CHAIRPERSON: Ms Patel, are you ready to proceed?

MS PATEL: We are thank you, Honourable Chairperson. The first matter on the roll for today is that of Linda Jeffrey Xaba, application number 3832/96.

MR WILLS: Thank you Mr Chairperson, Members of the Committee. I place myself on record, John Wills, Attorney of Pietermaritzburg, I’m acting for Mr Xaba and I’m ready to proceed.

MR SHAW: Mr Chairperson, my name is Shaw, I’m an attorney from the firm Elliott and Walker in Kokstad. I represent the objector, Mrs Baxter.

CHAIRPERSON: Is that the widow of the deceased?

MR SHAW: That is correct Mr Chairman.

CHAIRPERSON: Are you the applicant in this matter?

MR XABA: Yes.

CHAIRPERSON: Will you please stand. Are you prepared to take the oath?

MR XABA: Yes.

CHAIRPERSON: Will you please stand?

LINDA JEFFREY XABA: (sworn states)

CHAIRPERSON: Thank you, you may be seated. Mr Wills.

EXAMINATION BY MR WILLS: Thank you Mr Chairman. Just one small matter before I lead the evidence Mr Chairperson. To avoid any confusion we must make it clear that the applicant in keeping with his detailed affidavit, and specifically Page 14 of the record and Paragraph 23 of the affidavit, the applicant is not applying for amnesty in respect of the attempted robbery charge in respect of which he was convicted and sentenced to a period of eight years imprisonment. As he states in his affidavit, he at no stage attempted to rob or robbed anybody. So essentially we are applying for amnesty in respect of the murder and the illegal possession of firearms and ammunition.

CHAIRPERSON: Yes, that has been noted.

EXAMINATION BY MR WILLS: Mr Xaba you have completed various applications for amnesty. In particular you signed an application dated the 7th May 1997 at Pietermaritzburg prison. Do you confirm the contents of that application? That Mr Chairperson is the second form, that’s Page 427, 426 of the record. Further to that you made a detailed affidavit which appears at Pages 9 -15 of the record in which you set out briefly what your history is, what your involvement in the ANC and Umkhonto weSizwe was and you describe in some detail the incident involving the killing of Mr Bester. Do you confirm ...(intervention)

ADV DE JAGER: May I just come in here. I believe the deceased was Baxter, B A X T E R, according to the trial.

MR WILLS: No I’m sorry, this was a problem at the time but we confirm that that is indeed so, Mr Baxter. Do you confirm the details of this affidavit which you signed on the 27th day of February at Pietermaritzburg prison.

MR XABA: Yes.

MR WILLS: Very briefly Mr Xaba, I just want to also clear something up. I want to refer you to Page 5 of the record, paragraph 10(b) where you confirm or you note briefly what your political motivation or your political objective was in respect of killing Mr Baxter, and I quote - you've said Mr Bester but we're referring to Baxter.

Do you confirm that?

MR XABA: Yes I do.

MR WILLS: Secondly you say something which, you say that he was intimidating local population to prevent them from voting in the election. What do you say to that?

MR XABA: That’s a mistake that happened.

MR WILLS: Yes. Thank you, Mr Chairperson I didn’t want to lead him on that point but in consultation that has arisen that that in fact was a problem between myself who assisted in the completion of this form and the accused, and he retracts that statement. It was a misunderstanding.

You were convicted of this killing?

ADV DE JAGER: It’s not his handwriting?

MR WILLS: No. I can place on record that that is my handwriting.

You were convicted of this murder and possession of illegal firearms and ammunition, and you were also attempted, you were also convicted of attempted robbery, is that correct?

MR XABA: Yes.

MR WILLS: And you got a sentence, an effective sentence of 25 years imprisonment was handed down.

MR XABA: Yes.

MR WILLS: Now is it not so as it says, as it is stated in your affidavit, that you confirm the murder, you confirm your participation in the murder, and also in respect of the illegal possession of firearms and ammunition?

MR XABA: Yes I do confirm that.

MR WILLS: But you deny that at stage you attempted to rob the deceased.

MR XABA: I dispute that.

MR WILLS: Now I think your, the history of your involvement in this, in the ANC and in the MK is set out very briefly, you were quite a seriously trained MK person who was trained in Cuba and various parts of Africa.

MR XABA: Yes.

MR WILLS: And eventually after returning to South Africa you trained certain people in the Bulwer area in Natal?

MR XABA: Yes, that’s so.

MR WILLS: And because the police were looking for you, you went down to Mount Ayliff?

MR XABA: Yes.

MR WILLS: There you were confirmed to be an ANC member and you started taking an active role in the ANC and particularly in the voter education campaign?

MR XABA: Yes, that’s true.

MR WILLS: And this is where you encountered the problem in respect of the deceased.

MR XABA: Yes.

MR WILLS: Okay. Can you tell the Committee what that problem was?

CHAIRPERSON: If you can just start by telling us when was it that he went to Mount Ayliff.

MR WILLS: Certainly Mr Chairperson.

MR XABA: I went in 1993.

CHAIRPERSON: When?

MR XABA: I think it was towards the end of July or early in August.

CHAIRPERSON: Thank you.

MR WILLS: Can you answer my question as to what problem did you encounter?

MR XABA: Yes. As I was in Mount Ayliff we were campaigning the ANC vote and teaching about votes, that people must vote for ANC, mobilising that movement. People came to me in numbers to enquire about this voter education and they came to confronted me that all what I’ve told them it’s not the truth but Mr Baxter has already told them what vote is. In actual fact the vote has to be administered in a different way, the X must correspond, or must be put next to Mr de Klerk’s name, not ANC, nothing to do with ANC, and they said Mr Baxter told them that X means wrong, not right, so that Mr Mandela is the right person, he has to have a right tick next to his name and the X has to be right next to Mr de Klerk’s name.

And in that way they came approaching to me with this regard, and each time we conducted meetings people would raise such concerns. In that way we discussed it as a committee, Mount Ayliff committee, ANC committee that is, the branch committee in other words. As we discussed this matter we realised that here we are encountering a problem, and as a member of MK and a commander at the same time I took it upon myself that I will see that Mr Baxter’s problem gets solved. And one thing that I will not tolerate at all is that, because he is coming to harass and misinform the black community in that way.

CHAIRPERSON: Apart from misleading the people you say he came to harass the community, what do you mean by that?

MR XABA: I mean misleading and misinforming the community by saying harassing. All that led me to inform the Committee that I will not tolerate this, not any longer, I will solve the problem. I will take it upon myself to endeavour to solve the problem. The first thing that came into my mind in light of solving the problem I requested that we shall write a letter and send it to the Zonal Structure Chairman, that is, Mr Jakuja. We did not get any response thereof.

CHAIRPERSON: Yes, I’m sorry about that. Please, who wrote the letter, and to whom?

MR XABA: The committee wrote, the branch committee that is, wrote the letter and it was going to Mr Jakuja who was the Chairman of the Zonal Structure.

CHAIRPERSON: Hold it, hold it, I would like you to spell the names as you go along. Mr Jakuja. How do you spell that name?

MR XABA: J A K U J A, Jakuja.

CHAIRPERSON: And who was Mr Jakuja?

MR XABA: Jakuja is the surname. I don’t know his name.

CHAIRPERSON: Who was he? What position did he occupy?

MR XABA: He was the Chairman of ANC Zonal Structure.

CHAIRPERSON: And where was he situated?

MR XABA: He was situated in town, Mount Ayliff.

CHAIRPERSON: Yes. How was that letter delivered to him?

MR XABA: The committee took the letter to him, between the chairman and the organiser and the secretary, amongst them.

CHAIRPERSON: I’d like the names of the persons that delivered the letter.

MR XABA: Gwebani.

CHAIRPERSON: Spell that name. As you go along mentioning names for the first time will you spell them. So the letters were delivered to Mr Jakuja, by whom?

MR XABA: Z W E L I K H A N Y I L E, Gwebani, it’s G W E B A N I.

CHAIRPERSON: Yes, that’s the name of one person.

MR XABA: Yes, very true.

CHAIRPERSON: And who was he?

MR XABA: He was the organiser.

CHAIRPERSON: Who else?

MR XABA: Deni, D E N I. That was the name but the surname is D A N Y I Y E L I.

CHAIRPERSON: Who was he?

MR XABA: He was chairman of the branch committee.

CHAIRPERSON: Who else?

MR XABA: Vidio, V I D I O. That’s the name and the surname is G W E B A N I.

CHAIRPERSON: Yes, who was he?

MR XABA: He was Chairman of Youth League.

CHAIRPERSON: Thank you very much. Do carry on.

MR WILLS: I’m sorry, you mentioned the fact that the secretary of the branch was also involved here, is that correct?

MR XABA: Was involved what?

MR WILLS: Was involved with this delivery of the letter. In his earlier evidence.

MR XABA: Yes.

MR WILLS: And who was the secretary at that stage?

MR XABA: My apology. Vidio was the Chairman of the Youth League and the secretary and the mother body at the same time.

MR WILLS: And you indicated that you got no response to this letter, so what happened thereafter?

MR XABA: After that I took it upon myself that I will assault him and kill him, Mr Baxter that is.

MR WILLS: Now, you state in your affidavit that you weren’t instructed to do this from any MK source but as you’ve said in your evidence you took it upon yourself. Now does this conform to normal MK procedures? What I’m suggesting is, what I’m asking rather, is was it necessary for you to be ordered to conduct this assassination?

CHAIRPERSON: He said he took it upon himself to do so, which means that he wasn’t ordered by anybody.

MR WILLS: I understand that Mr Chairman. I’m enquiring as to what the policy was in MK in regard to these types of events.

MR XABA: There are principles with regard to the MK policy, that are governing the MK body, where you would have a commander with the rights to take a decision and act upon that decision if necessary. Then I applied such policies as a commander of Umkhonto.

MR WILLS: And then, after the incident ...(intervention)

CHAIRPERSON: That means if you were a commander of the MK at the time you had a right to do what?

MR XABA: Yes.

CHAIRPERSON: To take decisions?

MR XABA: Yes.

CHAIRPERSON: What else did you say?

MR XABA: To report also after I have taken and acted upon the decision.

CHAIRPERSON: Yes, do carry on.

MR WILLS: Thank you Mr Chairperson. Is it not so that you did in fact report what you had done, and if so to whom?

MR XABA: I did report that to the chief staff of Umkhonto in Umtata by the name of Sibusiso and another name is China. Shiner or China.

CHAIRPERSON: ...(indistinct) take all that down. You did report to China. What did you say his position was, what office did he occupy?

MR XABA: He was Chief of Staff for Umkhonto at the time in the Transkei region.

CHAIRPERSON: Yes, do carry on.

MR WILLS: Thank you Mr Chairperson.

In preparation for this hearing I consulted you in regard to an affidavit, and I’m referring to the affidavit that forms, well the printed version of it is at page 21 and 22 of the bundle Mr Chairperson, from a Zwelhanyile Amos Gwebani who was the organiser of the ANC at Mount Ayliff. Do you recall?

MR XABA: Yes I do.

MR WILLS: And in this affidavit Mr Gwebani states that this problem was raised at the meeting of the ANC branch at Mount Ayliff, the problem being that Mr Baxter was misleading people as regards how to vote, is that correct?

MR XABA: Yes.

MR WILLS: And Mr Gwebani also states that you indicated that you were going to solve the problem in terms of, sorry to quote, he says that you were going to come up with the solution as an MK member, you were going to solve the problem.

I’m quoting from the third-last paragraph in the affidavit on Page 22 Mr Chairperson.

Do you confirm that?

MR XABA: Yes I do.

MR WILLS: Now when did you inform this Committee of this decision in relation to the letter that you spoke of earlier, when you wrote to the Zonal Chairman?

MR XABA: I notified it right before I took the decision of killing Mr Baxter.

MR WILLS: I don’t think you’re understanding me. Let me try and make myself a little bit more clear. You say you wrote to the Zonal Chairman - sorry, you didn’t say that you wrote, you said that the committee communicated the problem by way of a letter to the Zonal Chairman?

MR XABA: Yes.

CHAIRPERSON: Just let’s get this clear. Was it by letter or was it verbally, was the communication to the Zonal Chairman done by letter?

MR WILLS: Mr Chairman I think he said that in his evidence and it’s also apparent from page, from his affidavit. If you’ll just bear with me, it was a letter, on Page 15, sorry paragraph 15 on Page 13 of the bundle.

CHAIRPERSON: Paragraph 13?

MR WILLS: No, paragraph 15 on Page 13.

CHAIRPERSON: ...(indistinct)

MR WILLS: I think Mr Chairperson, you cleared that up in your questioning where you were referring to him earlier, and I think he answered, with respect, about the Vidio Gwebani who was the Chairman of the Youth League and the Secretary, and then the Chairman this Deni Danyiyele and this other Gwebani. If you want me to canvass that again I’m fully prepared to do so.

CHAIRPERSON: I want to know whether he himself wrote the letter or what it somebody else?

INTERPRETER: The speaker’s microphone is not activated.

CHAIRPERSON: Who was that letter written by?

MR XABA: It was written by the committee.

CHAIRPERSON: Carry on.

MR WILLS: Now you say in your affidavit, and you’ve indicated in oral evidence, that you wrote this letter to the Zonal Chairperson, Jakuja, indicating what the problem was. Do you recall that?

MR XABA: Yes, I do recall that.

MR WILLS: And then we know from what you’ve confirmed in evidence, from the affidavit of Mr Gwebani, that you took a decision, you told the committee in a meeting that you were going to take action as an MK member. Do you recall that.

MR XABA: Yes, I do recall that.

MR WILLS: Now I want to know which was first, the letter or when you took the decision to take the solution as an MK member.

MR XABA: The decision I took, the first one that is, was to write the letter. I advised the committee to write the letter to this effect, and indeed it did so and the letter was sent. That’s the report that was given by the committee, that the letter was indeed sent, but we did not subsequently get a response. Soon after that ...(intervention)

ADV SIGODI: Just to get some clarity on this letter. You say you advised the committee to write a letter to Mr Jakuja?

MR XABA: Yes.

ADV SIGODI: What were to be the contents of that letter?

MR XABA: To report to - to give report to him and inform him about the activities of Mr Baxter amongst the ANC members of the community.

ADV DE JAGER: Did Mr Baxter belong to any political party?

MR XABA: He was a card-carrier of ANC.

CHAIRPERSON: Yes, carry on.

MR WILLS: Thank you, Mr Chairperson.

CHAIRPERSON: You said that you advised ...(indistinct)

INTERPRETER: The speaker’s microphone is not on.

CHAIRPERSON: ... Mr Jakuja, you have told us that. What happened after that?

MR XABA: The committee did write the letter.

CHAIRPERSON: And what response did you get from Mr Jakuja?

MR XABA: No response thereof.

CHAIRPERSON: Carry on. What happened next?

MR XABA: Then I took this decision that I will take my gun and go kill Mr Baxter. But even so, as the period when the letter was being sent to Mr Jakuja there were people who were coming to complain to me, approaching me with complaints, and I will see that there’s no response forthcoming and I took my gun and went to shoot him. And what had already started and we could see it evidently was the division amongst the community. There were people who were agreeing with him and saying that it makes sense what he said, that there would be an X next to, there should be an X put next to Mr de Klerk’s name. Others believed what I said, that no the opposite is true, put the X right next to Mr Nelson Mandela’s name.

So some people feared, in other words they were developing some fears out of this. Now I also thought that it’s possible there would be a fight that can break out of this amongst the people and because ANC’s my organisation and I fully support it, this disturbed me highly.

INTERPRETER: The interpreter didn’t get the last sentence.

MR XABA: I took the gun and went to shoot him. The way I did this, I went and waited for him along the road. In fact the morning which I killed him I took the ANC papers that I was going to use in this vote campaign from the ANC office at Mount Ayliff. Unfortunately the receptionist was not in the office when I got there.

I saw him suddenly driving his car, Mr Baxter that is, across the road and I then decided let me go back home and leave the leaflets, the pamphlets, the voter pamphlets, leave them at home and take the gun instead. And I went to wait for him along the roadside. As I was standing and on guard - it was not the first time I did that, I had done that occasionally in the past just sort of follow his itinerary or daily programme, and I did notice that he would pass on Monday, or drive on that road on Monday and Thursday, and the following week I would check on him if he will drive on Monday and I will realise that he will drive on that road the following day, on Tuesday.

Then that time I spotted him and I decided to go home and leave the leaflets and take the gun instead to await for him. I took with the gun five litres of milk. I stood by the road, far away from the houses, and I think the closest house would have been about a 100 metres from the road that is, and there was a hillock between the place where I was standing and that house which was 100 metres away, and as he was approaching I stopped the car and he discovered, he thought I was coming or buying milk.

He stopped, and I went to him, and when I got to him he said: oh are you already here? And I said, do you know me? Then he said, I’m not asking you that, all I’m asking is do you know me. Then I said to him, all I want is milk. Let me give you twenty rands and you will give me the change. I took the pint, milk pint and I gave it to, or milk bottle, to the person who was in the back and during that time I planned that I will use the time that he will be looking for some change to give to me and utilise that time fully.

He then concentrated on counting my change, or the money to give my change and I hit him right away. I don’t think it was more than five times that I shot at him. The first bullet I discharged from the gun he jumped and said, "Donner, you kaffir. I went on ahead, hitting him or shooting at him. When I reached the fourth time the person who was seated, or the boy who was seated at the back, the one who was selling the milk or rather filling the jugs with the milk, he fled instantly. I took a turn towards the front, I went towards the front of the car as I was leaving. I saw kids about eleven years old coming from school and upon realising that they will discover this incident or see this corpse lying down there, I then instructed them to go on and not via the car.

I went up the hill and I went back home. When I got home I found my auntie and I explained to my auntie that I’ve already shot the man who sells milk. She could not believe that because he was a most feared man in the community or in the area. I decided to stay at home that time and wait for the police to come fetch the corpse and take it with.

I think the police arrived at about four in the afternoon. There was a hippo of the Stability Unit that came in in a red bakkie and the white bakkie and a white kombi. They arrived at the scene of crime. About six they took the body with and I was at home then. And later on at night I fled and went to Umtata. That’s when I delivered my report to the Chief of Staff that this is what I’ve already executed. And I stayed in Umtata. Early in 1994 ...(intervention)

INTERPRETER: The interpreter has a problem, the system keeps cutting. I can barely hear the applicant and the speaker gets to be incoherent.

CHAIRPERSON: Sorry, take your time, speak a little slowly so that the interpreter can hear everything that you have to say. You were telling us that later that night you fled to Umtata and reported to the Chief of Staff about what you had done.

MR XABA: Yes.

CHAIRPERSON: Carry on. You said something about 1994, what was happening? You said early in 1994? What happened?

MR XABA: As I was in Umtata, I was running away trying to escape from the police, from being arrested, and I went to join the peace keeping force in Bloemfontein. I was being sent there by the MK. I saw the comrades being arrested right in Bloemfontein.

We had cases and I asked for permission to visit home. I asked for permission to go back home as a person who would only be visiting home. When I got in Umtata I decided, in fact I did not decide but I was sent to Pretoria in Welmanstad to conduct integration there. And when I came back from the integration to visit home here in Pietermaritzburg ...(intervention)

CHAIRPERSON: You are going too fast. What is the name of this place that you say you went to? Welmanstad?

MR XABA: Walmansdal, the name of the place.

CHAIRPERSON: Where is that?

MR XABA: I think it’s in the northern part of Pretoria.

CHAIRPERSON: Why did you go there?

MR XABA: They needed MK soldiers to go to that area to do the integration or conduct the integration, especially the commanders. It was of great importance that we be the ones who get into the army of the country. That is why or hence I was sent to that area in Pretoria, Walmansdal.

CHAIRPERSON: Who was the person that sent you there?

MR XABA: It was the regional army commissar of MK.

CHAIRPERSON: What is his name:

MR XABA: Pitlo is his name.

CHAIRPERSON: Will you spell that for me?

MR XABA: P I T L O - Pitlo.

CHAIRPERSON: Yes, now what is the office he occupies. what was his position?

MR XABA: He was an army commissar.

CHAIRPERSON: Yes?

MR WILLS: Thank you.

And you say in your affidavit that you were eventually arrested in 1994 at the tollgate at Pinetown, and this was no doubt when you were on this trip back home that you mentioned in your affidavit, correct?

MR XABA: No, this is a mistake. In 1994 I was arrested next to or in Creighton.

CHAIRPERSON: What were you arrested for?

MR XABA: I was arrested for the very case of killing Mr Baxter, and another one that I committed in Pinetown in 1992, so there were two warrants of arrest in other words.

CHAIRPERSON: What was it that you committed in Pinetown?

MR XABA: In 1992 I was arrested in possession of arms that I had concealed in my, in the boot of the car and I was transporting them to Natal Midlands.

ADV DE JAGER: But now you’re talking about 1992, and you’ve just told us that you were arrested in 1994 in Creighton for this case and another one which you committed in Pinetown. What did you do in Pinetown?

MR XABA: Let me say, in 1992 when I arrived in the country from the exile or in South Africa, there was another case that I’d committed or another crime that I’d committed. I was found with arms or weapons in my possession and I managed to avoid that or run away from that, and I was arrested and discharged on a bail, or released on, or was given a bail. And after seeing that I was being harassed I was not too sure if they were, if those were police or the flying squad who were harassing me. I decided now to run away and escape.

When I was being arrested in 1994 I was being arrested for the case of 1992 and 1993, so there were two warrants of arrest. And I was charged with the one of Mr Baxter and I was convicted with the one for 1992 in CR Swart in Westville. So this particular one was a further charge.

MR WILLS: I just want to clear something up, and I refer the committee to Page 11 of the papers in paragraph 20.

You say this is, I’m reading from an affidavit that you made in support of your application, you say that I was eventually arrested on the N3 highway at the tollgate near Pinetown on 4th of September 1994, is that incorrect?

MR XABA: No, it’s not like that. This is incorrect. It was August 1992 when I was arrested in Pinetown. On the 4th of September it was next to Creighton, 1994.

MR WILLS: Sorry, I just want to clear that up. You say you were arrested, what year were you arrested near the tollgate?

MR XABA: It was in 1992.

MR WILLS: And in 1994 you were arrested in Creighton, at your home.

MR XABA: Yes in Creighton, on September 4. I was being arrested for killing Mr Baxter.

MR WILLS: Yes, and is it not so that you were granted amnesty, you were, well, first of all you were sentenced to long periods, I think 15 years of imprisonment in relation to the illegal possession of the firearms that you were caught with in Pinetown and you were granted amnesty, you served a one year sentence and you were granted amnesty?

ADV DE JAGER: I think the correct term would be indemnity, at that stage. Wasn’t it under the previous act?

MR XABA: Yes.

MR WILLS: It is so that it was under the previous Act and about your judgment of the use of terms, the reason I didn’t use that term was because it was after he was actually prosecuted, so he wasn’t indemnified from prosecution. He was prosecuted and sentenced. But be that as it may, the fact of the matter is that there was an administrative intervention resulting in his release from prison early.

CHAIRPERSON: That was an indemnity ...(indistinct) the previous Act.

MR WILLS: Yes, thank you Mr Chairperson.

CHAIRPERSON: You say that he was granted an indemnity in respect of his sentence for fifteen years?

MR WILLS: That is correct, Mr Chairperson, and that is indicated in his affidavit at page 11 of the bundle and paragraph 21. Sorry, I made a mistake Mr Chairperson, my address on that question is he wasn’t in fact released from prison, and I’ll clear that up now.

You were serving a 15 year sentence, but you indicated you were also being held in respect of the murder of Mr Baxter, is that correct?

INTERPRETER: Please may you repeat your last question.

MR WILLS: I say you had been serving a 15 year sentence, but you were also being held in respect of the murder of Mr Baxter, is that right?

MR XABA: Yes.

MR WILLS: So even though you were granted indemnity in respect of the arms charges, the 15 year sentence, is it not so that you remained in custody in order to face trial in regard to the Baxter murder?

MR XABA: I was released, but not in prison. I was not in prison with regard to Mr Baxter’s case. I was not kept in custody. It was supposed to have happened in such a way that I should go and wait on the further trial, but the Westville prison did not do that because the police of Westville prison tried to contact the murder and robbery squad of Bizana to come fetch me because I was done with them, but they did not do so. Then Westville decided to release me, to let go of me, and I went. I left the prison in other words until such time that I got arrested, and it was 1996 the year, the second time around now, with regard still of Mr Baxter’s case.

MR WILLS: And where were you arrested then?

MR XABA: I was arrested in Creighton and I was on my way to vote.

MR WILLS: That must ...(intervention)

ADV SIGODI: ...(indistinct)

MR WILLS: So was this the voting for the local government elections, when you were arrested?

MR XABA: Yes, the local government.

MR WILLS: And you’ve been in custody since then?

MR XABA: Yes.

MR WILLS: Does that clear it up, Chairperson?

CHAIRPERSON: Yes.

MR WILLS: Thank you. May I continue?

CHAIRPERSON: Yes, please do.

MR WILLS: You’ve indicated - you’ve given evidence in regard to the problems that you believed Mr Baxter was responsible for in relation to the voting, were there any other complaints made to you about the way Mr Baxter treated the people that you were involved with?

MR XABA: One other thing was that as I kept receiving complaints from people, where he could not succeed in misleading the people he will label them as kaffirs. I did receive such a complaint from respective people. One of the people who came was the member of the committee who brought that report to me, the area committee of the ANC, Kuki, by the name of Kuki: K U K I.

MR WILLS: You also indicated in answer to a question of one of the Committee Members that Mr Baxter was indeed an ANC card-carrying member.

MR XABA: Yes.

MR WILLS: Now what was your attitude in relation to this membership?

MR XABA: The committee reported to me that Mr Baxter's action that is misleading the people, he is a card carrier of AN. Strange enough, that’s when I realised and discovered that he was an agent of the boer government or government of the day to disturb the voter’s education that I was conducting in the area.

As usual, and being part of the struggle, you will find that there are some agents who will come and infiltrate ANC and I had experienced that in the past.

MR WILLS: Is it not so that one of your jobs in Tanzania, at camp in Tanzania, was to check the food that was being fed to the comrades in the camps, as you feared it was being poisoned by agents?

MR XABA: Yes.

MR WILLS: We’ve arrived at a position now in our country’s history where the election has passed and the armed struggle has stopped, what do you have to say to Mr Baxter’s family members in relation to this incident, today?

MR XABA: Firstly I will say the government of the ANC had managed to bring democracy on top of what we’ve done, the dirty deeds was done before. We’ve killed, and killing, it’s not a good thing, it’s not something that one can rejoice in it. What I can explain is that a person has two wounds, one it’s exposable or its visible, and more especially people like Mr Baxter’s wife and Mr Baxter’s family and parents and friends, and the community of South Africa in general.

Wounds that one can see are those whereby a doctor can see and cure that wound, and when the wound is healed one can no longer feel the pain. And the wound that one cannot see is an emotional one. This one you experience when you lose someone you love and this type of wound one cannot see but it’s inside you, you carry it all the time. But on top of all these things, the one who suffers this pain can forgive others, but the wound will always be there.

What I’m trying to tell the Truth and Reconciliation Commission is that they have tried to take South Africa and make it an example to other countries in the world, that reconciliation is built in a certain way. I’m sure that children who are still growing up and the generation to come and organisations which never see eye to eye, and whites who used to hate blacks, they will come together because of the history which we’ve made and the truth which we’ve told. South Africa is an example in the world. It showed this by building South Africa on the truth, thank you.

And I would also like to apologise to Mrs Baxter and the family, and his parents. What I’ve done I didn’t do so because he was just white, but I was fighting against injustice at the time. And I’m also prepared that, if I’m released I will make sure that people who are just killing whites just because they’re whites, especially those who are killing the farmers, to work and bring harmony between those people, even the whites who are still continuing exploiting blacks in farms. I will make sure, or I’ll try and make sure that it ends.

MR WILLS: Thank you Mr Chairperson. I have no further questions.

CHAIRPERSON: Just before we adjourn, what level of education has the applicant had?

MR XABA: Standard 6.

CHAIRPERSON: What kind of work have you done when you did work?

MR XABA: Carpentry and plumbing.

CHAIRPERSON: Where?

MR XABA: Railway.

CHAIRPERSON: Where?

MR XABA: Durban station, in Durban.

CHAIRPERSON: What years?

MR XABA: As from 1980 until January 1987.

CHAIRPERSON: Thank you.

The Committee will take an adjournment for 15 minutes.

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

MR SHAW: Thank you Mr Chairman.

CHAIRPERSON: You are reminded that you are still under oath, you understand?

LINDA JEFFERY XABA: (s.u.o.)

CROSS-EXAMINATION BY MR SHAW: Mr Xaba, I’d like you to understand first of all that my client and her family do not hold any bitterness towards you. They obviously have had a great tragedy in their lives, as have many other people in this country.

If you would like to interpret that?

INTERPRETER: It has been interpreted to the applicant.

MR SHAW: The reason that they are opposing this application is because they are not convinced that you acted from a political motivation. Now, do you have any proof that you are in fact an MK member?

MR XABA: Yes, I do have.

MR SHAW: What proof do you have of that?

MR XABA: In MK’s documents in Natal Midlands, documents in Durban, my name is there. If you check the documents of MK in Durban you will find my name there.

MR SHAW: Do you agree with me that no proof was given to the High Court in Umtata that you were an MK member, nor has any proof been given to this TRC Commission that you are actually an MK member?

MR XABA: Yes I do, I agree that I haven’t provided that proof.

MR SHAW: Do you remember appearing in the Mount Ayliff Magistrates Court after, I think, you had been brought from Westville prison?

MR XABA: Yes, I do remember.

MR SHAW: And you were charged with murder in the Mount Ayliff Magistrate’s Court.

MR XABA: That’s correct.

MR SHAW: Do you recall what you told the Court?

MR XABA: Yes, I do.

MR SHAW: Could you repeat what you told the Court.

CHAIRPERSON: ...(indistinct) very broad question, about what he told the Court during an entire trial? Shouldn’t you direct his attention to something specific that you’re interested in?

MR SHAW: Thank you Mr Chairperson.

Mr Xaba, in the ...(indistinct)

INTERPRETER: The speaker’s mike is not on.

MR SHAW: Mr Xaba, at the Mount Ayliff Magistrate’s Court, your plea explanation was as follows :

Do you recall saying that to the Court?

CHAIRPERSON: Now just hold on. He said that to the Mount Ayliff Court?

MR SHAW: Yes. Mr Chairman he appeared - the offence had originated within the jurisdiction of the Mount Ayliff Court, he was therefore arrested and taken to that Court before the trial proceeded before the High Court of Transkei.

CHAIRPERSON: So this is - the statement that you are putting before him is something he said before the trial, in the Mount Ayliff Magistrate’s Court?

MR SHAW: That is correct.

Now Mr Xaba, what ...(intervention)?

CHAIRPERSON: Hold it, he hasn’t answered the question.

MR XABA: Yes, I do recall.

MR SHAW: What quarrel had you had with the deceased, Mr Baxter?

MR XABA: When I approached him and I said to him: "You are here now" and my first question was: "Do you know me?", and ...(intervention)

CHAIRPERSON: Please answer the question, what was the quarrel about? I don’t want a full discussion of the dialogue between you and him. What was the quarrel that you had with him, is the question. Try and be succinct, in other words short, and answer the question itself without giving lengthy explanations unless you’re asked to give explanations. Do you understand?

MR XABA: Yes.

CHAIRPERSON: Right, now answer the question. What was the quarrel that you had with him?

MR XABA: He just said I was there, that’s all.

CHAIRPERSON: That’s all?

MR XABA: Yes.

CHAIRPERSON: Thank you, you may proceed. Do you have a copy of that statement? Is that part of the bundle here?

MR SHAW: No, it’s not part of the bundle.

CHAIRPERSON: Do you have a copy?

MR SHAW: I do have a copy, yes.

CHAIRPERSON: Will you be using that copy?

MR SHAW: I can hand this in to the Commission.

CHAIRPERSON: Do you intend using it, I mean?

MR SHAW: Yes, I think so.

CHAIRPERSON: Yes, will you make a copy available to us in due course?

MR SHAW: Certainly, Mr Chairman.

MR WILLS: Mr Chairperson, possibly I can come in at this stage. In the dictates of fairness I would request that should my learned friend want to present documentary evidence to the applicant in this matter I would appreciate being appraised of this beforehand and being in a position to take instructions on those documents.

CHAIRPERSON: Yes but now it just happens that I don’t think it’s we who are asking whether he wants to use the document. I will allow him and you will have an opportunity of going through it.

MR WILLS: As you please, Mr Chairman.

CHAIRPERSON: In the normal course we would like parties to exchange documents beforehand, so that nobody is taken by surprise. If there are other documents which you intend using Mr Shaw, I don’t know whether you do have, but if you have other documents which you intend using will you kindly make them available to counsel for the applicant.

MR SHAW: Mr Chairman I will do so. This document was made available at the previous hearing, to counsel for the applicant, and we in fact discussed this document as well as another statement made, which I intimated that I would not be using. This was at the abortive hearing in Durban.

CHAIRPERSON: Very well, we will make a copy of this particular document. What is the date of this document, Mr Shaw?

MR SHAW: Mr Chairman it’s the 28th of September 1994. It’s an extract from the recording of the plea before the Magistrate’s Court in Mount Ayliff on that date, before Magistrate L G Mbete.

CHAIRPERSON: Thank you.

ADV DE JAGER: Have you got copies already, or could somebody assist him in making copies please?

CHAIRPERSON: Yes, you may proceed in the meanwhile.

MR SHAW: Mr Xaba, when did your political motivation first surface in this, as a defence?

MR XABA: Before I committed this crime.

MR SHAW: You didn’t disclose your political motive at Mount Ayliff Court, did you?

MR XABA: No, I didn’t.

MR SHAW: Is there any particular reason why you didn’t?

MR XABA: Yes.

MR SHAW: Could you tell us why?

MR XABA: First of all, I didn’t want to reveal that I was a member. Secondly, when the Court questioned whether I accepted or I deny and I told the Court that I accepted, and when they asked me why I said we quarrelled.

Thirdly, Bizana police have already scared me. They wanted me to make a statement and I decided that I was going to make a statement but I wasn’t going to reveal that I was taking forward my organisation, because I was scared that they are going to deport me to Kokstad if I had told the Court or the police.

MR SHAW: So you limited your statement to informing the Court that you were a full member of MK?

MR XABA: I didn’t tell them and they didn’t ask me.

MR SHAW: Mr Xaba I’m reading from your plea explanation, and this is the second last sentence:

That is what is recorded in the Mount Ayliff Magistrate’s Court on the 28th of September 1994.

CHAIRPERSON: This document will go in as Exhibit A. Please proceed.

MR XABA: Would you please repeat the question.

CHAIRPERSON: In the statement that you made to the Magistrate in Mount Ayliff you did say that you’re a member of Umkhonto.

MR XABA: I didn’t say so in Court, I only wrote this to the police statement.

CHAIRPERSON: You’re being questioned about this statement, that you did say so in that statement, you admit that?

MR XABA: Yes. I thought I was questioned about the Court, not the police statement.

ADV DE JAGER: You’re in fact questioned about your statement in Court, what you told the Magistrate, and in this document which has been put before us as a copy of what you said in Court, it is stated that you told the Magistrate that you’re a full member of MK.

MR XABA: Oh yes, I remember. My apology, I remember. It’s been a long time.

MR SHAW: Was that the first time you revealed to anyone your connection with MK?

MR XABA: You mean in Court?

MR SHAW: Yes.

MR XABA: I told the police first, and then I told the Court.

MR SHAW: Is it correct that the next time that you appeared in Court was in the Port St John’s Circuit Court?

MR XABA: That’s correct.

MR SHAW: Thereafter the matter was postponed and eventually came before the High Court in Umtata before Judge Madlanga: M-A-D-L-A-N-G-A, and you were represented by Adv Majokweni: M-A-J-K-W-E-N-I?

MR XABA: That’s correct.

ADV DE JAGER: Could I just clear up something? A few minutes ago you told us that you didn’t want to reveal that you were a member of MK because you feared that you would be transferred or that they would deport you to Kokstad, you used the word deport, but that isn’t so because you now acknowledge that you in fact told them that you’re an MK member.

MR XABA: Sorry. What I meant was I didn’t want the Court to know that my aim of killing this person was because of my organisation’s objectives. It was an operation which I’ve planned.

CHAIRPERSON: ...(indistinct) an answer to the question you see, that might be an explanation. You’ve told us that you did not want to reveal to the Court that you were an MK because you would be deported to Kokstad. Now it transpires that you did reveal to the Court that you were a member of the MK, and you’re invited to offer an explanation, why these contradictory statements?

MR XABA: What I meant is that - maybe I made a mistake, what I meant was I did accept that I was a member of MK but I didn’t want the Court to know that I committed this crime because of my organisation objectives. I was - I didn’t want them to know that I committed the crime in the name of my organisation, because I also had another crime, MK crime, so to call it, which I’ve committed in KwaZulu Natal.

ADV SIGODI: Why would you be deported to Kokstad?

MR XABA: This is what I thought, I thought that the police from Transkei will think that I left KwaZulu Natal to fight there, and I thought that they were going to refer the case to KwaZulu Natal.

MR SHAW: Now Mr Xaba, at the trial in Umtata, before Judge Madlanga, you were represented by Adv Majokweni, is that correct?

MR XABA: That’s correct.

MR SHAW: And can you recall how long that trial ran, for how many days?

CHAIRPERSON: ...(indistinct).

MR SHAW: ...(indistinct)

CHAIRPERSON: If you can, tell him how long it took ...(indistinct).

MR SHAW: Mr Xaba, I think in total the trial ran for a total of seven or eight days, is that correct?

MR XABA: I don’t remember, but it was a long time.

CHAIRPERSON: Mr Shaw, was there any adjournment in the trial?

MR SHAW: Yes, there was Mr Chairman.

CHAIRPERSON: Was there a break in the trial?

MR SHAW: There was a break in the trial.

CHAIRPERSON: And is your question relating to this ...(indistinct).

MR SHAW: Mr Chairman I’ll get to the exact point of the question now if I may.

And the reason that the trial continued was because, although you had admitted all the elements of the offence, the prosecution took issue with you about the motive that you had given for committing the offence, is that correct?

MR XABA: That’s correct.

MR SHAW: And so the trial proceeded purely as to whether the motivation that you’d given to the Court was true or false?

MR XABA: That’s correct.

MR SHAW: Did you have any problems with being represented by Adv Majokweni?

MR XABA: No, I didn’t have any problems.

MR SHAW: Was there in any way any criticism that you could level at the presiding judge, Judge Madlanga?

MR XABA: ...(no English translation). No.

MR SHAW: So you’re satisfied that your case was fairly presented to the Court, and that on the evidence before Judge Madlanga he took a correct decision in rejecting your supposed political motive?

CHAIRPERSON: Well he may disagree with the judge. The point of the matter is that the Judge’s decision was not ...(indistinct) on appeal. Was there an appeal?

MR SHAW: Mr Chairman no, there was no appeal.

CHAIRPERSON: ...(indistinct). A man may be convicted by a judge who might have given him a fair trial, he may nevertheless disagree with the conclusion the magistrate may have come to.

MR SHAW: I take your point, Mr Chairman.

CHAIRPERSON: Is there somewhere in the judgment where the judge says that he does not accept the motive that was advanced by him?

MR SHAW: Yes, that is contained in the judgment, Mr Chairman.

CHAIRPERSON: Perhaps at a convenient time you will refer us to that.

MR SHAW: Mr Xaba, in your affidavit which is in the application, at paragraph 15 you state that:

d we wrote a letter concerning this problem to the Zonal Committee Chairperson, Mr Jakuja.’

Do you recall telling us that, and confirm the contents of your statement?

MR XABA: You’re referring to my statement when I

said the committee wrote a letter to Mr Jakuja?

MR SHAW: Yes. Now what evidence did you give the Court in Umtata in that regard, about the letter?

MR XABA: I said the letter was written by the committee and was sent to Mr Jakuja and there was no response from Mr Jakuja, and we wrote another letter and the committee sent it to Mr Jakuja and we didn’t get any response as well. I took a decision on my own as a member of ANC, in the name of ANC, that I should kill Mr Baxter. But we didn’t get any response from Mr Jakuja but people kept on coming to complain.

MR SHAW: Right, so the situation now is that you in fact wrote two letters to Mr Jakuja, is that correct? - that's what you've just told us.

MR XABA: Yes. There may be two or more than two. I was the one who advised the committee to write, to write the first one. I actually advised the committee to do so.

CHAIRPERSON: When Mr Jakuja did not reply, why did you not go to him to ask him for his answer?

MR XABA: The way we were operating in the committee, my responsibilities were to recruit, and voter’s education and the Executive Committee of the branch was responsible to approach Mr Jakuja. I didn’t have those powers. My work was to advise the committee and to recruit members.

CHAIRPERSON: You were aware that there was no reply from Mr Jakuja. You were aware that further letters were written, why didn’t you ask the committee to approach Mr Jakuja?

MR XABA: The three members of the committee went to Mr Jakuja and brought the letter to Mr Jakuja.

CHAIRPERSON: That’s not the question, the question is why did you not tell the committee to go to Mr Jakuja and get a response from him?

MR XABA: I guess I didn’t think so, I thought the committee was going to do its job.

CHAIRPERSON: Yes, do carry on.

ADV DE JAGER: Did the committee deliver the second letter too, and if there was in fact a third one, did they deliver it by hand too?

MR XABA: Yes.

ADV DE JAGER: So they saw Mr Jakuja, they could have asked him; why didn’t you reply to our last letter?

MR XABA: The first one was delivered by the committee. When they went there the second time I don’t know exactly how they went there or who went there, but this was reported to me, that they’ve given him the letter. The committee was taking the letter personal to Mr Jakuja.

CHAIRPERSON: It was your idea in the first place to write, that the committee should write to Mr Jakuja, wasn’t it?

MR XABA: Yes, it was.

CHAIRPERSON: Do carry on.

MR SHAW: Now, Mr Xaba, you gave evidence in the hearing under cross-examination, and the presiding judge asked you when this particular meeting was held, and your answer was:

- this meeting regarding the deceased, Mr Baxter.

CHAIRPERSON: Will you tell us when you are referring to, referring from ?

MR SHAW: Mr Chairman this arises from my notes. The committee does not have a record of this.

The presiding judge asked you when this meeting regarding Mr Baxter had been held, and your response was that it was at the end of August and also during September of that year, do you recall that?

MR XABA: The judge asked me when did I arrive in Mount Ayliff, I said late July or early August. That’s what I said.

MR SHAW: That is quite correct, and then he asked you various questions regarding these alleged meetings at which the problem of Mr Baxter had allegedly been discussed ...(intervention)

MR WILLS: Sorry, Mr Chairperson, I must come in here. I insist that if my learned friend is relying on notes of an official document, then surely the proper procedure would be to provide the parties, and particularly the Committee, with a transcript of that record. I find myself in a position of having to take my opponent’s word for certain things that are recorded in a public document when that public document would suffice, and with respect, with the greatest respect to my learned friend, that’s very problematical for me.

CHAIRPERSON: Mr Shaw you’re relying on your notes you have made ...(indistinct), are you relying on any official Court document?

MR SHAW: Mr Chairman to place this matter in perspective, when I was informed right at the beginning of the application for amnesty I wrote to the TRC and informed them of the trial, I gave them the background and told them that the trial record and the transcript was available because I had checked up in Umtata that it was available. The Evidence Analyst then contacted me and asked me what documentation I thought would be necessary, and I said at the very minimum, the transcript of the judgment of Judge Madlanga. No other documents have been obtained by the TRC and the only other documents that I have here are my notes of the evidence which was given, I was present at during the trial. I do take my colleague’s point ...(intervention)

CHAIRPERSON: You are not relying on documents. He's not relying on documents, he's not going to seek to prove the contents of documents, but he is entitled to put questions and the witness can admit or deny whether he said that.

MR WILLS: As you please, Mr Chairperson.

CHAIRPERSON: Just to clear it up because there ...(indistinct). The applicant did say that he told the magistrate that he arrived there late in July or early August, arrived in Mount Ayliff. We’ve got that clear. Your next question arising out of your notes was when did the committee meet to consider this Baxter problem, and you were going to put to him that there was a date when that occurred, isn’t it?

MR SHAW: That is correct Mr Chairman, I’ll put to him that he had suggested to the Court that it was at the end of August and also during September.

CHAIRPERSON: Can you recall telling the Court that the matter of Baxter was discussed late in August and again in September?

MR XABA: As from late August up until November we didn’t talk about this or discuss about this in one specific time but different times.

CHAIRPERSON: During that period?

MR XABA: Yes.

CHAIRPERSON: So now you’ve got the position between August and November at some stage this matter was discussed in the committee.

MR SHAW: Now I might be wrong Mr Xaba, but the question was also put to you, was it the minutes that were sent to Mr Jakuja or was it a letter, and you indicated that it was the minutes that were sent to Mr Jakuja and not a letter.

MR XABA: It wasn’t minutes, it was a letter which was written by the committee.

MR SHAW: Was the problem of Mr Baxter recorded in the minutes?

MR XABA: The secretary is responsible to do so, and I cannot confirm that she did write or she didn’t, but what I’m certain of is that the committee wrote a letter to Mr Jakuja. She was responsible to write those things because when we’re having a meeting while the secretary will take everything which is said in the meeting.

ADV DE JAGER: Yes and at the next meeting they will read the minutes. Did you hear whether she recorded it or not?

MR XABA: I don’t remember, ‘cause what was important was Mr Baxter’s problem. This was a major problem so we were discussing about it in meetings. In fact, every meeting which we held we used to discuss Mr Baxter.

MR SHAW: So you don’t recall whether this problem was recorded in the minutes or not?

CHAIRPERSON: I think in fairness you know, he didn’t read the minutes. It may or may not have been recorded in the minutes.

MR SHAW: Mr Chairman, with respect, this was a matter of prime importance to the applicant.

CHAIRPERSON: Yes, but I mean his recollection of what is recorded in the minutes of meetings, are...(indistinct) recorded in minutes. It's also only an assumption that these minutes are read out at the subsequent meeting.

ADV SIGODI: And another thing, have you got a copy of those minutes, or was any copy of the minutes made available?

MR SHAW: Adv Sigodi, the situation is that those minutes have never been brought anywhere, they have never been made available, and my next question will bring precisely that to bear. Had you ever, during your trial, made arrangements for these minutes to be brought forward to prove that the problem of Baxter was discussed at an ANC meeting?

MR XABA: No.

MR SHAW: I see that Mr Gwebani who was interviewed on the 17th of June 1998, this is page 22, makes no mention of a letter to Mr Jakuja in his statement.

MR XABA: Yes, he didn’t mention the letter.

MR SHAW: Now, have you made any attempt to contact Mr Jakuja to come and give evidence in support of this application?

MR XABA: No, I didn’t.

MR SHAW: And after committing this offence, you say that you went and reported to somebody in Umtata, who was that?

MR XABA: China. His other name is Sibusiso:

S-I-B-U-S-I-S-O.

MR SHAW: Do you know his surname?

MR XABA: No, I don’t know his surname.

MR SHAW: So there’s no confirmation from him that you in fact reported to him?

CHAIRPERSON: No confirmation by him to whom?

MR SHAW: Mr Chairman - there’s no independent corroboration that you in fact reported to Sibusiso about this crime that you’d committed?

MR XABA: Sibusiso can actually confirm this.

MR SHAW: Now, how long did it take you to come to a conclusion that the deceased was misleading people? How long were you in the area before you came to the conclusion that the deceased was misleading people in their voting procedures?

MR XABA: It was a long time. I think more than two months I have been receiving these reports that he was misleading people.

CHAIRPERSON: If you arrived in Mount Ayliff in July or August, how soon after that did you receive a report of what Mr Baxter was doing?

MR XABA: Late August.

CHAIRPERSON: What year?

MR XABA: 1993.

CHAIRPERSON: Do carry on.

MR SHAW: And among these reports you received other reports that the deceased was maligning people by calling them kaffirs?

MR XABA: That’s correct.

MR SHAW: And in your evidence in Umtata you told the Court that you’d received reports from 200 people that he had called them kaffirs, do you recall giving that evidence?

MR XABA: That’s correct.

MR SHAW: And you also told the Court that these 200 people had also told you that he had tried to mislead them regarding voting?

MR XABA: That’s correct.

MR SHAW: Now, you knew that Mr Baxter was a farmer, did you not?

MR XABA: No, I didn’t know.

MR SHAW: You knew that he was selling milk from the back of his motor vehicle, an LDV into Transkei?

MR XABA: Yes.

MR SHAW: And I think you told this inquiry just now that your observations showed that he went, I think on a Monday and a Thursday to sell milk on that particular route?

MR XABA: He was selling twice a week. It may be Monday or Tuesday or Wednesday or Thursday, but twice a week.

MR SHAW: So, if we have your evidence correctly then, the very people that he was selling to, he was maligning by calling them kaffirs and also trying to mislead them and at the same time he was selling them milk?

MR XABA: Those he couldn’t mislead them, those are the ones he used to call them kaffirs.

MR SHAW: Sorry I didn’t quite catch that. The ones he couldn’t mislead he was calling kaffirs?

MR XABA: That’s correct.

MR SHAW: To their faces?

MR XABA: That’s correct.

MR SHAW: And these were people that he was selling milk to?

MR XABA: Some will come and buy milk and some will just come there. Those are the people.

CHAIRPERSON: How does he ...(indistinct) to call his customers kaffirs? If he'd insult them, why would they buy milk from him?

MR XABA: He wasn’t calling them kaffirs for as long as they accept his view that they should put X next to F W de Klerk. Those who didn’t accept that are the ones he used to call them kaffirs.

CHAIRPERSON: He knew full well that from then onwards they would not buy milk from him?

MR XABA: Only the ones he used to call them kaffirs were not buying milk from him.

CHAIRPERSON: So he realised that if he called people kaffirs they would not buy milk from him?

MR XABA: Yes. When he called them kaffirs, in my own view or opinion I think those he used to call them kaffirs were the ones who were arguing with him sometimes, they will answer him back badly.

ADV SIGODI: Sorry, just to clarify this point. Do you have knowledge where he would mislead these people? Would he mislead them whilst selling milk to them, or would he mislead them at another place, elsewhere?

MR XABA: He will use the same time he is selling milk to mislead them.

MR SHAW: Now I’ve gone through Mr Gwebani’s affidavit at page 21 and 22 of the record, and he makes no mention whatsoever of this allegation of Mr Baxter calling his customers kaffirs.

MR XABA: This is how he wanted to put his statement.

MR SHAW: And you called a Mr Lusawana to give evidence in mitigation of sentence at your trial, did you not?

MR XABA: I only called the chairman of the ANC but he was also present.

MR SHAW: Yes. Mr Chairman this is at page 63 of the judgment, it’s Zalisile Maxwell Lusawana.

You called him as a witness in mitigation of your sentence, correct?

MR XABA: He came out of his own will as a father but I didn’t call him.

MR SHAW: And I read from page 66, line 20, or line 18:

That is the evidence of Lusawana, and it was then put to him:

And the witness went on to say:

Now what position was Mr Lusawana, what did he hold?

MR XABA: He didn’t have any position since he wasn’t even a member of the ANC.

MR SHAW: So he was merely a member of the community there?

MR XABA: Yes, he was merely a member of the community and he was working at the cattle dip area.

MR SHAW: And it’s clear that he heard nothing of these problems with the accused, with the deceased either.

MR XABA: I remember him saying that he heard nothing before he died, he only heard after he’d died.

CHAIRPERSON: Are you nearly finished?

MR SHAW: No.

Now, can you put forward any reason to this hearing as to why your version might have been rejected by the trial Court?

CHAIRPERSON: I don’t think that that is a fair question, or a relevant question. I mean how can an accused person offer an explanation as to why a judge comes to the conclusions that he came to. All we have to do is to look at the judgment and see what the Judge says about his evidence, isn’t it?

MR SHAW: I’ll withdraw that question Mr Chairman.

ADV DE JAGER: Was Mr Baxter a member of any ANC branch?

MR XABA: Yes.

ADV DE JAGER: Who was the chairperson of his branch?

MR XABA: It was Deni. His surname is Danyiyele. D A N I N Y I N I.

ADV DE JAGER: He was one of the persons you told us went to deliver the letter, isn’t that so?

MR XABA: That’s correct.

ADV DE JAGER: Baxter’s ...(indistinct), the letter to Mr Jakuja. Do you know whether Mr Deni spoke to Mr Baxter about his behaviour?

MR XABA: I don’t remember.

ADV DE JAGER: What was Mr Deni’s attitude about this branch member of him misleading the people?

MR XABA: What he will say, Deni and his committee, they will say that the man is dangerous, the man is dangerous and they are scared of him since he is misleading people.

CHAIRPERSON: Just clear it up, what branch did Mr Baxter belong to?

MR XABA: Umwaca branch: U M W A C A.

CHAIRPERSON: Yes, do carry on.

MR SHAW: Thank you, Mr Chairman.

Mr Xaba, you will recall that you were cross-examined at some length as to the possibility of you recalling the names of people that you said had been misled by the deceased, and you weren’t able to tell the Court of any names of the people, with one exception. Do you recall giving that evidence?

MR XABA: Yes, I do recall.

MR SHAW: The only single name that you could recall was one Kuki.

MR XABA: That’s correct.

MR SHAW: You confirm that he was the only person that you could recall, that he told you that the deceased had been misleading people regarding voting? - the only person you could put a name to.

MR XABA: Yes, even though I do know others. I only have a problem with their names, but I know them. This one I know his name because he was also in the committee.

MR SHAW: What is Kuki’s other name.

MR XABA: We’ve known him as Kuki. I don’t know his other name and his surname. He was the chairperson of the area committee, not the executive member.

MR SHAW: And did you ever discuss the question of expelling the deceased from the ANC?

MR XABA: No, we didn’t think about that.

MR SHAW: Mr Xaba, was there any opposition to Mr Baxter’s business in the area?

MR XABA: No.

MR SHAW: So he was providing a service to the community?

ADV DE JAGER: What do you mean? Opposition in the sense of did he have competition or opposition in the sense of people opposing him and didn’t want him to do business at all?

MR SHAW: Mr Chairman, it has been suggested that one of the possible motives could have been that opposition businessmen could have hired or requested somebody to kill him.

CHAIRPERSON: Isn’t that just conjecture?

MR SHAW: That’s precisely why I haven’t put it to him, Mr Chairman.

CHAIRPERSON: ...(indistinct)

ADV SIGODI: Mr Shaw, is it your case that Mr Baxter never misled people, or didn’t tell people to put and X? I think that is the crux of the matter is that he misled people and he told them to put an X next to de Klerk whereas if that’s the person that they don’t want or whatever, but is it your case that he never misled the people?

MR SHAW: Mr Chairman, yes. The case is that he was a fairly apolitical person, that although he was a card-carrying member of the ANC he didn’t take an active part in politics whatsoever, that he spoke Xhosa fluently, that he was well-known and respected in the area, and that the motive that has been put forward here today and also put forward in the criminal trial was purely to try and gain amnesty for a crime that was committed.

ADV SIGODI: Then put the case to the applicant.

CHAIRPERSON: What do you think? ...(indistinct) I understand what you are saying, you are challenging his motive ...(indistinct). Are you suggesting that he may have had some other motive in committing the crime, and not the one that he says was the reason?

MR SHAW: Mr Xaba, I am suggesting to you that your motive in committing the crime was not a political one, that it was either as suggested by the trial judge, that of robbery, or alternatively possibly you had another motive for committing the crime, namely that you had possibly been hired by business opponents in the area.

MR XABA: That’s not true at all.

MR SHAW: I have no further questions, Mr Chairman.

CHAIRPERSON: Ms Patel, are there any question you wish to put?

MS PATEL: No thank you, Honourable Chairperson.

CHAIRPERSON: Any re-examination?

MR WILLS: No re-examination Mr Chairperson.

CHAIRPERSON: If Baxter was doing harm to the organisation, why didn’t you take steps to see to it that he was expelled and that it was known, made known to the people that Baxter is no longer a member of the ANC and must not be heard or listened to, instead of killing the man?

MR XABA: I didn’t think about that, but what I realised was that even if he was a member of ANC or not, he will still continue to mislead people, because at the time when I killed him I was certain that he wasn’t a member of ANC. I didn’t think of expelling him.

CHAIRPERSON: Why not? Wasn’t that a better way to deal with the man than to kill him? Just because he was telling people to vote differently from the way you would vote? If people disagree with you politically the only way out is to kill them?

MR XABA: At the time when this thing happened there was no negotiations, people who were enemies never sat down and talk about differences.

CHAIRPERSON: I don’t know what you are talking about. I thought at that time there was talk about elections, and he was telling people where to put the cross.

MR XABA: It is true people were talking to each other, but at that time we were the product of, we were scared that we were going to be killed and also we were killing, killing was the solution.

CHAIRPERSON: This is the first time you talked about you were afraid of being killed. Up to now not one word of that has been breathed, you understand, and I don’t accept a word of what you are saying in that regard. I'm sorry, I'm told that what I've said ...

ADV SIGODI: ...(indistinct).

CHAIRPERSON: Please do.

ADV SIGODI: I’ll clarify it with him. Did you say that you were a product of the strife and that at that time in your mind the solution would be to kill because you, because people had been killed? The solution would be to kill the enemy, or whom you perceived to be the enemy?

MR XABA: That’s correct.

ADV SIGODI: Was it easy - firstly let me just get an idea of this area where you were campaigning for the ANC, was it a rural area or an urban area?

MR XABA: Rural area.

ADV SIGODI: And when conducting this voter education, how would you reach out to the community?

MR XABA: We will call them to schools or churches and we will conduct the voter’s education there, we will talk to the chiefs of the areas.

ADV SIGODI: And would you get a big response from the people that you were educating?

MR XABA: Yes, we will.

ADV SIGODI: At the time that you were checking out, or in your observations of Mr Baxter’s movements, when he was selling the milk, would there be a lot of people coming to buy the milk from him?

MR XABA: Yes, a lot of people would go and buy milk from him

ADV SIGODI: The point that I’m coming to is, would it have been easy for you to inform the people that Mr Baxter was misleading them, and that he should be expelled from the ANC?

MR XABA: Yes, it was going to be easy, but comrades do not like the idea of expelling other members because they think that tomorrow it’s going to be them who are expelled.

CHAIRPERSON: I don’t understand that answer. What does it mean?

MR XABA: We will experience problems inside the organisation whereby people will think that they will be expelled as well. I didn’t want to be the one who always come out with ideas in the organisation.

CHAIRPERSON: I want to understand you quite clearly. You are saying that people, comrades, did not like the idea of expelling people for fear that they might be expelled. You said that, is that right?

MR XABA: I am saying so. I am saying that comrades will think that they will be next to be expelled if I’m the one who comes up with the idea of expelling someone they will misinterpret the situation.

CHAIRPERSON: And so the next best person to do would be, instead of expelling a person, was to kill him?

MR XABA: I didn’t think of expelling him, I took the decision of killing him.

ADV DE JAGER: So in fact you killed a member of your own party?

MR XABA: That’s correct.

ADV DE JAGER: Up to this day you don’t know whether in fact he was a spy or not.

MR XABA: I didn’t make any investigation after this incident.

ADV DE JAGER: You never asked him; Listen why are you doing this, and discussed it with him to find out whether it was the truth indeed?

MR XABA: I’ve never spoken to him before, because he never used to come to meetings. All I knew was that he was a cardholder. He never used to come to meetings.

CHAIRPERSON: The question is not whether he went to a meeting. You never asked him at any stage whether it was correct that he was misleading people, and your answer was no, you didn’t because he didn’t come to a meeting, is that it?

ADV DE JAGER: But on that very day before you shot him you confronted him. Did you ask him; we hear the stories, is it in fact the truth? You didn’t ask him anything, you just proceeded with shooting him.

MR XABA: No I didn’t ask him. He’s the one who asked me if I was there and when I asked him if he know me he said no I wasn’t asking you that I was telling you if you here and I didn’t ask him, I just shot him.

ADV SIGODI: How crucial were the results of the elections to you, how important were they?

MR XABA: It was very important to me. I wanted my organisation to win the 1994 elections. Especially in that area it was very important for me for my organisation to win.

ADV SIGODI: And this area, roughly how many people are there? Do you have an idea how big the population is there?

MR XABA: It’s an area with four chiefs.

ADV SIGODI: And if Mr Baxter had succeeded in misleading the people and have them vote for the wrong person, what did you think would have happened?

MR XABA: This was going to disturb my organisation because most people were going to vote for National Party instead of ANC.

ADV DE JAGER: During August, September, October, they were still negotiating at Kempton Park, they hadn’t reached an agreement yet, isn’t that so?

MR XABA: Yes.

ADV DE JAGER: So at that stage the election wasn’t imminent yet. They hadn’t even reached an agreement to write a new Constitution, they were still busy negotiating.

MS PATEL: Sorry, Honourable Committee Member. I believe that at that stage the elections, the fact that elections were going to be held was already settled.

ADV DE JAGER: Yes it was settled that there would be an election during the next year.

CHAIRPERSON: A decision to hold an election may have been taken, but when did the elections take place?

MS PATEL: In April of the following year, but arrangements had already started being made with various political parties months prior to that period. In fact, if my memory serves me correctly, the Independent Electoral Commission had already been constituted by that time.

ADV DE JAGER: They finally agreed on the New Constitution hearing, the end of November. I think there was a session of parliament in the first week of December at that stage.

But I’m just putting it to you that at that stage the election was not imminent yet, the parties were still negotiating. Can you remember it so, or not?

MR XABA: I do remember very well some members of the ANC left for Kokstad to train for voter’s education so that they come back and train the community. The person who was responsible, that was Mr Dodge from Kokstad.

ADV DE JAGER: Where’s your hometown in fact where you stayed and where your family stayed at that time?

MR XABA: Near Creighton.

ADV DE JAGER: Greytown?

MR XABA: Creighton.

ADV DE JAGER: So you were not canvassing in your own area, you only went to this area, Mount Ayliff, during end of July, beginning August, thereabouts?

MR XABA: I went there because I was escaping from police, so I went there to canvass for ANC.

CHAIRPERSON: Is there any evidence that at that time voting papers were ready showing where crosses must be marked against which name, and who the candidates were? Is there any evidence in that regard, that long before the date for the elections were fixed, in August/September, voter’s papers were ready? Because I find that impossible to believe, that at that stage it was possible for anybody to tell anybody where they must put their cross marks, against which name.

MR WILLS: Mr Chairperson, I agree that obviously that’s a crucial bit of information that needs to come out to solve this matter. My own recollection is that the voter education started some time, a long time prior to the election, however I can’t be too sure exactly when it is. But I suggest that can be ascertained fairly easily by contacts to the Independent Electoral Commission, and I can undertake to do that, possibly even over lunchtime.

CHAIRPERSON: Well I think ...(indistinct) going to do that, because the story falls if this question of a voter’s roll not being present, as to where crosses should be made against de Klerk’s name or Mandela’s name, and so on. This story - if we had not reached that stage, then this entire story is a fabrication.

ADV SIGODI: With respect, Chairperson, I would like to clarify the way I understood it from the applicant. He never said there were, the ballot papers were out ...(intervention)

CHAIRPERSON: He said he had voting papers which he took home and put them away.

MS PATEL: No, sorry Honourable Chairperson, he said pamphlets. He referred to pamphlets, not the actual voting papers.

CHAIRPERSON: Well I’d like that cleared up.

MS PATEL: Certainly, Honourable Chairperson.

CHAIRPERSON: ...(indistinct) thank you very much. ...(indistinct) move from there.

CHAIRPERSON: Are you calling any other witnesses?

MR WILLS: Mr Chairperson in view of my colleague’s insistence that this motive did not exist, I ask for an adjournment at this stage, because I am going to call, I am going to attempt to call the witness who made the statement to the Truth Commission investigator, because obviously he supports my client’s version to an extent and he might be able to clear up certain of the other aspects relating to this issue. That is, the person Z. Gwebani, who made the statement on the 17/6/1998, obviously when the applicant was in prison.

I’m also going to endeavour to get some of the other person who were on the committee at that stage. I don’t know their whereabouts. I apologise for the fact that I’m have to delay, well requesting to delay, the proceedings, but up until this point in time I really didn’t know the extent and the ambit of my learned friend’s opposition, and I think in fairness to the applicant, that should this, should witnesses come and give testimony which support the applicant’s position, well then obviously that would be in the interests of justice and the interests of the procedures that the committee actually hear that evidence. And I also will undertake to establish in that interim period the issue as regards the ANC position as regards voter education, and possibly call a witness in that regard.

CHAIRPERSON: Yes, Ms Patel I would like you to investigate, or be part of this investigation, so that we have a proper picture of precisely what was happening in August/September.

MS PATEL: Yes I will certainly assist my learned colleague, thank you Mr Chairperson.

CHAIRPERSON: The offence was in fact committed when?

MR WILLS: 3rd of November 1993, Mr Chairperson.

CHAIRPERSON: You will find out when the dates for the election were fixed. ...(indistinct).

ADV DE JAGER: Mr Chairperson I think during November, the first week of November it might have been fixed already.

CHAIRPERSON: Do you have any objection to this matter being postponed?

MR SHAW: Mr Chairman, if it’s in the interests of justice, obviously not.

ADV DE JAGER: You think that you will be able to call the witness during this week still?

MR WILLS: Mr Chairperson, Honourable Member, it’s very difficult for me to say. I’ve never met the individual concerned. The only inkling I’ve had of his testimony is this issue relating to the, I mean that’s in the affidavit. That’s all I know about him. I can probably, what I would be able to do is to be in a position fairly quickly, within a day or so, to be able to find out where he is and then I’d be able to advise the Committee, but I believe the committee is sitting here most of the week and I would imagine that we should, Mount Ayliff isn’t far from here, we should be able to get somebody before the end of the week, and if I could just liaise with the Evidence Leader in that regard.

CHAIRPERSON: Well, this matter will stand down to be dealt with at a convenient stage during this week.

MS PATEL: Honourable Chairperson, perhaps we should ascertain Mr Shaw’s availability for the rest of the week.

CHAIRPERSON: Mr Shaw hasn’t raised any difficulties about his availability up to now.

MR SHAW: Mr Chairman, I think the witness Gwebani can be contacted through the offices of the Mount Ayliff TLC.

CHAIRPERSON: Every attempt will be made to do that as soon as possible.

MR SHAW: I’m due to be in Umtata from tomorrow for the rest of the week, but if I’m given adequate notification of a day or two I can certainly make it back here.

CHAIRPERSON: Thank you very much. We will contact you before we set the matter down, at an appropriate date this week, but I would like the other matter to be cleared up. I want to find out when was the date fixed for the elections, and when were voter’s papers ready for the elections for people to know where to mark their crosses.

MR WILLS: Sorry, Mr Chairperson, I would like to be clear on that. I think that has been alluded to by both the Honourable Committee Member and the Evidence Leader, that is that, my recollection of the evidence is clearly that he was referring to documents relating to voter education generally and not specifically to any other form of papers. I think as well Mr Chairman, with respect, that the ballot, the actual ballot papers and things like that were, came out much, much later, closer towards the election.

CHAIRPERSON: So early in August or September he was, Baxter was able to tell people not to make a cross against Mr Mandela’s name but to make a cross against Mr de Klerk’s name. ...(indistinct).

MR WILLS: Mr Chairperson, as long as we’re not dating the specific types of paper. It revolves around the development of the whole election process, and we’ll endeavour to show, to give evidence in that regard, which will satisfy you.

CHAIRPERSON: Very well, this matter will stand adjourned and will be mentioned at a convenient time this week and Mr Shaw will be given adequate notice. Thank you very much.

We will adjourn now and resume at ...(indistinct)

COMMITTEE ADJOURNS

MS PATEL: The next matter on the roll today is that of S.B. Dladla, application number 3487/96.

MR SAMUELS: I appear on behalf of the applicant Honourable Chairperson. My name is Samuels, first name Sivin.

CHAIRPERSON: Are you calling the applicant?

MR SAMUELS: I do.

CHAIRPERSON: ...(indistinct)

INTERPRETER: The speaker’s microphone is not activated.

CHAIRPERSON: Will you please stand. Are you prepared to take the oath in this matter, to tell the truth?

S B DLADLA: (sworn states)

CHAIRPERSON: You may sit down. Proceed.

EXAMINATION BY MR SAMUELS: Thank you Honourable Chairperson. Mr Dladla, what is the date of your birth?

MR DLADLA: 1970, March the 3rd.

MR SAMUELS: Where were you born?

MR DLADLA: I was born in Estcourt.

MR SAMUELS: Are you applying for amnesty in relation to the death of Mr Mkhize, is that correct?

MR DLADLA: In relation to the death of Mr Madisela.

MR SAMUELS: I beg your pardon. And when did this death take place?

MR DLADLA: In 1993, in October. I’m not too sure of the day or the date.

MR SAMUELS: Were you sentenced to prison for this offence?

MR DLADLA: Yes.

MR SAMUELS: What sentence did you receive?

MR DLADLA: They gave me, I was sentenced to eight years.

MR SAMUELS: And what was the date of your sentence?

MR DLADLA: That happened in 1994, the month of November.

MR SAMUELS: Were you involved in the killing of the deceased, relating to the case that you got your sentence?

MR DLADLA: Yes, it is so because I am here to apply for amnesty.

MR SAMUELS: Now what political party do you belong to?

MR DLADLA: I am IFP.

MR SAMUELS: How long have you been a member of the IFP?

MR DLADLA: Since my youth days. My parents were IFP members.

MR SAMUELS: Does your father hold any special position in the IFP?

MR DLADLA: Yes, he held position.

MR SAMUELS: What position was this?

MR DLADLA: He was a leader of IFP in Estcourt from, in my speculation I think, he was a leader of IFP in Estcourt in Wembezi.

MR SAMUELS: Estcourt and ?

MR DLADLA: Well this would be a residential area of Estcourt. That’s where he was based as a leader of IFP.

CHAIRPERSON: How do you spell that?

MR DLADLA: W E M B B 

MR SAMUELS: If I may help, Honourable Chairperson, it was part of his application forms. It mentions Wembezi, W E M B E Z I.

CHAIRPERSON: Thank you, carry on.

MR SAMUELS: Did you hold any special position in the IFP?

MR DLADLA: I was a youth leader of the IFP.

ADV DE JAGER: A leader or an organiser?

INTERPRETER: The speaker’s ...

ADV DE JAGER: Were you an organiser or a leader?

MR DLADLA: I was a leader, of the youth league.

MR SAMUELS: Now, were other members of your family also members of the IFP?

MR DLADLA: Yes, that’s correct. I also have with me here some identity ...

INTERPRETER: It looks like a newspaper cutting.

MR SAMUELS: Are you referring to your newspaper cutting which relates to the political guests of your brothers.

DLADLA: Very true.

MR SAMUELS: Would you like to hand that exhibit to the Members of the Committee in the meantime? Is it correct that your brothers died after this incident?

MR DLADLA: Yes that’s correct.

MR SAMUELS: Whilst you were in prison? Whilst you were serving your prison sentence?

MR DLADLA: Yes.

MR SAMUELS: Who is suspected of having killed your brothers?

INTERPRETER: Suspected of having killed who?

MR SAMUELS: His brothers, his late brothers.

MR DLADLA: There was another inmate and we were together talking with other inmates in prison, and we were discussing about that issue to an extent that we mentioned that they were the ones who were behind this incident.

MR SAMUELS: Which political party do you suspect of being responsible for our brothers’ death?

MR DLADLA: ANC.

MR SAMUELS: Now, let’s get to the day in question, when this, the killing, occurred. The killing of the deceased. Where were you heading to on the day in question?

MR DLADLA: We headed for Ulundi to some conference that was taking place there. IFP conference that is, or meeting.

MR SAMUELS: How were you travelling?

MR DLADLA: We were travelling in busses.

MR SAMUELS: And did this bus contain only IFP supporters.

MR DLADLA: Yes, IFP members were in the bus, all of us that is.

MR SAMUELS: Previously when you travelled to IFP meetings and conferences did you experience any difficulty along the way?

MR DLADLA: Quite often we did encounter difficulties. It was usual for us to encounter things like attacks on our ways, or on our way to such meetings or conferences of the organisation.

CHAIRPERSON: Who do you believe was responsible for these attacks?

MR DLADLA: None other but ANC. ...(no English interpretation) they were the ones behind it. ANC.

MR SAMUELS: And why do you believe that the ANC were attacking IFP people on the way to these meetings?

MR DLADLA: It is because they were the ones we were fighting against from the onset, and even in Estcourt it was public knowledge that we were fighting against them, and they were in particularly, or particularly, fighting the family of Dladla.

MR SAMUELS: Did you attend any meeting where these attacks were discussed?

MR DLADLA: Yes, I attended such meetings. Each time there would be an IFP meeting I’d make sure that I am in attendance.

MR SAMUELS: Did the leaders address the question of the attacks on IFP members coming to the meeting? The leaders of the IFP, address this at the meetings?

MR DLADLA: Yes that was discussed or addressed.

MR SAMUELS: What was the advise or directive that the leaders gave to the IFP members?

MR DLADLA: It was suggested that if there would be any people who want to attack the group it would be only ideal for us to attack back as well. We shall be at all times alert of how we would defend ourselves and attack back, or launch counter-attacks if necessary.

MR SAMUELS: Now on the day in question, what happened? What made ... I withdraw that question, Honourable Chairperson. Did anything happen that caused concern on the day in question?

MR DLADLA: Yes.

MR SAMUELS: What was that?

MR DLADLA: When we leave as members of the IFP we leave to a meeting we will be attacked spontaneously and unaware.

CHAIRPERSON: No the question is, on the day in question what happened?

MR DLADLA: Please repeat your question.

CHAIRPERSON: On the day of the killing of Mr Madisela, what happened before he was killed?

MR DLADLA: You mean what happened prior to the incident? What do you mean by saying what happened before his death, or before we killed, or he was killed.

INTERPRETER: The speaker’s microphone is not activated.

ADV DE JAGER: Did you, wanted to go somewhere? Did you hire a bus? Did somebody do anything to you?

MR DLADLA: I’m with you now. When we were in the bus, just before we took off, it was at night, we saw a car approaching when we were inside the bus, and as the car approached, it was coming from downward, approaching to where we were, and it switched off the lights. As soon as that happened we heard sounds of gunshots and we disembarked from the bus and we realised immediately that we are being attacked here and we decided also to launch a counter-attack, and to attacked there can be found a person inside that car.

MR SAMUELS: When you say we disembarked from the bus, how many people are you referring to?

MR DLADLA: This is a hypothetical figure, it would be around ten of us who got off the bus. It was at night, another thing, I would not be in a position to furnish beyond reasonable doubt the number of the people who got out of the bus.

MR SAMUELS: Were these all males who got off the bus?

MR DLADLA: Very true.

CHAIRPERSON: Where did you go to when you got out of the bus?

MR DLADLA: We instantly attacked the car that was approaching.

MR SAMUELS: Now in this bus, were there only males, or were there women and children as well?

CHAIRPERSON: ...(indistinct)

INTERPRETER: The speaker’s microphone is not on.

CHAIRPERSON: Take that picture to it’s logical conclusion before you go back to say now who was in the bus. Alright?

MR SAMUELS: Thank you Honourable Chairperson.

CHAIRPERSON: Now, you attacked the car that was approaching?

INTERPRETER: The speaker’s microphone is not activated.

CHAIRPERSON: Was the car stationary when you got to it?

MR DLADLA: No it was not stationary when we got to it. It was moving, but slow, trying to take a U-turn.

CHAIRPERSON: Who was in the car?

MR DLADLA: As he was trying to take a U-turn he kept shooting. He got off the car, the person I’m referring to who was in the car, got off the car and tried to escape.

ADV SIGODI: Sorry Miss Interpreter, I don’t think I understood it that way. Let’s get some clarity here. You say that this car was approaching and it was moving in a slow motion?

MR DLADLA: Yes.

ADV SIGODI: It was trying to make a U-turn?

DLADLA: Yes.

ADV SIGODI: Then I would imagine that there was another person who was outside the car, did I hear you correctly?

MR DLADLA: I was saying, as soon as the lights of the car were switched off and on again, that’s when the person got off the car, because the car was trying to take a U-turn and he got off the car. I think he was already out of the car when we were attacking because we were attacking the car trying to take a U-turn and that’s where we discovered the late, or the deceased.

MR SAMUELS: The question I asked is how many people were in the car?

MR DLADLA: It was at night, I think there were two because the other one was already outside. Since it was dark I was not in a position to see exactly as to what was happening with the situation in the car.

MR SAMUELS: So you told us the other one was already outside. Was there someone inside the car?

MR DLADLA: Yes, the deceased was in the car.

MR SAMUELS: Where was he seated?

MR DLADLA: He was seated on the driver’s side.

MR SAMUELS: When you attacked this car, did the deceased try to do anything?

MR DLADLA: The way I observed the car it was trying to take a U-turn, and they got hold of him right away and we were quite many in numbers and I wouldn’t have known everybody I was with because all of us was well aware and

ADV DE JAGER: Did you get hold of the driver while the car was making the U-turn?

MR DLADLA: Yes.

ADV DE JAGER: Who got hold of him? You yourself or one of your companions?

INTERPRETER: Please repeat your question.

ADV DE JAGER: Who got hold of the driver? Was it the applicant or was it one of his companions or more of his companions?

MR DLADLA: By the time I got there he was, they had already gotten hold of him by the time I reached the point because I was behind in the bus so I was not one of the first ones who got off the bus.

ADV DE JAGER: Did they drive him out of the car or did he remain sitting in the car?

MR DLADLA: By the time I got there he was already outside and the door of the car was wide open.

ADV SIGODI: Miss Interpreter, please he also, please interpret everything, because he said that they got him whilst he was in the car and then, could you repeat what you’ve just said. You left out something here.

MR DLADLA: When I got there they were already dragging him outside and the door was opened.

MR SAMUELS: Now when you say they were dragging him are you referring to the people who were in the bus with you?

MR DLADLA: We were many, and we, I have about, I have another co-accused in this case and other were released or discharged, and ...(intervention)

MR SAMUELS: Please listen to the questions carefully. I’m not asking you for long answers of the questions. You listen to it carefully you’ll understand that I’m asking you for a short answer. Please answer the question and listen to it carefully. So you confirm that the people who had got to the deceased first were the people in the bus with you, and they were dragging Madisela out of the car?

MR DLADLA: Yes.

MR SAMUELS: Besides dragging him, did you see anyone assaulting the deceased?

MR DLADLA: Yes they were assault, by the time I got there they were assaulting him.

MR SAMUELS: Who did you see assaulting the deceased, and how did you see them assaulting the deceased?

MR DLADLA: Since ...(indistinct) name, and I have other co-accused, I saw the co-accused.

MR SAMUELS: What was his name?

MR DLADLA: Masoga Ndaba.

MR SAMUELS: Now what did he do?

MR DLADLA: They were assaulting him and I also contributed with the weapon I had in my possession.

CHAIRPERSON: Alright, just let’s clear it up. When you came there they were dragging him out and they were assaulting him?

MR DLADLA: Yes.

CHAIRPERSON: How were they assaulting him?

MR DLADLA: Yes they were stabbing him with the weapons they had in their possession, and when I arrived that’s what was happening and I joined them in assaulting him.

CHAIRPERSON: What were they stabbing him with?

MR DLADLA: They were assaulting him with spears. We had spears in our possession. We had spears and sticks in our possession, it’s traditional weapons maybe, so to speak.

CHAIRPERSON: And what weapon did you have?

MR DLADLA: I had a stick and a spear.

CHAIRPERSON: And what happened when you assaulted him, all of you?

MR DLADLA: When I got there they were assaulting him and I joined them and I sustained injury on my right arm,

INTERPRETER: As he is demonstrating, the applicant that is. He is pointing.

CHAIRPERSON: Show me.

MR DLADLA: And I was injured by one of the police here.

CHAIRPERSON: Hold it. You sustained an injury to your right arm, and just below the left collarbone?

MR DLADLA: Yes. By ...(indistinct)

CHAIRPERSON: How did you get hurt?

MR DLADLA: The way the whole thing was ungovernable. That’s how I sustained this injury and by mistake one of my colleagues turned around and I was the one who became the victim of that ...

CHAIRPERSON: You were injured by one or other of your colleagues?

MR DLADLA: Yes, that’s true.

CHAIRPERSON: What happened to the deceased?

MR DLADLA: I saw the deceased lying down.

CHAIRPERSON: And when he was lying down on the ground was anything being done to him?

MR DLADLA: No, immediately after I sustained this injury I went back to the bus.

CHAIRPERSON: My question is not what you did. My question was, was anything done to the deceased when he was lying on the ground?

MR DLADLA: No, not that I saw.

CHAIRPERSON: Was the deceased bleeding?

MR DLADLA: After I sustained this injury I never took notice of anything which was going on, I immediately went back to the bus so that I would not be in a position to say yes or no he was bleeding.

CHAIRPERSON: And what happened after you got back to the bus?

MR DLADLA: The bus was still there where it was parked. I got inside and slept. One of my colleagues helped me dress the wound.

CHAIRPERSON: Yes, carry on.

MR SAMUELS: You told us that you attacked the deceased with a, did you say you attacked him with a spear?

MR DLADLA: Yes.

MR SAMUELS: How did you attack him with the spear, and whereabouts on his body did you attack him with the spear?

MR DLADLA: I stabbed him once to the chest and immediately I sustained an injury then I took a right about turn and went back to the bus.

MR SAMUELS: Now, the other person whom you say was outside the car, what happened to him?

MR DLADLA: The one was outside the car, I only saw her in Court the first time. As for that day I did not even realise as to whether she was, the person was a female or a male. I only discovered that in Court.

CHAIRPERSON: So what happened to the female that was there?

MR DLADLA: She fled, into some houses nearby. Then we let go of her. I was already in the bus when all of that was happening.

MR SAMUELS: Now let me take you back a little. You say in this bus, well you didn’t tell us, were there only men in this bus or were there men, women and children?

MR DLADLA: In the bus I think there were only two or three women of the IFP and the majority was the youth and the leader of the males, and men, so it was a combination of males, or men and the youth ...(indistinct) with only about two or three women.

MR SAMUELS: Now when you heard this gunfire, what did you expect was going to happen?

MR DLADLA: When we heard the gunshot it went without saying it was that we were being attacked and we have to rise and do something.

CHAIRPERSON: Do you know where the gunshots came from?

MR DLADLA: It was very loud for starters, and the way I perceived this whole thing it was in such a way that this gunshot was emanating from the car, the approaching car, and thus we attacked.

MR SAMUELS: You said something about the lights of this motor vehicle that was approaching. Can you repeat that for us?

MR DLADLA: As the car was approaching, the bus was ready to take off, and that’s when the car approached. As the car approached suddenly the lights were switched off. That’s when we heard the gunshot, and we attacked immediately.

MR SAMUELS: What political objective were you trying to achieve by attacking the people in the car?

MR DLADLA: We were trying to make a statement that each time we are being attacked by the ANC people we are also in a position, or we will be also in a position to defend ourselves, and the followers or sympathisers of IFP.

MR SAMUELS: The family of the deceased are here. Do you want to say anything to them about your actions?

MR DLADLA: Yes.

CHAIRPERSON: Yes, what is it you want to say?

MR DLADLA: I would like to apologise for the action that I executed ...

INTERPRETER: The interpreter could barely hear the applicant as he was talking.

MR SAMUELS: Do you want to have some water Mr Dladla and repeat what you said, because the interpreter didn’t actually hear you. Can you repeat what you said to the family so that the interpreter can interpret that.

MR DLADLA: Yes. I would like to forward my apologies to the family. Because of the circumstances that earned the situation that prevailed at this time I found myself conducting myself in the manner which I did, and I do regret a great deal for the actions that I took, and they were people that were living together, that’s a well-known factor, and I would like for them to accept my apology. God will bring a person on earth and there will come a time again when God takes that person away from the world.

CHAIRPERSON: Did you know the deceased?

MR DLADLA: Yes, I knew him. It’s only because it was dark at night that day, and we were many, I was with my colleagues or my friends.

CHAIRPERSON: What did you know about the deceased?

MR DLADLA: I know the brother, or the elder brother, to the deceased, and I heard he was working at Convoy.

CHAIRPERSON: Had you had any personal argument with the deceased on any occasion in the past?

MR DLADLA: Not at all. I will say this merely happened because it was dark at night and I couldn’t see as to who we were fighting against.

CHAIRPERSON: And was a gun found in the car?

MR DLADLA: That I did not see.

CHAIRPERSON: Did you hear whether a gun had been found?

MR DLADLA: No, I never heard that.

CHAIRPERSON: Is it possible that the sound that you heard which sounded like a gun was a sound that could have been made by the exhaust of the motor car?

MR DLADLA: The sound of the gunshot was indeed a gunshot, and we were scared now because we’ve had experiences in the past to this effect, that we will be on our way to our meetings or conferences and we will encounter attacks.

CHAIRPERSON: Ms Patel?

CROSS-EXAMINATION BY MS PATEL: Mr Dladla, you’ve stated that you know the elder brother of the deceased.

MR DLADLA: Yes.

MS PATEL: Did you know any other, did you have any other personal information about the deceased during that time?

MR DLADLA: No.

MS PATEL: Do you know whether the brother is an IFP or an ANC member?

MR DLADLA: Even ‘though I did not know as to which organisation he belonged I knew one thing about him, that he was a station commander of Estcourt.

MS PATEL: Why did you state in your application, if you didn’t know anything about the deceased, that the victim was a leader of the ANC organisation?

For the record, Honourable Chairperson, page 2, paragraph 9(c)(4).

Where did you get this information from?

ADV DE JAGER: How did you know he was an ANC member, or didn’t you know?

MR DLADLA: The lady who came, or the woman who came to the Court, she belonged to ANC, in Zwelitsha.

MS PATEL: I’m sorry, many females testified at the hearing. Which lady are you referring to now?

MR DLADLA: I am referring to the one who was in the car at the time of this incident.

ADV DE JAGER: What’s her name?

MR DLADLA: I forget her name, this happened long time ago. I have forgotten many people and their names thereof. I know her facially though.

MS PATEL: And you saying that she testified to the fact that she was an ANC member?

MR DLADLA: Yes.

CHAIRPERSON: Did she say that in Court.

MR DLADLA: Yes, she said that in Court.

MS PATEL: The Judge in his judgment has made no reference as to the political affiliation of the woman who you referred to. Her name is Nomatemba Khumalo

MR DLADLA: Yes.

MS PATEL: In fact, all that she testified to was that she had gotten a lift from the accused, I beg your pardon, from the deceased, on that day.

MR SAMUELS: Sorry, Honourable Chairperson, I don’t think my learned colleague is entitled to put that as a fact because we don’t have a record of her evidence. We have got only the Judge’s summary of her evidence, so there could be quite a substantial difference between the actual evidence testified to in Court and the ...(intervention)

CHAIRPERSON: ...(indistinct) Magistrate’s summary, yes. So it would be incorrect to say that all that she testified to was ...(intervention)

CHAIRPERSON: According to the Magistrate’s Judgment?

MR SAMUELS: Yes, that is correct Honourable Chairperson.

MS PATEL: Thank you Honourable Chairperson.

CHAIRPERSON: Yes, what did the Magistrate ...(indistinct)

INTERPRETER: The speaker’s micro