AMNESTY HEARING

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ON RESUMPTION:

CHAIRPERSON: Today we are starting with the application of Mr Vusi Sidney Mononi, application number AM7913/97. The panel consist of myself, Judge Khampepe, on my right hand side, Adv F. Bosman, on my left hand side, Mr Ilan Lax. Who is appearing for the applicant?

MR LEOPENG: Thank you Madam Chair. I am Leopeng P.M., I am appearing on behalf of the applicant.

CHAIRPERSON: Thank you. The Evidence Leader?

MS THABETE: I am Thabile Thabete, the Evidence Leader for the TRC.

CHAIRPERSON: Mr Leopeng, are we in a position to commence?

MR LEOPENG: Yes, Madam Chair, we are in a position to commence.

CHAIRPERSON: May we for the benefit of the members of the public, indicate that English is to be found in channel 2, Zulu, channel 3, and Shangaan in channel 4. Thank you very much. Mr Leopeng?

MR LEOPENG: Thank you Madam Chair.

CHAIRPERSON: Is Mr Mononi going to take an oath?

MR LEOPENG: Yes, I was going to indicate that I am not in a position to hand in a supplementary affidavit, I am just going to lead viva voce evidence of the applicant, Mr Mononi.

CHAIRPERSON: Yes. Mr Mononi, will you please rise?

VUSI SIDNEY MONONI: (sworn states)

CHAIRPERSON: You have been duly sworn in, you may take a seat. You may proceed Mr Leopeng.

EXAMINATION BY MR LEOPENG: Thank you Madam Chair. Mr Mononi, you are the applicant in this application for amnesty and you are now serving a term of imprisonment at Medium C, Johannesburg prison, is that correct?

MR MONONI: Yes, that is correct.

MR LEOPENG: Is it further correct that on the 19th of April 1996, and at Witwatersand Local Division, you were convicted murder and five other charges and you were sentenced to an effective period of 24 years imprisonment?

MR MONONI: Yes, that is correct.

MR LEOPENG: Now Mr Mononi, on or before the incident that is the 4th of August 1993, to which political party did you belong?

MR MONONI: The ANC. The ANC.

MR LEOPENG: Which offices did you hold within the ranks of the ANC?

MR MONONI: I was a member and I was a sub-branch Organiser within the ANC Youth League and also a supporter of the SACP and I was a Commander of the Self Defence Unit.

MR LEOPENG: You mentioned that you were the Commander of the SDU's, did you - were you trained to be a Commander of the SDU's and if so, when?

MR MONONI: I underwent crash courses inside the country.

MR LEOPENG: Who were your trainers during that training?

MR MONONI: Rivert Mkhize, Veli Khumalo and other MK members who had been trained outside the country.

MR LEOPENG: Now let's turn to the day in question, that is the 4th of August 1993. Very briefly, tell the Committee what happened.

MR MONONI: We were patrolling with other comrades on that day, patrolling at Mandela Village and it so happened that as we were patrolling, we came across two uniformed policemen and we approached these two policemen.

We were armed with firearms, a Makarov pistol, a 38 Special and well as a palm gun and two hand grenades. I was in possession of a Makarov pistol at the time.

MR LEOPENG: What were the reasons for you to patrol?

MR MONONI: Mandela Village was such that the people thereof were attacked by the members of the IFP and the vigilante groups and they were also harassed generally by the police, so that we had to protect the people against these things.

MR LEOPENG: On that day when you were patrolling, did you have instructions from above for you, to allow you to patrol the Mandela Squatter Camp?

MR MONONI: Yes. We received instructions.

MR LEOPENG: From whom and what rank was he?

MR MONONI: The person in charge that day was comrade Winki.

MR LEOPENG: So, are you saying that Winki is the person who gave you instructions to go and patrol the Mandela Squatter Camp?

MR MONONI: Yes, that is correct.

MR LEOPENG: Yes, proceed from where you said that you were armed with these firearms, and you met the two police officials.

MR MONONI: It so happened that we were deployed around the entrance of Mandela Village. These two policemen in uniform arrived and we at the time, happened to go to them. We pointed our firearms at them, and instructed them not to fight because we only wanted their firearms.

MR LEOPENG: You said we, who do you refer to when you say we?

MR MONONI: There were five of us, it was myself and other four comrades, comrade Winki, comrade Nyao Daniel and comrade Pat as well as Xolani.

CHAIRPERSON: Will you please repeat the names again.

MR MONONI: Winki, Daniel, Pat as well as Xolani. Myself included.

MR LEOPENG: So among five of you, who was your Commander or the Unit Commander?

MR MONONI: Comrade Winki was in charge.

MR LAX: Sorry Mr Leopeng, sorry to intrude. My arithmetic implies that there were six of them. He has given us five names plus himself? Winki, Nyao, Daniel, Pat, Xolani and himself?

MR MONONI: Daniel and Nyao are one person.

MR LAX: Okay. That is helpful, thank you.

MR LEOPENG: Thank you. Proceed from where you said you met these two police officials and you told them you are not fighting with them, and that they must hand their firearms to you.

MR MONONI: It so happened that one of the police threw himself to the ground and the other one, tried to fight Xolani who was in possession of a palm gun, he was trying to grab the palm gun and a shot was fired in the process. I saw him later on laying on the ground, having been shot.

We took the firearm and we fled, his service pistol.

MR LEOPENG: So is that your evidence that the police official who was shot, was shot by a bullet which was fired from the firearm which was in possession of Xolani?

MR MONONI: Yes, that is correct.

CHAIRPERSON: Isn't that leading Mr Leopeng? Isn't that a leading statement? You have not established that evidence. Ask an appropriate question that will not be leading, but which will nevertheless enable him to give that kind of evidence.

MR LEOPENG: I beg your pardon, Madam Chair.

Just tell this Committee actually what killed the said police official?

MR MONONI: It so happened that as they were wrestling over the firearm, a shot went off and the police fell.

CHAIRPERSON: Who was wrestling with who? You say it so happened that as they were wrestling, who is he referring to?

MR MONONI: I am referring to Xolani and this other one policeman who happened to be shot later on.

CHAIRPERSON: Did you witness the whole incident?

MR MONONI: I only saw this other police falling on the ground after the shot went off. He apparently was shot on the chest.

CHAIRPERSON: Did you witness the wrestling?

MR MONONI: Yes, because after comrade Xolani pointed the firearm at him, at the police, the police tried to grab the firearm.

CHAIRPERSON: You may proceed.

MR LEOPENG: Thank you Madam Chair. After you noticed the said police official falling down with a gun wound, what happened thereafter?

MR MONONI: After that, one of our comrades took his firearm and we fled. The other police managed to flee uninjured.

CHAIRPERSON: Won't you try when you give your evidence, because there were only five of you, won't you try instead of referring to a person as a particular, I mean as one comrade, just mention his name. Will you do that as you give your evidence?

MR MONONI: The one person I am referring to here, is Pat. He is the one who took the firearm from the police who had fallen down.

MR LEOPENG: Thank you Madam Chair. After you fled, then what happened? What happened to the firearm which one Pat took from the police official who fell on the ground?

MR MONONI: We took the firearm along because our intention was to get the firearm.

MR LEOPENG: Why do you say that your intention was to get the firearm, what prompted you to go and look for the firearms?

MR MONONI: We were trying to gather weapons for the defence of the people, weapons such as firearms, so that our strategy as SDU's was to disarm the police.

MR LEOPENG: You said your strategy was to disarm the police. What were you going to do with these weapons that you disarmed the police officials of?

MR MONONI: We were going to use the firearms to defend the community against attacks by Inkatha and vigilantes and other people who were troubling the community.

MR LEOPENG: Was your action to disarm the police official, authorised by the Overall Commander of the SDU's?

MR MONONI: Yes, that is correct because the idea was to reinforce within the structures of the SDU's.

MR LEOPENG: If I just for a while go back to the evidence that you had given, you said that on that day you were patrolling in the Mandela Squatter Camp, so are you telling this Court that during the patrol, you deemed it necessary to disarm the police official, or that was within your instructions again during the patrolling?

MR MONONI: It was an order that had already been issued, that if we happened to see policemen in the area, we should disarm them to reinforce.

MR LEOPENG: Where did this order come from?

MR MONONI: This order was issued by comrade Winki who was in charge for the patrols on that day.

MR LEOPENG: If I go back, who was this comrade Winki that you are referring to, was he an ANC member or what was his rank within the ANC if I may just ask you?

MR MONONI: He was a member of the ANC as well as a member of MK. He was a Commander of the Unit within the structures of the SDU's.

MR LEOPENG: So he was your superior, you were under his command on that day, to patrol and to disarm the police officials, is that correct?

MR MONONI: Yes, that is correct.

MR LEOPENG: Now tell this Committee, what was your political objective that you wanted to achieve during the patrol and during the process of disarming police officials?

MR MONONI: Our objective was to augment on the firearms that we had, so as to be able to defend the community against the IFP and the vigilante attacks.

MR LEOPENG: Was the ANC office in Diepkloof aware of the activities of the SDU's and the command of comrade Winki regarding the patrolling and the disarming of police officials?

MR MONONI: Yes, that is correct.

MR LEOPENG: You said in your evidence that your intention was to disarm the said two police officials. Did you intend during the patrolling or during the process of disarming to kill anybody in disarming the police officials?

MR MONONI: No, our objective was not to kill. We were just intent on robbing them of their firearms.

MR LEOPENG: Are you now telling this Committee that you are sorry that the deceased died during your ...

MR LAX: Mr Leopeng, please try and contain your leading. He hasn't said anything about what he feels or thinks about this matter. You are putting words in his mouth.

MR LEOPENG: I beg your pardon. What do you feel about the whole incident on the 4th of August 1993?

MR MONONI: It makes me feel sad. Our intention was not to kill, but to get the firearms. That so happened and I don't feel good about that.

MR LEOPENG: Now tell us, what happened to the other four comrades that you are referring to, that is Nyao, Pat, Xolani and Winki?

MR MONONI: After the integration, comrade Winki was now stationed here in Johannesburg where he was a policeman, he died last year. Other comrades ended up joining the army and others are still around.

MR LAX: Can you be a little bit more specific? I think that is what your Counsel is wanting you to do.

Who did what and where are they today?

MR MONONI: Winki died last year. He was a police. Pat is in the army, I don't know where he is stationed. I have lost contact with comrade Xolani, Daniel is still around.

MR LEOPENG: And what about Pat?

MR MONONI: Pat is in the army.

MR LEOPENG: Tell us briefly, what active role did you play during the disarming of the said two police officials at which one died?

MR MONONI: I was part of the whole thing. I was armed with a pistol, but after this Peter took the firearm and we fled.

MR LAX: Sorry, who is Peter?

MR MONONI: Pat.

MR LAX: Thank you.

MR LEOPENG: So that day your role was that you were armed and you opposed these two officials, is that the only thing that you did?

MR MONONI: Yes.

MR LEOPENG: Lastly, why - let me rephrase the question, after you achieved the objective of disarming the police official, what were your intentions to do with the said firearm?

CHAIRPERSON: Hasn't that ground already been covered Mr Leopeng, unless you are trying to get new evidence, we already have evidence in that regard. It was to augment the weapons that the SDU had, which they intended to use in order to protect the community against attacks by the IFP and other people, against the community.

MR LEOPENG: Thank you Madam Chair. I will leave the question. How can you justify the act that you committed together with other comrades on the 4th of August 1993?

CHAIRPERSON: Hasn't that been covered by your questions when you questioned him on his political objective?

MR LEOPENG: I beg your pardon, I will also leave that question. I have no further questions.

ADV BOSMAN: May I just before Ms Thabete comes in, just clear something up Madam Chair. Mr Leopeng, if you could just have a look at paragraph 9(a) on page 219, you haven't led any evidence specifically as to which acts your client is applying for amnesty.

Is it that only covered in 9(a)(i)?

MR LEOPENG: Yes, I think so, but let me lead him on that.

CHAIRPERSON: AS you do so, have regard to the sentence which was imposed by His Honourable Justice Levison.

MR LEOPENG: Mr Mononi, you are here before this Committee to apply for amnesty for what act that you committed?

MR MONONI: Yes, that is correct.

MR LEOPENG: What specifically do you apply for? You apply for amnesty for a specific act that you committed on the 4th of August 1993?

MR LAX: Sorry Mr Leopeng, before you tie your client down to a specific thing, amnesty may be sought for an act, an omission, an offence or a delict. He may be applying in respect of offences, he may be applying in respect of acts, we don't know.

I think before you tie your client down to a particular act, maybe just think about the position and then put the question to him.

CHAIRPERSON: Mr Leopeng, have you had an occasion to study the judgement of Judge Levison?

MR LEOPENG: Yes Madam Chair, I did.

CHAIRPERSON: And in the light of that judgement, and in the light of the instructions that you have already obtained from Mr Mononi, you may be able to advise us without having to ask your client in respect of which acts he is seeking amnesty. You may just tell us without having to lead his evidence in that regard.

MR LEOPENG: Well Madam Chair, my difficulty is that as already consulted with the applicant and as already he gave evidence, he is not the one who shot the deceased. He is applying for amnesty for solely the purpose, the common purpose.

CHAIRPERSON: Yes, he was convicted of murder, his evidence is that he was there even though he did not fire a shot that led to the killing of the policeman concerned.

MR LEOPENG: Yes, that is true and that is what he is applying amnesty for.

CHAIRPERSON: Yes, so can you just tell us which acts or offences he is seeking amnesty for.

MR LEOPENG: He is seeking amnesty for the murder and the robbery of the service pistol of the deceased.

MR LAX: He was convicted of attempted robbery, not robbery. If you look at page 38 on the issue of sentence, you will see where he is sentenced in respect of what offences he has been convicted of. It is neatly set out there.

MR LEOPENG: The applicant is seeking amnesty on all offences that he was convicted of.

CHAIRPERSON: And you are aware that he did not confine himself of course, to offences for which he was convicted. He may apply for amnesty in respect of acts or offences for which there was no conviction.

MR LEOPENG: Yes, that is correct.

CHAIRPERSON: Yes. Do you want us to take an adjournment to enable you to apply your mind in this regard?

MR LEOPENG: Yes.

CHAIRPERSON: Yes. Obviously bearing in mind the fact that the reason why he was convicted of attempted robbery, was because on the evidence that was before Justice Levison, there was no indication that the firearm of the policeman who was subsequently killed, not Mr Nkuna, I am trying to get the name of the deceased, Mr Mathonsi, the evidence was that Mr Mathonsi's firearm was not in fact taken by the applicant, and his assailants.

I am just drawing your attention to that fact. We will take a short adjournment and we will reconvene at twenty past eleven. Thank you.

ON RESUMPTION:

VUSI SIDNEY MONONI: (still under oath)

EXAMINATION BY MR LEOPENG: (continued) Thank you Madam Chair. I wish to go back to the question from the panel on specific acts that he committed which he is applying amnesty for.

CHAIRPERSON: Yes.

MR LEOPENG: May I just not lead the applicant therein and just tell the panel on what is he applying for?

CHAIRPERSON: Yes, you may do so.

MR LEOPENG: Thank you Madam Chair. The applicant is applying for amnesty on count 1, that is the count of murder, count 2, attempted robbery, count 3, 4 and 5, unlawful possession of ammunition, shotgun and the hand grenades and also he is applying for amnesty for count 6, which he was not convicted of.

The applicant in his evidence in chief stated that one Pat took the service pistol off the deceased, and he ran away. He still maintains that version, even if he was not convicted of and he is applying for amnesty for that taking of the policeman's service firearm.

CHAIRPERSON: He therefore cannot apply for attempted robbery, is it attempted robbery in respect of the firearm of Mr Nkuna?

MR LEOPENG: Yes.

CHAIRPERSON: And the robbery of Mr Mathonsi's firearm?

MR MONONI: Yes, that is so Madam Chair. He is applying for robbery of that firearm and for the attempted robbery of the firearm of Mr Nkuna.

CHAIRPERSON: Nkuna being the policeman who was not killed?

MR LEOPENG: Yes.

CHAIRPERSON: That being the case, I think your evidence in chief, is lacking in only one material aspect, and that is with regard to where the firearms that were in possession of the applicant and his colleagues, were obtained. You haven't led evidence in that regard and before you close your evidence in chief, we would like to hear you in that regard.

You would have to give us evidence with regard to where the weapons which were in the possession of the applicant and his colleagues, were obtained. Can you do that?

MR LEOPENG: Thank you Madam Chair for your assistance.

Now Mr Mononi, on that day you said specifically, you were armed with a Makarov pistol and the other comrades were armed with hand grenades, pump gun and a .38 revolver. Where did you get such arms and ammunition?

MR MONONI: These were firearms belonging to the Unit, they were given to us by the Commander of the Unit. These were firearms belonging to the community.

MR LEOPENG: Do you have an idea where did the Unit get these firearms which were handed to you on that day?

MR MONONI: Some of the firearms were obtained as a result of the community having raised funds to purchase them and some of these firearms, were obtained by way of disarming the police.

MR LEOPENG: Madam Chair, through your permission, I want to go back to the evidence that he gave regarding the taking of the firearm from the deceased.

You said one Pat took the service pistol belonging to the deceased, where did he take that service pistol off the deceased?

MR MONONI: This firearm, I would say after every operation or mission, we would go back and report to the Commander of the Unit and hand over the firearms.

MR LEOPENG: So are you saying that that firearm was handed to the SDU or the Unit?

MR MONONI: Yes, that is correct.

MR LEOPENG: No further questions Madam Chair. I now close the evidence of the applicant.

CHAIRPERSON: Yes, when he refers to the Commander of the Unit, he is referring to Winki?

MR LEOPENG: When you refer to the Commander of the Unit, are you referring to Winki with whom you were on that day?

MR MONONI: Yes, that is correct.

CHAIRPERSON: Yes, you are now through with your evidence in chief? Are you through?

MR LEOPENG: Yes, I am through. I have one other witness.

CHAIRPERSON: Yes, but before you can do so, I think an opportunity should be given to Ms Thabete the Evidence Leader, to put questions to Mr Mononi about his evidence and an opportunity will then be given to the members of the Committee to put questions to Mr Mononi, whereafter you may then call your further witness to support his application, thank you.

MR LEOPENG: Thank you Madam Chair.

CHAIRPERSON: Ms Thabete, do you have any questions to put to Mr Mononi?

CROSS-EXAMINATION BY MS THABETE: Yes Madam Chair, I do. Before I proceed, I would like to put it on record that I am also assisting the victim, Captain Nkuna in this matter.

CHAIRPERSON: Thank you.

MS THABETE: Mr Mononi, when you approached the policemen, where was the deceased standing, where was he?

MR MONONI: He was standing in front of the place where motor tyres are being fixed.

MS THABETE: Was he standing in front of Warrant Officer Nkuna or was he standing at the back of Warrant Officer Nkuna?

MR MONONI: I cannot recall as to how he was standing in relation to the other.

MS THABETE: My instructions are that Mr Mononi, he was standing at the back of Mr Nkuna when he was actually attacked, but I will move on as we go along with that point.

It is also your evidence that you gave an order that the firearms, they must put down their firearms, is that correct?

MR MONONI: That is correct.

CHAIRPERSON: Ms Thabete, do you mean Mr Mononi or do you mean an order was given by one of his colleagues, you mean he gave the order?

MS THABETE: I was still going to ask him who gave the order. Thank you Madam Chair. Who gave that order that the firearms must be handed over?

MR MONONI: It was Winki.

MS THABETE: Did they hand over the firearms?

MR MONONI: No.

MS THABETE: Did anyone drop their guns down?

MR MONONI: No.

MS THABETE: In your evidence you say that the deceased policeman struggled with Xolani, is that correct?

MR MONONI: That is correct.

MS THABETE: And that is how he was shot, is that correct?

MR MONONI: That is correct.

MS THABETE: Did you actually see or did you actually see the deceased being shot or you heard the fireshot?

MR MONONI: I only heard a gunshot.

MS THABETE: But you didn't actually see the policeman being shot at?

MR MONONI: I only saw him laying down.

MS THABETE: So when you say he was shot in the chest, where do you take that from?

MR MONONI: I saw blood stains on his chest as he was laying down, that is what I am saying.

MS THABETE: Mr Mononi, it is my instruction that Mr Mathonsi as I have stated before, was standing at the back and he was actually shot from the back, right through, I mean ...

MR LAX: Are you trying to say that the entry wound was at the back and the exit wound was in the front?

MS THABETE: Yes, thank you, thank you, I was short of words, yes, exactly. What is your comment on that?

MR MONONI: I would not know what the entry point of the bullet was. I only saw this injury on his chest.

MS THABETE: But it was your evidence that you actually saw this, you witnessed the struggle. Would you know why he was shot at the back maybe?

MR MONONI: No, I would not know because the last time I witnessed this happening, it was when they were struggling for the firearm. I cannot therefore say how he was shot from the back.

MS THABETE: It is also my instructions Mr Mononi, that the deceased never struggled with Xolani, instead what had happened is that the deceased was shot at the back and Captain Nkuna then struggled with one of you, whereupon or whereafter you ran away. What is your comment to that?

MR MONONI: What I can say here is that when we arrived, I ended up or should I say I lastly saw one of these policemen falling down. The other one wanted to grab the firearm from Xolani and that is when the shot went off.

MS THABETE: So are you saying that it is not correct, it is Mr Nkuna who actually struggled with you and not the deceased? Sorry who struggled with Xolani and not the deceased?

MR MONONI: It was the deceased who was struggling with ... (tape ends) ...

CHAIRPERSON: Are your instructions that Mr Nkuna knew who Xolani was?

MS THABETE: No Madam Chair.

CHAIRPERSON: How can you put it to Mr Mononi that Mr Nkuna will say that Xolani struggled with him?

MS THABETE: No Madam Chair, I said is it his evidence that Xolani struggled with the deceased and not with Mr Nkuna?

CHAIRPERSON: Yes.

MS THABETE: Yes, I wasn't putting it to him.

CHAIRPERSON: Oh, I thought you had.

MS THABETE: No, I was just asking him.

CHAIRPERSON: My apologies.

MS THABETE: Okay. Maybe I can clarify Madam Chair, my instructions are that it is not the deceased who struggled with any of the attackers, but it was actually Mr Nkuna himself.

With regards to the service pistol that was taken from Mr Mathonsi, did you actually see Pat taking the service pistol from Mr Mathonsi, the deceased?

MR MONONI: Yes.

MS THABETE: Where did he take it from?

MR MONONI: It was on a holster, on the side of his waist.

MS THABETE: Sorry I missed that.

MR MONONI: It was on a holster, or in a holster on the side of his waist, around his waist.

MS THABETE: It is also my instructions Mr Mononi, that none of you took the service pistol from the holster, the deceased's holster, but it is the policemen who came after the incident, who removed the deceased's service pistol. What is your comment to that?

MR MONONI: No, the firearm was taken.

MS THABETE: After you had shot the deceased, what happened thereafter, can you briefly explain?

MR MONONI: The deceased was killed by Xolani, was shot by Xolani, not myself.

MS THABETE: Sorry, I mean after the deceased had been shot, what happened thereafter? Did you leave the scene, what happened, were you there when the policemen came? Can you just briefly tell us what happened thereafter?

MR MONONI: When the police arrived, we had already left, because after the police was shot, and another one had fled, we too left. We fled.

MS THABETE: Since my instructions are that you fled because Mr Nkuna was trying to struggle with you, would you say that is a correct statement?

MR MONONI: No, we fled after this policeman had been shot, he was then laying on the ground. The other policeman had fled to a different direction.

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

CHAIRPERSON: Thank you Ms Thabete. Mr Lax?

MR LAX: Thank you Chairperson. Mr Mononi, did you not see any of your colleagues wrestling or struggling with the policeman who didn't die, Mr Nkuna?

MR MONONI: No. This one policeman lay down at the time.

MR LAX: You see his evidence was at the trial, that he heard a shot, page 24 of the papers, Mr Leopeng, this is in the judgement, it starts at line 10.

You will see at about line 14, he hears the explosive sound of a firearm, his attention becomes drawn to the deceased, trying to run away and his conclusion was that the sound heard by him, was the sound of a shot, only one shot.

According to him, someone was standing there, holding a firearm, a shotgun pointed in the direction of the deceased. He says two other persons were also present, one of those had a firearm.

This person was trying to shoot at him. The other person was attempting to remove his firearm from his holster, he resisted, he pushed up the hand of one of his attackers. That hand held the firearm and a shot went off.

These two men were standing on each side of him. It appears the Inspector was holding his firearm in his own holster, so that the shot that went off, came from the firearm of one of the attackers. He fell to the ground, then got an opportunity to remove his firearm from his holster and when he pulled it out, all three the attackers ran away.

You say that didn't happen that way?

MR MONONI: Yes, it did not happen that way.

MR LAX: Well then, what did this other policeman do, not the deceased, the other policeman? Did anyone shoot at him?

MR MONONI: No, only one shot was fired that day. Nobody else attempted to shoot the other police.

MR LAX: Did no one try to take his firearm away from him?

MR MONONI: There is one person who attempted to do that, but at that time, he was laying down. That was after this other policeman had been shot and we fled.

MR LAX: So, when you told this man, or when Winki told the man these two men, to give you their firearms, what happened after that?

MR MONONI: We pointed our firearms at them and the deceased was in front of Xolani. He tried to grab Xolani and on pointing the firearm to the other policeman, this policeman lay down and after that, a gunshot went off.

MR LAX: How did he lay down, that is what we are interested in? Did he just lay himself down flat on the ground, did he fall down, did somebody hit him on the head, what happened, you were there, you must tell us?

MR MONONI: He threw himself on the ground.

MR LAX: Was that as the shot went off?

MR MONONI: No, that was before the shot went off.

MR LAX: What did you do, you haven't told us what you did? What exactly did you do?

MR MONONI: I pointed my firearm at them.

MR LAX: At who? At which one?

MR MONONI: I was standing in the middle of them, covering my other comrades.

MR LAX: Well, if you were covering your other comrades, you couldn't have been pointing your firearm at the two of them?

MR MONONI: It was possible, because I was watching for anybody who could draw his firearm first, in case my comrades did not notice that.

MR LAX: Now, which of these five people that you have mentioned, were your co-accused at the trial?

MR MONONI: It was Daniel, but we were not prosecuted together. He was acquitted before the trial.

MR LAX: Was his name Daniel Nyao?

MR MONONI: Yes, Daniel Dabula, Dabula is the surname.

MR LAX: And Lawrence Khumalo, which one is he?

MR MONONI: Lawrence Khumalo was a member of the Unit, but he was not present on the crime scene, he was one of the people I was arrested with.

MR LAX: And Vusi Mase?

MR MONONI: He too.

MR LAX: What are these people's names that were with you, what is Winki's name?

MR MONONI: Winki is the name, I do not know the surname, Maponya is his combat name.

MR LAX: And Pat?

MR MONONI: Pat is the name, I don't know the surname.

MR LAX: And Xolani?

MR MONONI: Radebe is Xolani's surname.

MR LAX: In your trial, you gave a completely different version of what happened on that day - you said you weren't there at all.

MR MONONI: The evidence in court, could not have been the same as the evidence before this Commission, because in court I was not supposed to tell the truth.

MR LAX: The Court accepted a confession that you made to the police, do you remember that?

MR MONONI: Yes.

MR LAX: In that confession, was detail of you pointing out some, you took the home to one Martha Marole, do you remember that?

MR MONONI: Yes, I do.

MR LAX: How did you know that the firearms were there?

MR MONONI: A few firearms were there, I knew that.

MR LAX: The question was how did you know that?

MR MONONI: These were places that we were using for dead letter boxes.

MR LAX: In your statement to the police, you gave the names of four other people that were with you. Do you remember that if you look at page 26 of the judgement, the extract is there Mr Leopeng. He mentioned the name of Nau, another name Zelani, Winki and Lawrence.

MR MONONI: Nau is Daniel, Winki as well as Xolani. Lawrence is one person with whom I was arrested, he was a member of the Unit, but he was not on the scene of the crime.

MR LAX: The question I am asking is, why did you give the names of your comrades in that statement?

MR MONONI: On writing this statement, I must say that I was being beaten up and forced to admit. I had to include Lawrence because he is the one with whom I was arrested.

MR LAX: I see. You have said that you were a Commander of a sub-unit within the SDU, is that right?

MR MONONI: Yes, that is correct.

MR LAX: How did it happen that your Commander went along with you, even though you were a Commander of a sub-unit of that Unit?

MR MONONI: He was present on that day. I could only be responsible if he was present, and I would be the one in those circumstances, to step in.

CHAIRPERSON: I think there was an error in your translation, he would have been responsible had he not been present.

INTERPRETER: Thank you Chair.

CHAIRPERSON: Meaning he would have taken command had the Commander of the Unit been present.

MR LAX: Thank you Chair, I have no further questions, I have covered everything for myself.

ADV BOSMAN: I have no questions, thank you Chair.

CHAIRPERSON: I have no questions either. Mr Leopeng, emanating from the questions by Ms Thabete and by Mr Lax, do you have anything to re-examine Mr Mononi in?

RE-EXAMINATION BY MR LEOPENG: Yes Madam Chair, just one issue.

CHAIRPERSON: You may proceed to do so.

MR LEOPENG: Mr Mononi tell us, how many shots went off during the operation on the 14th of August 1993?

CHAIRPERSON: Hasn't that been covered Mr Leopeng, I will not allow that question. You have already covered that aspect in your evidence in chief. I want you to re-examine him on any aspect that came up during Ms Thabete's cross-examination and Mr Lax's questioning.

MR LEOPENG: Madam Chair, other than that question, I don't have any other questions.

CHAIRPERSON: Thank you. You may proceed to call your next witness.

MR LEOPENG: I beg leave to call Veli Mkhize.

CHAIRPERSON: Mr Leopeng, is it still your intention to call a witness in support of your client's application?

MR LEOPENG: Mr Chair, after considering the matter, I have decided not to call the other witness any more.

CHAIRPERSON: Thank you. Can you please make sure that the microphone of your client is switched off. Ms Thabete?

MS THABETE: Madam Chair, can I proceed to call Mr Nkuna? He is now Captain Nkuna.

CHAIRPERSON: You may proceed to do so. Captain Nkuna, will you please take the stand.

MS THABETE: Can I proceed, Madam Chair?

CHAIRPERSON: Mr Nkuna, are you prepared to take an oath? In that case, will you please rise in order to take the oath?

MBASIMA RICHARD NKUNA: (sworn states)

CHAIRPERSON: You may be seated sir.

EXAMINATION BY MS THABETE: Captain Nkuna, can you state your full names for the record please?

MR NKUNA: My names are Mbasima Richard Nkuna.

MS THABETE: Is it correct that you were at the scene where Mr Mathonsi was shot and you were assaulted?

MR NKUNA: It is correct.

MS THABETE: Can you go ahead and tell this Committee what actually took place that day briefly, on the 11th of August 1993?

MR NKUNA: Yes, I can.

MS THABETE: Please proceed.

MR NKUNA: It was in the morning, I can't remember the exact time. It was myself and Bernard Mathonsi, we left our office and went to a place behind the police station, next to a post office because we were supposed to post some letters.

After posting the letters, we left and went to a place where they go repair my tyre. While I was talking to the person who was repairing my car tyre, Mathonsi was standing behind me and I heard a gunshot. When I turned and looked back, I saw Mathonsi trying to run away.

CHAIRPERSON: As you give your evidence, we are trying to make a record of what you are telling us. We therefore would request you to speak at a pace that will enable us to take down that which you are saying. We also have to ensure that the Translators are in a position to translate everything that you say to us, and that they do not miss a word because of the fast pace at which you are giving your evidence.

We therefore will implore you to slow your pace, thank you. You may proceed.

MR NKUNA: Can I start from the beginning?

MR LAX: No, you can start from the place where you said you went to the post office, you went to the tyre repair shop, you were talking to the owner and while you were talking to him, you heard a shot.

MR NKUNA: After I heard the gunshot, I looked back and I saw Mathonsi trying to run away.

MS THABETE: Mr Nkuna, was there any struggle that took place between Mr Mathonsi and one of the people who were attacking him before he was shot?

MR NKUNA: There was no struggle because he was behind me and facing the same direction. He was shot from behind, so he didn't get a chance to fight with these people.

MS THABETE: Can you proceed? You ran away and then what happened?

MR NKUNA: Instantly I saw two people next to me, the other one was pointing a firearm at me, and the other one was trying to disarm me, taking my firearm from my holster.

MS THABETE: Is the person who had pointed the firearm at you, present today, will you recognise him?

MR NKUNA: The person who pointed a firearm at me is not present before the Committee or in this hall.

MS THABETE: You may proceed.

MR NKUNA: Then I saw Mathonsi falling down. The other one was starting to shoot at me, I raised up my hand and he fired the other shot.

MS THABETE: You may proceed.

MR NKUNA: I tried to take my firearm from my holster and I fell on the ground, and it is then that they started running away from us.

MS THABETE: The applicant's evidence is that you ran away. What is your response to that?

INTERPRETER: Excuse me, we didn't get the last part of the question.

MS THABETE: What is your response to that?

INTERPRETER: We didn't get the statement you are putting.

MR LAX: Just repeat the question.

MS THABETE: The applicant's evidence is that it is not them who ran away, but you ran away. What is your response to that?

MR NKUNA: That is not true. They are the ones that ran away after they saw my trying to pull out my firearm from my holster.

MS THABETE: You have seen the applicant today, do you recognise him as being present on the day of the incident?

MR NKUNA: Yes, I do recognise him.

MS THABETE: Do you remember what he did that day?

MR NKUNA: I said the first gunshot, when I turned to look back, I saw him pointing the firearm at Mathonsi.

MS THABETE: Is that all you saw him doing?

MR NKUNA: He ran towards Mathonsi, trying to take the firearm from Mathonsi, but he was afraid at that time. He was running between me and Mathonsi, trying to disarm Mathonsi at the same time, but I could see that he was afraid, he wasn't sure that he is going to succeed in his mission.

MS THABETE: Can you clarify when you say he was attempting to disarm Mr Mathonsi, what do you mean, what was he doing?

MR NKUNA: After the shooting or I will say after I heard the first gunshot and I saw Mathonsi trying to run away, this one tried to follow him, trying to disarm him, but because Mathonsi had not yet fallen down at the time, he ran back. It looks like he was afraid to disarm him, he ran back towards me.

CHAIRPERSON: Mr Nkuna, let me try and get your evidence on this aspect. You have earlier on testified that as you were busy talking to the person who was repairing your tyre, you then heard a shot and thereafter you looked back and you saw Mathonsi trying to ran away.

You then saw Mathonsi falling down, I am a little confused with that aspect of your evidence. Then you proceeded to say you saw the applicant Mr Mononi running towards Mr Mathonsi, the deceased and attempting to dispossess him of his firearm. Now, at which stage did you see the applicant running towards the deceased and at which stage did you see the applicant attempting to dispossess the deceased of his firearm?

I am a little confused, maybe if you can assist us in that respect, do you understand what I am requesting of you, a kind of clarification as it were.

It is not clear to me at which stage you saw Mr Mathonsi running away and at which stage you saw him falling down and at which stage you saw the applicant running towards Mr Mathonsi with a view of dispossessing him of his firearm.

MR NKUNA: I will try to explain again. However, I would like to explain that these things were happening at a fast, quickly. I said after the first shot, I saw Mathonsi trying to run away.

The one was armed with a firearm at the time, was moving towards Mathonsi's direction, trying to grab his firearm, but he didn't. It looked like he was afraid to do so.

CHAIRPERSON: Was that person the applicant, the one who was running after Mathonsi?

MR NKUNA: Yes, it is the one before the Committee.

CHAIRPERSON: Was Mr Mathonsi shot at that time?

MR NKUNA: Yes, he was already shot because after seeing him, this man before us, trying to disarm him, it is after then that I saw him falling down, Mathonsi falling down.

CHAIRPERSON: Can you estimate the distance that he could have covered from where you initially had seen him standing behind you and where he ultimately ran to and fell onto the ground?

MR NKUNA: I will say it is, where he was standing, it was about from where I am, next to the table there, and after he was shot, he tried to run a distance from where I am to the table, opposite me where the lady is sitting.

CHAIRPERSON: He was standing from this table and covered a distance between that table and this table?

MR NKUNA: That is my estimation, but it is not really exactly.

CHAIRPERSON: That is about four to five paces.

MR NKUNA: That is correct.

CHAIRPERSON: Mr Leopeng, five to six, about six paces? Do you agree Mr Leopeng? Yes?

MR LEOPENG: Yes, Madam Chair.

CHAIRPERSON: Now you say that the applicant or the person that you identified as the applicant, was running after Mr Mathonsi and trying to dispossess him of his firearm. What in fact was he doing which suggested to you that he was trying to dispossess him of his firearm? What was the applicant doing as Mr Mathonsi was running away?

MR NKUNA: What made me to suspect that he was trying to disarm the deceased was that he was running in such a way like he was trying to grab the firearm from Mathonsi.

CHAIRPERSON: Was his hand outstretched?

INTERPRETER: Sorry, I didn't get the last part.

CHAIRPERSON: When you say he was running away in such a way as to try to grab the firearm from Mr Mathonsi, was the applicant's hand outstretched?

MR NKUNA: It wasn't stretched, however if someone is trying to grab something, it is easy to suspect or to see that this person is trying to grab something out of the place.

CHAIRPERSON: You in fact suspected that he was trying to do so?

MR NKUNA: Yes.

CHAIRPERSON: Yes, thank you. You may proceed Ms Thabete.

MS THABETE: I have no further questions Madam Chair.

CHAIRPERSON: Mr Nkuna, I note that you have what looks like a docket. Is it a docket in respect of the trial that was conducted against Mr Mononi?

MR NKUNA: Yes.

CHAIRPERSON: Do you have a copy of the post mortem conducted on behalf of the deceased, Mr Mathonsi, in your docket?

MR NKUNA: Yes, it is present.

CHAIRPERSON: Can we please have a copy thereof? The post mortem report, I shall proceed with the proceedings herein. You may do so.

MS THABETE: Thank you Madam Chair. Would you like to have copies?

CHAIRPERSON: I would like to have a copy and definitely the Committee would like to have a copy thereof. Mr Leopeng would probably have to be given a copy, it will clear one aspect of the evidence already given by Mr Mononi which was not clear as to where exactly the deceased was shot at on his body.

We may however proceed with Mr Nkuna's evidence. Won't you assist. Have you been able to locate the post mortem report Ms Thabete?

Mr Leopeng, I will now give you an opportunity to put any questions if you have, to Mr Nkuna, now that he has completed his testimony in chief.

CROSS-EXAMINATION BY MR LEOPENG: Thank you Madam Chairman, I have some few questions.

CHAIRPERSON: I am not Madam Chairman.

MR LEOPENG: I beg your pardon Madam Chair. Mr Nkuna, in your evidence in chief, you said after you heard a shot and you saw the deceased trying to run away, you then saw someone standing holding a firearm, is that correct?

MR NKUNA: That is correct.

MR LEOPENG: And subject to correction from the panel, you said this is the applicant, the one who was holding the firearm is the applicant before this Committee?

MR LAX: Well Mr Leopeng, there were a number of people who were holding firearms. Just be specific about which one you are referring to, because in his testimony he refers to somebody pointing a firearm at him, he also refers to someone pointing a firearm at the deceased.

If you just clear up which person are you referring to, you will get the evidence that you are looking for.

MR LEOPENG: Thank you. The question that I put to the witness is that is it correct that the someone that he saw pointing the firearm at the, holding a firearm after the shot went off, was the applicant, and he said yes.

CHAIRPERSON: Maybe, not coming to Mr Nkuna's defence, you were not explicit with your question. Will you please put your question again and try to be explicit, segment it if possible.

MR LEOPENG: Thank you Madam Chair. Mr Nkuna, you said after you heard a shot and you noticed the deceased trying to run away, there was someone who was standing there, holding a firearm at that time, is that correct?

MR NKUNA: I don't understand your explanation at this present moment, or your question.

MR LEOPENG: But Mr Nkuna that was the evidence, your evidence in chief?

CHAIRPERSON: Mr Nkuna, your evidence was that.

MR NKUNA: I said I saw someone pointing a firearm at Mathonsi and at the same time, two people were next to me, trying to disarm me of my firearm.

CHAIRPERSON: That is precisely what is being put to you by Mr Leopeng, Mr Nkuna.

MR LAX: It is not quite Chairperson, because Mr Leopeng's question, that is what I tried to explain to him, he saw somebody holding a firearm. He said he saw someone pointing a firearm at the deceased, there is a big difference, and that is why he is confused.

MR LEOPENG: Thank you for the clarification. Did you see someone pointing a firearm towards the deceased?

MR NKUNA: When you say someone, I don't know whether you are referring to the one that I mentioned before, or someone else?

CHAIRPERSON: Yes, did you see any person pointing a firearm at the deceased, yes or no? Did you or did you not see any person?

I think the identity of the person will soon come up, because Mr Leopeng is trying to take you stage by stage of what you have already said.

MR NKUNA: The person that I saw pointing a firearm at the deceased, was the one that I mentioned before this Committee.

CHAIRPERSON: His response is yes Mr Leopeng. Mr Nkuna, try and respond to questions which are being put to you the best way you can.

Did you see someone pointing a firearm at the deceased, your answer should be yes, then you may elaborate and say that person is so and so.

MR NKUNA: I appreciate to answer a question the way I understand it. The person that I saw pointing a firearm at Mathonsi, was the first person, it was only one person, I did not see any other person pointing a firearm at Mathonsi.

MR LEOPENG: And that person, in your evidence you have said it is the applicant before this Committee, is that correct?

MR NKUNA: Yes, he is the one before the Committee today.

MR LEOPENG: Is it correct further that you testified during the trial in the Johannesburg High Court?

MR NKUNA: That is correct.

MR LEOPENG: I now turn to page 3 of the judgement, on my paginated bundle, is marked page 10, but I am not sure if it corresponds with the panel's papers.

CHAIRPERSON: Ours is page 24. I think you can just continue telling us the numbers of the judgement as it appears on the judgement, without our paginated numbers.

MR LEOPENG: Thank you Madam Chair. During your testimony in trial, you said you could not identify the applicant before this Court during the identification parade, is that correct?

MR NKUNA: If I were not able to point him out at the identification parade, it will be a mistake on my part, because I could positively identify him. It is possible that I wasn't able to point him out and the reason might be that at the time when I saw him, he was very young and when I saw him for the second time, he was a grown up person.

CHAIRPERSON: Mr Nkuna, I have not been able to understand what you are saying. Will you please for my sake, come again. Just repeat what you have just said, the reason why you were unable to identify him before, but wee able to identify him later, what reasons did you advance?

MR LEOPENG: Madam Chair, through your permission, may I maybe rephrase the question in a very simple manner?

CHAIRPERSON: If it will assist Mr Nkuna and this Committee, you may do so.

MR LEOPENG: Mr Nkuna, I said during your testimony in the trial, you indicated and it was common cause before Court, that you could not identify the applicant before this Court who was the accused then, during the identification parade and you identified him only in court. Is that correct?

ADV BOSMAN: Excuse me for coming in Mr Nkuna, Mr Leopeng, I am now thoroughly confused. I don't know, where are you referring to when you say that he testified that he could not point him out?

MR LEOPENG: On the judgement, it is page 4 of the judgement.

CHAIRPERSON: And precisely ...

ADV BOSMAN: He says there in the judgement, the Judge, in his evidence, the Inspector said that he had attended an identification parade at which he pointed out the accused. This is what confuses me now.

CHAIRPERSON: I think it is a little confusing, you've got to read that judgement a little further down, then you will see from line 17 it is quite clear that the Inspector had not been able to identify the applicant, who was an accused then, at his criminal trial, he was unable to identify him at an identification parade immediately after the incident, but was able to identify him in court. He had not been able to identify him at an identification parade.

That is what you are putting to him Mr Leopeng?

MR LEOPENG: Yes.

ADV BOSMAN: Thank you Chairperson, that ...

CHAIRPERSON: You are welcome, Ms Bosman. Mr Nkuna, do you understand the question which is being posed by Mr Leopeng? His question is that you were unable to identify the applicant at an identification parade, and you were only able to so identify him during the criminal trial.

MR NKUNA: I also in explanation before the Court explained that the reason why I was not able to identify him in the identity parade, is because it was a long time ago after the incident.

CHAIRPERSON: His problem is that when the identification parade took place, it was much closer to when the incident had occurred, and when you were able to identify him in court, it was much later. Can you give a reason why you were unable to identify him at an identification parade which was held much earlier but were only able to identify him during the criminal trial, which happened much later?

MR NKUNA: I said if I failed to point him out at the identification parade, my understanding is when I saw him, he was still young, and when the ID parade was conducted, he was a grown up person, so it is a mistake on my part, not having been able to identify him.

CHAIRPERSON: I think the question which is being posed to you is why were you still able to identify him when he was even much older, during his criminal trial. That is the question if the reason why you were unable to identify him during the identification parade, was because he had become much older, surely it must have been even more difficult to identify him during his criminal trial, because he had become even more older?

MR NKUNA: I said at the ID parade, I expected to see someone the same age at the time when I saw him during the incident, and my explanation was that he was grown up at the time.

CHAIRPERSON: Mr Leopeng, I doubt if you can take this matter any further.

MR LEOPENG: Yes, I am leaving that.

CHAIRPERSON: You may proceed to the next item, sorry to the next aspect of his evidence.

MR LEOPENG: Mr Nkuna, when you said in your evidence in chief before this Committee that when the deceased was trying to run away, someone was running after him, trying to disarm him. What actually did he do which convinced you that he was trying to disarm him?

MR NKUNA: I explained that he was running in a way, like trying to catch the firearm and then comes back, withdraw back and go fast. I said I was in a position to see that he was trying to take something. I was looking at him and I came to the conclusion that he was trying to take the firearm.

MR LEOPENG: But your evidence after you had been questioned by Madam Chair, you said you just suspected because he was running after him. Is that not what you said?

MR LAX: With respect Mr Leopeng, he did actually say that the man, looked, thought he was trying to take something from him. That was his evidence.

MR LEOPENG: With respect, after Madam Chair took the matter further, he said I only suspected because if someone is running after him, I thought he was going to disarm him, there was no stretching of the hand, nothing.

MR LAX: I think we are confusing two different issues here. The fact that he suspected the guy was trying to take something, is one thing, but he very clearly said that the person was trying to touch him. He said he didn't have his arm outstretched, now that could be a question of interpretation.

If I stretch my arm out, it doesn't mean I am necessarily trying to grab something, and it wasn't followed up very carefully. Frankly, if you want to clear it up, go ahead and clear it up, but don't put it to him on the basis that he didn't say that, or did say something else.

MR LEOPENG: Thank you for that clarification. Mr Nkuna, what actually did the person who was trying to run after the deceased, do in trying to disarm the deceased?

MR NKUNA: I don't understand the question because I explained that he was running in a fearful manner, but trying as if he was trying to grab the firearm. I don't know what further you want me to explain on that point.

CHAIRPERSON: How was he running in such a way as to try and grab the firearm, is the question which is being put to you.

MR NKUNA: I said he was running quickly, like stinging, like showing that he wants to steal something from me.

CHAIRPERSON: I don't know whether this is a question of a translation problem or these are words used by Mr Nkuna, which we cannot comprehend. We have had words like he was running in a fearful manner, we now hear he was running in a stinging manner, I don't know. Can we just clear that up. What is the meaning of all these adjectives?

MR NKUNA: I said he was running, but looking as if he wants to grab the firearm, so it looked like he was nervous and then withdrew. I will say it might be difficult to explain because it is so difficult sometimes to explain things which happened so fast.

What I am saying is, he was running, showing as if he was trying to grab the firearm, but at the same time, showing some nervousness and withdrawing back. Maybe he was afraid that Mathonsi will fight back, I don't know.

And finally, he didn't manage to take the firearm and he withdrew. That shows that he was nervous.

CHAIRPERSON: Mr Leopeng, the ball is in your court.

MR LEOPENG: Thank you Madam Chair. One other question in respect of this issue, did that person who was running after the deceased, come in contact with the body, the person of the deceased?

MR NKUNA: They didn't come to contact. As I explained, he looked nervous.

CHAIRPERSON: May I find out Mr Nkuna, at which stage did this person completely withdraw from running after Mr Mathonsi? Are you in a position to elaborate on that? He was pursuing Mr Mathonsi up to some stage, at which stage did he stop his pursuit?

MR NKUNA: Mathonsi was running at the time, and he tried to follow him. He ran back towards me, and then there was a second shot fired while I was struggling with these people, that was the time when they ran away. I would like you to take into account that these things were happening very quickly.

CHAIRPERSON: No, we are fully cognisant of that. We are very mindful of the fact that they were happening very quickly, and on that aspect, how long do you think the pursuance lasted, that is by allegedly Mr Mononi? Was it a split of a second?

MR NKUNA: I didn't count, but I would say it was quick. He just went towards him, and quickly withdrew. I can't be able to give the exact seconds.

It could only be inferred from the actions what he did, as to how many seconds it could be.

CHAIRPERSON: But it was very quick as you say?

MR NKUNA: Yes, it was very quick.

CHAIRPERSON: You may proceed Mr Leopeng.

MR LEOPENG: Thank you Madam Chair. Mr Nkuna, why this evidence, let me specify, the evidence that after the shot went off and that you noticed someone running after the deceased, trying to grab, trying to disarm him, why was that part of evidence not tendered in court?

MR NKUNA: I don't remember what exactly I said before the Supreme Court. If I didn't put it on record, it means it wasn't required out of me to put it, because I did say everything that was necessary at the Supreme Court.

MR LEOPENG: This part of evidence was not tendered, that is what I am putting to you.

MR LAX: You can't say that Mr Leopeng. All you can say is it doesn't appear from the summary in the judgement. You certainly can't say that he didn't tender it and that is the difficulty we all have, we don't have the record here.

MR LEOPENG: Well, if the Judge did not include that in the judgement, then I leave the matter ...

Mr Nkuna, according to your own memory, how many shots were fired during that day, on that day?

MR NKUNA: Two times.

CHAIRPERSON: Before you proceed on the point that has been mentioned by Mr Lax, have you read the judgement closely and what do you make of the statement that Mr Lax has just said, do you agree with that? Do you agree with that statement, the one that has been made by Mr Lax if you have read the judgement closely, particularly, what do you say of a reference there which is being made by allegedly the evidence of Mr Nkuna about someone having stood next to the deceased, holding a shotgun and pointing that shotgun in the direction of the deceased, which appears on line 18 and 19, 19 and 20?

There obviously was reference to someone having pointed a firearm in the direction of the deceased?

MR LEOPENG: Madam Chair, that is not in dispute. What I say, the evidence, this portion of evidence that there was someone who ran after the deceased, trying to disarm him, that is not in the ...

CHAIRPERSON: Precisely. What do you make of the evidence that was led there, that a shotgun was the weapon that was pointed at the deceased as it appears in line 20? Are you still coming to that in the light of the evidence led by Mr Mononi that on that day he was armed with a Makarov pistol?

MR LEOPENG: Yes, I am still coming to that issue.

CHAIRPERSON: Well, you better come to that point fast then.

MR LEOPENG: Mr Nkuna, you said in your evidence in chief, that there was someone who was armed with a firearm. What kind of firearm was it?

CHAIRPERSON: Find out first Mr Leopeng, lay the basis for that conclusion you want out of him. Did he see the kind of a firearm that was used by the person that he allegedly identified as Mr Mononi, that is the question you should ask.

MR LEOPENG: Mr Nkuna, did you identify the kind of weapon which was in possession of the person who pointed the deceased?

MR NKUNA: Yes, I could identify it. I said it was a shotgun or a pump gun.

MR LEOPENG: So in your own words, a shotgun might be a pump gun?

MR NKUNA: Shotgun and pump gun is one and the same firearm.

MR LEOPENG: Is a pistol also a shotgun?

MR NKUNA: No, it is not.

MR LEOPENG: Thank you. The person who was holding a firearm, you said it was a shotgun and which means it was not a pistol? I put it to you that the applicant before this Committee, stated in his evidence in chief, that he was in possession of that specific day, of a Makarov pistol.

CHAIRPERSON: As him to comment.

MR LEOPENG: What do you say about that?

MR NKUNA: I am saying that he was holding a shotgun.

MR LEOPENG: No further questions Madam Chair.

CHAIRPERSON: Thank you Mr Leopeng. Mr Lax, do you have any questions to put to Mr Nkuna?

MR LAX: No questions Chairperson.

CHAIRPERSON: Ms Bosman?

ADV BOSMAN: Just one question, thank you Chairperson.

Captain, did you hear anybody saying anything during the time that this shooting took place, and during this scuffle?

MR NKUNA: Nobody talked, it was only action.

ADV BOSMAN: Thank you Chairperson.

CHAIRPERSON: Thank you Ms Bosman. Mr Lax, would you like to put a question?

MR LAX: Just one question that nearly slipped my mind Chairperson.

Mr Nkuna, the question of the deceased's firearm, what happened to that firearm?

MR NKUNA: It was taken from the deceased by the Investigators. It was inside the deceased's holster, that is where they removed it.

MR LAX: It is common cause, do you remember whether that firearm formed the subject of any robbery charge?

MR NKUNA: May you please repeat your question.

MR LAX: Do you have any knowledge whether that firearm formed the subject of a charge of robbery or not?

MR NKUNA: It was taken by the Investigating Officers. I wasn't told of that and I am not aware of that.

MR LAX: Thank you, no further questions Chair.

CHAIRPERSON: Did you see the Investigating Officers remove the firearm from the body of the deceased? Did you personally witness them removing his firearm?

MR NKUNA: Yes, the Investigating Officers removed the firearm from the holster.

CHAIRPERSON: Did you personally witness that?

MR NKUNA: Yes.

CHAIRPERSON: And when was that in relation to when this incident took place? Was it immediately or after a few hours after the incident had occurred?

MR NKUNA: It didn't happen quickly because they arrived and did the scientific investigations. Before they could touch the deceased, they did all the tests, before they removed the firearm from the body of the deceased.

They didn't immediately went there and took it out.

CHAIRPERSON: Is there any reference in your docket to the deceased's weapon?

MR NKUNA: I only got a chance to look at the docket just now, when I arrived, and I didn't get a chance to look at the docket whether they explained whether the firearm was handed in any particular way.

CHAIRPERSON: Mr Nkuna, do you have any objection if you handed up your docket to the Committee in order that we may peruse and see whether such an entry with regard to the deceased's weapon, was made by the Investigating Officer who attended to him at the scene. Do you have any objection to us doing that?

MR NKUNA: The docket is not in my possession, I just found this with the Evidence Leader, so it is in the possession of the Evidence Leader, I don't know, you can talk to her to look inside it and see if it is there.

CHAIRPERSON: So you have no objection to us going through that docket?

MR NKUNA: Yes, I don't have any problem, they can have a look at it.

CHAIRPERSON: Thank you. Thank you Mr Nkuna. Ms Thabete?

MS THABETE: Madam Chair, would you like me to hand it over to you?

CHAIRPERSON: Yes.

MS THABETE: Okay.

CHAIRPERSON: It will not be handed up as an Exhibit, we will simply go through that docket to see if the relevant entry was made by the police, which will assist us in determining this aspect of the evidence.

We will after quickly perusing the docket, return it to Mr Nkuna. Was this in fact a copy made for your perusal Ms Thabete?

MS THABETE: Yes.

CHAIRPERSON: Or is it a document that still has to go back to Mr Nkuna?

MS THABETE: It was my copy which I was given by the Investigative Unit.

CHAIRPERSON: Yes, we will return it to you as soon as we have completed perusing it.

MS THABETE: Thank you Madam Chair, can I put something on record as well that you had referred to earlier on?

CHAIRPERSON: Yes.

MS THABETE: On page 19 of the bundle, it is the summary of, it is the judgement, in the summary of substantial facts, they talk about the shot on the deceased, having been on the chest and abdomen.

MR LAX: Yes, that is apparent from the post mortem as well.

MS THABETE: From the post mortem report as well, so I would say that the applicant's version would be correct.

CHAIRPERSON: It concurs with, yes.

MS THABETE: Yes. Thank you.

CHAIRPERSON: Thank you for drawing that to our attention. We had already quickly gone through the post mortem report and we noticed that, I think the description of the entry and the exit wound and the area where that entered, coincides with the understanding of Mr Mononi's evidence.

Mr Leopeng, you had ...

MR LEOPENG: Madam Chair, through your permission, I beg leave to go back to another question. I have closed my cross-examination, but I beg leave to ask just one important question regarding the sequence of events after the alleged person was running after the deceased to the falling of the deceased.

CHAIRPERSON: Yes, you may do so.

FURTHER CROSS-EXAMINATION BY MR LEOPENG: Thank you Madam Chair.

CHAIRPERSON: May I just explain to Mr Nkuna. Mr Nkuna, Mr Leopeng has requested this Committee to afford him an opportunity to put a question that he omitted to put to you during his cross-examination of you.

We have in the interest of justice and fairness, allowed him to do so.

MR LEOPENG: Thank you Madam Chair. Mr Nkuna, in your evidence in chief you said before the deceased could fall down, the person who was running after him, retreated, is that correct?

MR NKUNA: That is what I said.

MR LEOPENG: Now I turn to page 5 of the judgement, I am not sure about the paginated papers, page 4 of the judgement, the fourth line of the first paragraph.

Mr Nkuna, there was evidence that one of the assailants attempted to remove the deceased's firearm from his holster when he fell. What do you say about that?

MR NKUNA: What is written there, is what I said.

MR LEOPENG: But in your evidence in chief you said he retreated before he could even fall down?

MR LAX: That evidence says one of the assailants, it is not saying the same one. I think you put questions in a very lose way and then you try and pin him down to a very specific understanding of that question.

It is not fair Mr Leopeng, as the Chair said, if you want to cross-examine a witness, you must lay the foundation, then you must put your specific question. You can't come from a generalist kind of, what you have read is that another of the assailants, we don't know which one that is, we don't know who that refers to.

Unless you put it to the witness specifically, you can't then try and pin it down afterwards.

MR LEOPENG: Thank you for the clarification. Was there any other person except the one you referred that he was holding a firearm, who ran after the deceased before he fell down?

MR NKUNA: I said I am still talking about a person, I am saying it for the third time, I have answered this question for three times now.

CHAIRPERSON: Mr Nkuna, please you must answer questions which are put to you for as many times as it is necessary, unless the Chair rules otherwise.

Whether you ask them for the umpteenth time, if I feel that is a fair question, I will allow it, and it will be expected of you to respond to that question whether it is the second or the third time. Please answer the question.

MR NKUNA: Thank you.

CHAIRPERSON: Do you want the question to be repeated or are you in a position to answer the question?

MR NKUNA: I said the person whom I saw running after Mathonsi, is the person whom, when I heard a shot which was fired, it was the one who was pointing the firearm at Mathonsi.

MR LEOPENG: So in other words, there was no any other person who you saw running after the deceased, other than the one who was holding a firearm?

MR NKUNA: I said there was no other person, except the person whom I have mentioned before.

CHAIRPERSON: Mr Nkuna, did any person attempt to remove Mr Mathonsi's firearm whilst he was laying on the ground?

MR NKUNA: I said the person whom I saw trying to grab the firearm from Mathonsi, is the same person whom I saw pointing a firearm at Mathonsi after we heard a shot. After Mathonsi was laying down, I never saw any person trying to grab the firearm from him.

That is what I was trying to explain.

CHAIRPERSON: During Mr Mononi's criminal trial, to the effect that you saw one of the assailants attempting to remove Mr Mathonsi's firearm whilst he was on the ground, was that not the evidence that you gave during Mononi's trial?

MR NKUNA: I said he tried to grab the firearm from Mr Mathonsi when he was laying. I don't know what is written there, but what I said is that he was trying to take the firearm, but he was nervous, so when he heard the second shot, he ran away.

I don't know how it is written in the documents there.

CHAIRPERSON: The Judge summarised your evidence as follows that when Mr Mathonsi fell, and was on the ground, one of the assailants tried to remove his firearm from his holster.

The Judge may not have gone further to say he was laying on the ground, but he said when he fell, you saw one of the, not one who was running after him, there might have been that incident, but how it is summarised to evidence is that you saw one of the assailants removing Mr Mathonsi's firearm when he fell.

MR NKUNA: What is written by the Judge, I think they look similar. It might be different in writing, when you put it on record, because I said he was running to him, trying to grab the firearm. That is why I am saying it looks or it seemed as if he was trying to take the firearm or he tried to take it while he fell down, I mean it is difficult because he didn't tell me that he was trying to grab the firearm from Mr Mathonsi.

It was just my own opinion.

CHAIRPERSON: It was your own speculation?

MR NKUNA: That is true.

CHAIRPERSON: Yes. Mr Leopeng?

MR LEOPENG: The applicant denies having run after the deceased and further that he tried to disarm the Police Official. That is all Madam Chair.

CHAIRPERSON: Haven't you put that to him when you had an opportunity to do so? We can't allow you to have the second bite. You have already put that to him. I allowed you to cross-examine him further on the basis of one question that you requested the Chair to allow you to cross-examine him on. You may not put anything further to him.

CHAIRPERSON: Ms Thabete, I suppose you don't want to re-examine Mr Nkuna?

MS THABETE: Not at all Madam Chair.

CHAIRPERSON: Mr Nkuna, thank you very much for having given evidence. You may take your seat.

MR NKUNA: Thank you Madam Chair.

CHAIRPERSON: Ms Thabete and Mr Leopeng, now that we have finished oral evidence in respect of this application, are we in a position to proceed to legal argument?

MS THABETE: I am Madam Chair.

MR LEOPENG: I am too, Madam Chair.

CHAIRPERSON: Yes. Before we do so, Ms Thabete, what are your instructions with regard to the relatives of the deceased, Mr Mathonsi?

MS THABETE: Madam Chair, I did not speak to them today, but I spoke to them the last time. It was very difficult to get any facts regarding this incident, because they were not present at the scene. I don['t have any instructions to oppose, nor do I have instructions not to oppose. I just used my discretion that since they were not there at the scene of the crime, I wouldn't take any instructions as to whether they are opposing or not.

CHAIRPERSON: Do you have their particulars?

MS THABETE: With regard to address and everything?

CHAIRPERSON: With regard to names and addresses?

MS THABETE: Yes Madam Chair, I had requested Mteki to have their particulars with her, so I assume that she has them. I can ask her quickly.

CHAIRPERSON: Do you know who is present today to attend this hearing from the deceased's family?

MS THABETE: Madam Chair, I would like to verify that, but as far as I know the mother is there. I am not sure about the father, he was there the last time. Like I say, I didn't speak to them today as such, so I can verify that Madam Chair.

CHAIRPERSON: Thank you. We will take a lunch adjournment and reconvene at two o'clock. Please let's make sure that we keep to time.

ON RESUMPTION:

CHAIRPERSON: Mr Leopeng, are you in a position to give us your legal argument?

MR LEOPENG: Yes Madam Chair, I am in a position.

CHAIRPERSON: You may proceed to do so.

MR LEOPENG IN ARGUMENT: Madam Chair, it is clear from the evidence which has been led on behalf of the applicant, that the act committed on the 11th of August 1993, was committed on instructions from the command of the then Unit Commander of the SDU's in Diepkloof.

It is further clear that the intention of the Unit wherein applicant was, was solely to disarm Police Officials and not to harm or kill in order to enforce and to arm the SDU's in protecting the community from the attacks of the IFP and SAP. The objective sought to be achieved, was simply to disarm and to protect the community.

On the basis of that, I submit humbly that the action committed, was political. I further submit that it is clear from the evidence which has been led, that the applicant is not the one who opened fire and apparently the fire went off as a result of a struggle.

The intention was not to go and kill these people. This was not a premeditated thing to go and kill. That is also that appeared during the cross-examination of Mr Nkuna who clearly stated that the person was armed, the person who ran after the deceased, was armed with a shotgun which it was a palm gun, and that corroborates the evidence of the applicant to say I was armed with a Makarov pistol and not with a palm gun, which was armed by one comrade Xolani, who then during the struggle, the shot went off.

Under this circumstances, I submit that a proper case has been made out and that the applicant be granted amnesty in respect of all the offences that he has been convicted of, including that one of robbery of a firearm of a Police Official, which he was not convicted of. However, there was evidence that the firearm was taken by force from the deceased and it was handed to the SDU. Thank you Madam Chair.

CHAIRPERSON: Ms Thabete?

MS THABETE IN ARGUMENT: Madam Chair, without repeating what has already been said, it is also my submission that it is not a disputed fact that Mr Mononi was an SDU member and it should be accepted by this Committee that he was.

Evidence has also been led in several SDU hearings that it was common for SDU members to disarm policemen of their firearms in order to obtain firearms. It is also from the evidence of Mr Nkuna, he testified that he heard a shot, he did not see who shot Mr Mathonsi, so the accused's evidence stands unchallenged and undisputed.

I would also submit that I have no objections to amnesty being granted and that the act appears to have been political. Thank you Madam Chair.

Sorry Madam Chair, can I add something? I would also recommend that the victims be referred to Reparation Committee, the R&R Committee for reparation, thank you.

CHAIRPERSON: Thank you very much Mr Leopeng and Ms Thabete, for the assistance that you have rendered to this Committee.

Our decision in respect of Mr Mononi's application will be handed down during the course of the day. We therefore will request you to be around Mr Leopeng in order to have the decision also.

MR LEOPENG: I will do so Madam Chair.

CHAIRPERSON: So that I think can explain it better to Mr Mononi, it is always advisable if we hand down decisions in a set up of this kind, that Counsel is around in order to further explain the decision to the applicant concerned.

MR LEOPENG: I will also do that, and explain to the applicant.

CHAIRPERSON: Yes, thank you. We shall now proceed with the matter that was adjourned yesterday and were unable to proceed with this morning, in order to enable the victims who are from Giyani to be able to be part of the process in the application of Mr Mononi.

You will be excused whilst we proceed with the application of Mr Radebe and Mr Mkhwanazi.

We hope to be able to pronounce our decision in respect of Mr Mononi at about half past four or five o'clock. It is merely an approximation. Please don't hold us down to time.

ON RESUMPTION:

CHAIRPERSON: We are going to proceed with your matter. I don't have my pad, I think my Secretary has omitted to bring my pad. Ms Moloisane, I think we left the matter yesterday at a point where you were going to call your next witness, being one Bonga Khumalo?

MS MOLOISANE: As it pleases you Madam Chair. Bonga Khumalo.

CHAIRPERSON: Mr Khumalo, is it your intention to give your evidence under oath?

MR KHUMALO: Yes.

BONGA KHUMALO: (sworn states)

CHAIRPERSON: You may be seated. Ms Moloisane, you may proceed.

EXAMINATION BY MS MOLOISANE: Mr Khumalo, where do you stay?

MR KHUMALO: I reside at Sebokeng.

MS MOLOISANE: And during 1991, you were not in the country, not so?

MR KHUMALO: That is correct.

CHAIRPERSON: Don't put a leading question Ms Moloisane, rephrase your question.

MS MOLOISANE: Where were you during 1991?

MR KHUMALO: I was in Botswana.

MS MOLOISANE: Why were you living in Botswana then?

MR KHUMALO: I was in exile in the camps of the ANC.

MS MOLOISANE: When did you come back to the country?

MR KHUMALO: In February 1992.

MS MOLOISANE: Upon your arrival in the country, back in Sebokeng, were you given any political portfolio in the township?

MR KHUMALO: Yes, I was a member of the ANC Youth League, being Secretary of Politics in the ANC Youth League.

MS MOLOISANE: Where was your office located then?

MR KHUMALO: My office was in Zone 12.

MS MOLOISANE: Where exactly at Zone 12 was your office?

MR KHUMALO: Actually Sebokeng is just a branch and Zone 12 is a sub-branch of Sebokeng, and we had our office at Hollywood.

MS MOLOISANE: Are you referring to Hollywood Night Club?

MR KHUMALO: Yes.

MS MOLOISANE: Do you know the applicants in this case, Fanie Mkhwanazi and John Radebe?

MR KHUMALO: Yes, I know them.

MS MOLOISANE: Briefly explain to the Committee how you know them.

MR KHUMALO: One person that I know very well, is Fanie because he belonged to our branch of the ANC Youth League and Mkondo was an activist too, even though I cannot confirm his membership because he belonged to another district.

You would bear with me, I don't know their real names.

MS MOLOISANE: I have here as applicants John Radebe and Fanie Mkhwanazi.

MR KHUMALO: It is Radebe.

MS MOLOISANE: You say both were members of the Youth League, is that what you are saying?

MR KHUMALO: Yes.

MS MOLOISANE: Do you know anything about the establishment of the Self Defence Units in the township or in Zone 12, Sebokeng?

MR KHUMALO: Yes.

MS MOLOISANE: How were the structures operating and how were the formulated, start with the formulation, how were they composed of?

MR KHUMALO: Are you talking about the structures in Zone 12? When I came back into the country in 1992, it was during the violence. There was this conflict between the ANC and the IFP and there were no Defence Units and the organisation made a call after the suspension of the armed struggle, a call to the effect that people should set up structures to protect the community so that people who had been exiled, are the ones who were targeted and assigned with the task of setting up these structures.

I was assigned to assist in setting up such a structure in Zone 12 Sebokeng.

MS MOLOISANE: You talked about the organisation, which organisation are you referring to, clarify please.

MR KHUMALO: The ANC and the call had come from the National Office of the ANC that people should set up structures for self defence.

MS MOLOISANE: How were they set up?

MR KHUMALO: Zone 12 had four blocks. What happened is that we had to make sure that each area has its own Commander in charge, whose responsibility would be among other things, to recruit. There were four Units in existence and these Units had different Commanders.

MS MOLOISANE: How was each Unit composed, how many members?

MR KHUMALO: Each Unit doesn't have to have more than 10 comrades, but because of the circumstances in the township and we had many Units mushrooming, we resultantly ended up saying that each Unit should have about 18 to 20 comrades as members.

MS MOLOISANE: Now, who were the Commanders in charge in Zone 12?

MR KHUMALO: I was a Commander of my Unit. I was a Unit Commander of Zone 12.

MS MOLOISANE: If I understand you well, do you mean that you were the Unit Commander of all four Units, is that your evidence?

MR KHUMALO: Yes, that is my explanation.

MS MOLOISANE: Who were the Commanders in charge of these four Units?

MR KHUMALO: You mean the four of them?

MS MOLOISANE: Yes?

MR KHUMALO: There is one Unit that was commanded by Mabuza Mhlongo. Another commanded by Mzwakhe Stuurman, Senki Zakwe commanded another one and ...

CHAIRPERSON: Just come again with regard to the third Commander.

MS MOLOISANE: Pardon Madam Chair.

CHAIRPERSON: I didn't get the name of the third Commander. I've got Mabuza Mhlongo, Mzwakhe Stuurman.

MR KHUMALO: Senki Zakwe. And then one Unit that was commanded by Skosana.

MS MOLOISANE: Now, to which of these four Units, did the applicant in this matter belong? In whose Unit were they, Fanie Mkhwanazi and John Radebe, do you still remember?

MR KHUMALO: They were under Mabuza Mhlongo's Unit.

MS MOLOISANE: How did this Unit operate in relation to the protection of the community as you say? How did they protect, how were they required by you to protect the community?

MR KHUMALO: The name is self-explanatory, Self Defence Unit.

Initially it was a question or the question of defending the community so that we had nightly patrols. Madam Chair, you will bear with me, when we say a person should protect oneself, this means everything, but what we meant was defending the community and this involved killing.

The main thing was defending the community, including patrols, nightly patrols and daily patrols.

MS MOLOISANE: Which cases justified killing, as you say? Under what circumstances would there be killings?

MR KHUMALO: When the members were out on patrol and happened to come across an enemy, they for example had to have a Commander in charge of that Unit, during the patrol.

When they were out on patrol, the Commander in charge was authorised to issue orders to the effect that if killing was necessary, that had to be done.

MS MOLOISANE: Do you know one Hapile Nduno and Elsie Mokoena?

MR KHUMALO: Yes, I know them.

MS MOLOISANE: How do you know them?

MR KHUMALO: First of all I know them as girls who resided in Zone 12.

MS MOLOISANE: It is common cause that Hapile Nduno was shot and killed on the 15th of August 1993 and her friend Elsie Mokoena was shot and injured on that day. Do you know anything about those events?

MR KHUMALO: Yes, I heard that that incident happened.

MS MOLOISANE: From whom did you hear about them?

MR KHUMALO: I met with the Unit Commander of the applicants and I received from him a report to the effect of this incident having happened and that Hapile was killed and Elsie injured.

But it was after a few days.

MS MOLOISANE: Did he tell you under what circumstances or what led to the killing of Hapile and the injuring of Elsie Mokoena?

MR KHUMALO: Yes, he did explain it to me. Mostly Chairperson, it is that we had information regarding these ladies, this is why I did not ask many questions as to why she was killed, because we already had information about them.

MS MOLOISANE: What information did you have about them?

MR KHUMALO: Maybe I should talk about myself as to how I knew them. When I came back into the country in 1992 as I have explained, that I came back at the time when there was violence between the IFP and the ANC, and when I came back, I did not know who belonged where and what was happening.

As it is commonly known in the township that everyone would fall within their organisations, but what happened was that when I arrived, I was shown what kind of vehicles the IFP were using and who was who.

I used to see these vehicles each time when I went to the shops in the morning or during the day, going to the shops, I sued to see these vehicles. There is one friend of the victims, Meme is the name, I am not quite sure of the surname, and in most instances one would see these people parked with their vehicles there.

I started suspecting that something was going on, but at the time, the harassment of the community was not common practice. I mean concerning the involvement of girls, because what was common was that the IFP members used to come to the township, kidnap girls and take them to the hostels.

At the time it was not a question of kidnapping people, but it was a question of relationships between these girls.

CHAIRPERSON: Without interrupting your evidence in chief, the witness is giving testimony about vehicles, we don't understand which vehicles he is talking about and what they have to do with the incident in question. If you can just take charge and try and direct him so that we can get evidence that we will be able to better understand and relate to the incident in question.

MS MOLOISANE: Thank you Madam Chair. You said, you mentioned a girl by the name of Meme who was a friend to Hapile Nduno and Elsie Mokoena, is that not so?

MR KHUMALO: That is correct.

MS MOLOISANE: And you say this Meme was used to, or rather let me put it this way, you often saw Meme in the company of vehicles being driven by IFP members, is that your evidence?

CHAIRPERSON: No, that is not the evidence before us. That is what I want you to clarify. Ask him what vehicles he is talking of. There is no evidence who the vehicles belong to.

MS MOLOISANE: To whom did this vehicles belong in which you often saw Meme travelling?

MR KHUMALO: We had one prominent leader of the IFP in the township, his name is Gatise Keswa and he had his members. One person whom I used to see quite often was Oupa Smith. I don't know with whom he had an affair, but each time I saw these vehicles there, Oupa Smith was part of the group. Their vehicles were known in the township. Their Cortina's and their registration numbers for the vehicles, all of these were known.

MS MOLOISANE: Yes, now you say this Meme was a friend of Hapile Nduno and Elsie Mokoena, but we are here concerned with the incident of Hapile Nduno and Elsie Mokoena. Had you ever seen them travelling in those vehicles, or not?

MR KHUMALO: What I have said is that that is how I know them. Each time I saw them, I saw them as a group. I am referring here to Meme and Hapile and Elsie.

CHAIRPERSON: Doing what Mr Khumalo, may we ascertain because we have not been able to hear you tying Meme and her friends to anything in particular. You also made a reference to having seen Oupa Smith as being a part of a group that drove the vehicles.

You have only been able to tell us that one of the prominent IFP members called Gatise, also drove these vehicles. We however have not heard in relation to what Oupa Smith's name has been mentioned.

Is it in relation to his association with Gatise, was he also seen driving the cars that were seen being driven by Gatise and were the victims Elsie Mokoena and the deceased, Hapile Nduno seen in the company of any of the drivers of the Gatise group? Can you just clarify those issues?

MR KHUMALO: Madam Chair, with all due respect, for me to be able to respond, I would like to explain the situation in the township as it transpired. I think that will enable me to answer the question, as to how this girl died.

CHAIRPERSON: You may do so.

MR KHUMALO: What used to happen in the township was that it had become common that these girls were associating with the IFP group.

I am talking about the people who had left the township for kwaMadala hostel, or the hotel where they were staying, so that it had become difficult for people to go to town to do shopping.

People who were going to town were harassed. If a person went to town and known to be associated with an ANC person or a girl, these people would be harassed, so that a very serious hatred developed because people were being assaulted in town and the people were attacked in their homes.

They were always in the company of girls. Each time they went to the township, they would not leave the township without having harassed or attacked people.

We wanted to know how they came to the township and who they were seeing in the township, and we later on got to know who they were seeing in the township. They were continuing to harass people in the township. It was okay before the girls disappeared from the township, but later on, that created a very serious problem for the community and that I must say was not an order from the SDU, the ANC or Umkhonto to the effect that the girls must be killed, whoever was associated with Inkatha.

The situation had become out of control, that is people had decided to take the law into their own hands. We decided that we would not allow for people to be killed and if I was a member of the IFP and fled to kwaMadala, on coming back to the township, I would talk to the girl, maybe see whatever was happening, because the girl was afraid of me, she would be part of what I was saying, so that I was appointed to be in charge of the IFP, or should I say the Self Defence Unit members in the township.

They had started this quite a long time ago.

MR LAX: There is some serious translation problems going on here. We are hearing that if a girl from the township was met by somebody from the IFP and there is something very wrong going there, I am sure it is not right.

Can you just repeat that piece of your evidence please. You said you wouldn't allow the situation to happen and you wanted to start defending yourselves. Carry on from there.

MR KHUMALO: My apologies. What I am saying here is that the organisation ended up getting itself involved in the SDU matters, that was after people had become very angry having started their own Units which did not directly account to the organisation.

This came about as a result of the fact that the organisation was doing nothing about protecting the people. That is how we got involved. What is happening is that I was trying to explain that we would not as an organisation, stand aside and look while people were killed, for the mere reason that they were associating with the IFP.

In so far as Hapile and her friend is concerned, it is that they were once warned about this. They apparently did not understand what was happening within the IFP, they were just happy about the fact that they were travelling in vehicles with these people. They were lashed. Unfortunately that did not happen and that continued, so that when I arrived, I indicated that I came back in 1992, but I witnessed the situation myself. They were trafficking with these people, so that I cannot be sure as to whether they were members of the IFP or not, or whether they were just ordinary people who used to receive visits from IFP members, because they were in love or whatever.

That is what I am saying.

MS MOLOISANE: With regard to Hapile Nduno and Elsie Mokoena, what was the situation concerning these vehicles that were seen driven by Gatise and his friends, or his associates?

MR KHUMALO: What I am saying here is that I cannot directly implicate a person. I was not dealing with them, what I am saying here is that I only knew about these resulting from the rumours that were circulating. People were complaining about these things.

People had to verify this as it was rumoured, so that we could not react upon rumour to the effect that a person is an informer. At that time, (indistinct) was a common term used to refer to an informer.

We therefore could not have allowed this situation to persist. At the time, there were comrades deployed in that area which would justify the acts of certain people. The duties of the SDU was to make sure that people are protected, but we had underground Umkhonto structures who people or structures who would verify information as to whether a person was an informer or not.

I personally was not part of that, and as a result, I do not know what became of the Hapile case. All I know is that she was killed. I am trying to explain that people ...

MR LAX: Mr Khumalo, sorry to interrupt you. You are going in a very long roundabout, is the bottom line really not this, you have no personal knowledge that these two victims were involved in? Everything that you know about is rumours, stories that were circulating in the township about being seen in cars and all that stuff, this is just speculation and rumours and hearsay on your part, is that not correct, yes or no?

MR KHUMALO: No. What I am saying here is that apart from the rumours, yes, these girls were associated with the informers. As a result of that, this created an impression that they were informers or spies of the IFP.

CHAIRPERSON: You know Mr Khumalo, I am sure before you came to give evidence before this Committee, you must have been apprized by Ms Moloisane, about the relevant aspects of the evidence that you will have to testify about which would go to support the application of the two applicants, Mr Radebe and Mr Mkhwanazi.

Your evidence must be in context and relate in a material respect, to that given by Mr Mkhwanazi and Mr Radebe. By so saying, I am trying to say I still have not been able to understand where this evidence is taking us in relation to the applications that we have to decide on.

Ms Moloisane, we will urge you on behalf of the Committee and in the interest of time, that you please direct questions that are really going to assist us in deciding the applications of Mr Radebe and Mr Mkhwanazi, bearing in mind the evidence already given by the two applicants.

It is very important for us to put supporting evidence in context.

MS MOLOISANE: I do understand Madam Chair, I have explained to the witness during consultation what the purpose and the relevance of his evidence would be in this application.

CHAIRPERSON: Yes, I hope you will be able to intervene periodically in order to direct and redirect his evidence.

MS MOLOISANE: As it pleases you Madam Chair.

CHAIRPERSON: And I am sure you will understand that you are doing this because you know what is material and what may not be that material in relation to what he wants to tell us.

MS MOLOISANE: As it pleases you Madam Chair. Mr Khumalo, don't be too fast, be slower and wait for questions to be posed to you, don't just go about explaining things the way that they were.

In relation to the orders that you were required to give as the Commander of the Zone 12 Unit, did you issue any orders to either of the Unit Commanders that Hapile Nduno and Elsie Mokoena should be shot and killed?

MR KHUMALO: Are you talking specifically about the Nduno incident? No.

MS MOLOISANE: Hapile Nduno and Elsie Mokoena?

MR KHUMALO: No, those orders did not come from me.

MS MOLOISANE: Who was in charge with such orders, with the issuing of such orders?

MR KHUMALO: I would like to go back and say that each one of the four Units, had their own Commanders, authorised to give such orders, without having to wait for me to issue such orders.

Such orders were justified.

MS MOLOISANE: If I understand you well, you said in your evidence that (indistinct) or spies had to be killed, is that correct?

MR KHUMALO: Yes, that is correct.

MS MOLOISANE: Did you issue any kind of orders to the Unit CHAIRPERSON: Commanders that (indistinct) should be killed?

MR KHUMALO: What I am saying is that the order was general so that any Commander would have to kill (indistinct) on seeing one.

MS MOLOISANE: So you also said in your evidence that this order came from the organisation, is that correct, meaning the ANC? In fact the instructions that (indistinct) should be killed.

MR LAX: He didn't say that Ms Moloisane. He didn't say that at all. He said the ANC had set up structures to defend the community. It was much earlier in his testimony, but if you want to elicit that information from him, go ahead and do so.

MS MOLOISANE: Committee member, let me put it this way, did the National - the organisation give you any orders as to what had to be done with the (indistinct)?

MR KHUMALO: You will remember that the setting up of the SDU's were after the ANC had committed itself to peace in the country so that it could not have said that people should be killed, but the SDU's was assigned with the task of protecting the community.

In that operation of protecting people, people would be killed, not that the ANC said the SDU's should kill people.

CHAIRPERSON: May I with your indulgence Ms Moloisane, just clear one aspect which is causing me some problems.

You have just testified that you did not issue any order that Ms Nduno and Ms Mokoena should be killed. You however, have gone on to say each of the four Unit Commanders were authorised to issue such an order.

Now, who would have been the person to have given the Unit Commanders such authority?

MR KHUMALO: Madam Chair, I said here in particular with reference to the Nduno and Elsie incident, I did not issue any order.

I used to issue orders to the effect that on seeing (indistinct) in the township, such a person should be killed and it transpired that Elsie and Hapile became victims following the general order, not that the order was specifically issue for them.

CHAIRPERSON: Are you therefore saying that you gave a general order as it were, to the Unit Commanders of the four blocks in Zone 12, to kill (indistinct), is that what you are saying?

MR KHUMALO: Yes, that is what I am saying.

CHAIRPERSON: How different is that from the order to kill the ladies in question, may we understand you on that one?

MR KHUMALO: What I am trying to explain here, what I am trying to say here is that I did not specifically talk or speak to a specific Unit Commander that they should go and kill Elsie and Hapile. What I am saying is that these two became victims of a general order.

There was no specific order for them to be killed.

MS MOLOISANE: Who issued that order, that general order that you are referring to?

CHAIRPERSON: You wouldn't know, would he, he gave a general order to specific Unit Commanders and it would be upon the individual Commanders to effect his general order.

MS MOLOISANE: As it pleases you Madam Chair. Earlier on you were testifying about the involvement of Hapile Nduno, Elsie Mokoena and this Meme with Gatise and other IFP people. Would you clarify or elaborate what you mean?

MR KHUMALO: I said this in response to your question as to how I knew Hapile and Elsie. I was explaining that apart from the rumour that was circulating, a rumour to the effect that they were trafficking with the IFP, I am saying here that mostly I used to see them all together.

I am talking here about a group of girls who used to exchange visits, and the IFP members would come and pay them visits. That is what I am saying.

CHAIRPERSON: Mr Khumalo, I am at a loss now with your evidence in this aspect. I thought when you were questioned by a member of this Committee in relation to this aspect, you admitted that your evidence in that regard was hearsay and that you were relying on wild rumours which was circulating and was rife in your community.

Now you are saying you used to see this group yourself, you personally witnessed amongst others, Ms Mokoena and Ms Nduno in the company of people who were perceived to be IFP. Which is which?

MR KHUMALO: What I am saying here is that Mr Lax came in too soon. I wanted to rectify that that yes, there was a rumour circulating in the township, but then apart from the rumour, I did explain that each time I went to the shop or wherever, I would walk past Meme's parents' home and I would see them.

I did say that that is besides the rumours that were circulating in the township.

CHAIRPERSON: ... Meme doing, can you be specific?

MS MOLOISANE: Pardon Madam Chair?

CHAIRPERSON: What did you see Meme doing in relation to persons who were perceived to be IFP members whose cars would be parked outside her house?

MS MOLOISANE: Before he answers, he said all three of them, Meme, Hapile and Elsie so I want to know whether Madam Chair is confining the question to Meme alone, or to all three of them?

CHAIRPERSON: I would like to clear the air with Meme first, because that is where I think the car would be parked, it would be parked at Meme's home. Have I understood your evidence correctly Mr Khumalo, in that regard? Yes?

MR KHUMALO: What I am saying, here we are talking about association, the association of the girls with the IFP people.

I am therefore saying that I confirm that they associated with these people and I used to see them there. There is no one incident to which I can refer as to what they were doing with the IFP members, but I am saying that usually they were visited by the IFP members in the township. I don't know what they were discussing, I have no idea.

MR LAX: The question that has been put to you is a very simple one. You are making a very generalised statement which you have already conceded is largely based on hearsay and rumours.

However, we are trying to understand that from the things you did see, what did you see so that you could maybe form an opinion to substantiate something. What we would like to understand from you is, what facts, what things did you actually see with your own eyes and so far, all you have told us, is that you saw these cars parked outside Meme's parents' home and some very vague reference to the three girls, but exactly what they were doing and who was doing what with whom, is not clear.

That is what the Chairperson is asking you. Do you understand? Do you understand, just yes or no and then I will ask you my question. Don't argue with me, just answer.

MR KHUMALO: Yes, I understand.

MR LAX: Thank you. Now please explain to us, on how many occasions you saw these girls at Meme's house where there were IFP cars there?

MR KHUMALO: I wouldn't say how many times, but it was more than once.

MR LAX: Did you see the cars outside the house on how many occasions?

MR KHUMALO: I cannot recall.

MR LAX: Did you actually see the girls at the house or did you just see Meme at the house, or which girls did you see at the house?

MR KHUMALO: It was a group of girls, they were always in a group.

MR LAX: Can you identify which girls were in the group and on how many occasions you saw each of them present?

MR KHUMALO: Meme, Hapile, Elsie, Ndonbimbi who has since passed away, I still remember the four.

MR LAX: There were four girls at Meme's house and you saw them there as a group? Were they always there as a group or were there different permutations of them?

MR KHUMALO: I would not for certainty say that they were always in that group of four, but I used to see their faces often.

MR LAX: Did you see them at that house quite soon before they were killed? I mean quite soon before the one was killed, I beg your pardon, and the other one was attacked?

MR KHUMALO: Would you please repeat the question.

MR LAX: Well, you will be able to have a point fixed in your mind, because you made enquiries or you discussed this matter with the Unit Commander a few days after it happened, remember that? You told us that in your evidence?

MR KHUMALO: Yes.

MR LAX: So you will be clear about when it happened, correct?

MR KHUMALO: Yes.

MR LAX: Did you see these girls present at that place in Zone 12, just before they were killed? Say a week or two weeks before they were killed, or even whenever, I am not sure?

MR KHUMALO: No.

MR LAX: How long before this incident took place, did you last see those girls at that house?

MR KHUMALO: I had not come across them since I was a Commander. I don't think I could have come across them again, because most of the IFP members were avoiding me in many instances.

We only met at a battlefield.

MR LAX: That was Meme's parents' home, wasn't it?

MR KHUMALO: That is correct.

MR LAX: You didn't see her at her parents' house roundabout the incident?

MR KHUMALO: I saw her.

MR LAX: But I have just asked you, roundabout the inc