CHAIRPERSON: Well I suppose those are the matters that will be taken up with Mr Janse van Rensburg. Is there any other matter?

MR BERGER: No.

MR STRYDOM: Chairperson, just one other matter, we haven't been provided with a list of the victims, the various legal representatives represent, I think at the next hearing we can just have such a list?

CHAIRPERSON: Yes indeed, yes indeed.

MR BERGER: Yes, we undertake at the next hearing to put all of that on record, the lists will be provided and so on.

CHAIRPERSON: Okay, very well.

Finally let me take this opportunity to thank each and every one of you for the patience that you have displayed whilst we had problems with getting off the ground, the delays that we've encountered and above all, your behaviour during the hearings. The legal representatives for their co-operation, the interpreters, the media, everyone who has made a contribution towards ensuring that these proceedings are a success and we express our gratitude to the authorities of the college for allowing us to use this hall as we engage in a desperate attempt to uncover the truth. Thank you very much and to my colleagues who have been very patient throughout these proceedings, thank you.

COMMITTEE ADJOURNS

The O’Malley Archives

Name: Victor Mthandeni Mthembu