Amnesty Hearings — Durban — 1999-09-20

MR MALAN: Sorry, Mr Panday, I just want to put this to the witness, because I'm referring now to the Judgment on page 32 of the bundle.  Mr Dlamini, in the trial you pleaded guilty to the possession of that firearm that was produced in court, I'm referring to the middle paragraph on that page, page 32, where the Judge says
"It is finally not in dispute that upon his arrest, accused number 1", and that is the applicant, "was found in possession of that firearm, exhibit 1.  Accused number 1 pleaded guilty to count 6", that's that specific charge, "but his plea was changed to one of not guilty because he disputes that the firearm was capable of discharging ammunition."
Mr Dlamini, could you understand what I was reading here?

MOSES MTU DLAMINI: Yes, I do understand that.

MR MALAN: So at your trial you told the Judge that that firearm that they produced was indeed your firearm, but it couldn't fire a shot because it was broken.  You understand that?

MOSES MTU DLAMINI: Yes.

MR MALAN: Now why did you at your trial say it was your gun and now at the amnesty you say it was not your gun?  Why did you lie to the Judge, telling him that that firearm that they produced was yours?

MOSES MTU DLAMINI: They agreed among themselves, I did not say a thing in the Supreme Court, they were doing the talking.

MR PANDAY: Mr Dlamini, ...(intervention).

CHAIRPERSON: Mr Dlamini, if I may interpose Mr Panday, you are aware obviously that if you state that you've been unlawfully convicted of something that you did not possess and this is with regard to the conviction of being in unlawful possession of a firearm, that when you state that you were unlawfully convicted thereof, this Committee is not in a position to grant you amnesty, because you were convicted of something that did not belong to you, you did not unlawfully possess the weapon for which you were convicted.  You are aware of that?

MOSES MTU DLAMINI: The Judges were obviously using apartheid laws which were still active, so they succeeded in sentencing us.

CHAIRPERSON: What I merely wanted to draw your attention to is the fact that unfortunately we as a Committee will not be in a position to entertain your application, if you state and I don't have a problem with what you are stating, if you state that you were unlawfully and wrongfully convicted of this offence.  We can only grant you amnesty if your conviction was the correct one.  Do you understand what I am putting to you?

MOSES MTU DLAMINI: Yes.

CHAIRPERSON: I just want you to be aware of the procedure that we are operating with.  We only grant amnesty to people who have been correctly and lawfully convicted, not people who have been incorrectly convicted, as in your case.

MOSES MTU DLAMINI: Yes.

CHAIRPERSON: You may proceed, Mr Panday.

MR MALAN: May I just follow up?  Sorry Chair.  When I asked you, when I read this paragraph out to you from the Judgment, I heard you answer that they agreed amongst themselves in the court and then you said, "I did not say a thing."  Did I hear you correctly?  Let me take it further, did you give evidence in court?  Mr Dlamini, I'm speaking to you.  Did you give evidence in court?

MOSES MTU DLAMINI: I have explained that they spoke among themselves and made a decision among themselves.

MR MALAN: Did you not speak?

MOSES MTU DLAMINI: I did not say a thing.

MR MALAN: But Mr Dlamini, the whole Judgment analyses also your evidence, you gave evidence in your own defence and you were cross-examined on that evidence.  Now why do you tell us that you didn't speak a word?  I'm asking you these questions because it's important that you make a full disclosure and that you tell us the truth about everything that we think is relevant to your application.  Now, I don't think we can find that you did not give evidence in court on the papers before us, yet you're telling us you did not speak, you did not say a thing.  What must we believe?

MOSES MTU DLAMINI: I would appeal that you withdraw this application, just forget about it.

MR PANDAY: Sorry, Madam Chair, maybe, may I have an adjournment.

CHAIRPERSON: No, you may not Mr Panday, you may proceed and conclude your evidence-in-chief.

MR PANDAY: Mr Dlamini, to summarise your evidence before this Committee I'm going to put forward the following statements and you will either confirm or deny what I have said.

CHAIRPERSON: May I interpose, Mr Panday and know what's the import of that summary?  He has already given evidence.  You have led him and all the evidence that you wanted him to give before this Committee has been given as a result of you having led him.  Is it really necessary to summarise.  Isn't it something that you can do when you address us in argument.

MR PANDAY: As Madam Chair pleases.  Madam Chair, I just have one question to put to Mr Dlamini before I close Mr Dlamini's evidence.  Mr Dlamini, I'm going to take you back to the time when the victim was allowed to go after the disciplining.  Do you remember that time?

MOSES MTU DLAMINI: I am not going to talk about this anymore.  It just gives me a sore heart.  I lost someone that is why I am saying this whole thing should be discontinued.

MR PANDAY: Mr Dlamini, I am going to appeal to you.  This is only one question I need to ask from you and I hope that you give me an answer.  When the decision was taken to kill the victim, who took that decision?

CHAIRPERSON: Hasn't this issue been sufficiently covered, Mr Panday?  Or are you laying the basis in order to lead more critical evidence, which was omitted earlier on.

MR PANDAY: I'm laying the basis to lead evidence that may have been omitted Madam Chair, that may be crucial to the actual murder of the victim, which the applicant is applying for amnesty for.

CHAIRPERSON: Bearing in mind that we do have the first decision which was taken by the entire group and that was to meter out the punishment and the subsequent decision that was, in terms of the evidence tendered before us, taken by Mr Ntshetha, bearing in mind those two distinctions, you still wish to pursue the giving of further evidence in relation to the first incident?

MR PANDAY: This is not in relation to the first incident, Madam Chair, it's in relation to the second incident where Mr Ntshetha had advised that the victim be killed.

CHAIRPERSON: Yes.

MR PANDAY: It's just bearing on that incident there.  Once that is clarified that will be the end of the evidence required.

CHAIRPERSON: Yes, I hope you do get to the 2nd incident, which is the basis of his application much quicker.

MR PANDAY: Yes, Madam Chair.

CHAIRPERSON: Don't take too long laying a basis for something that's not going to be that materially relevant to us or which I think is not going to be sufficiently relevant.

MR PANDAY: Mr Dlamini, when Mr Lucky Ntshetha in the evidence mentioned that the victim needs to be killed because he can bring back more IFP supporters to attack us, were you at any stage given any instructions?

MOSES MTU DLAMINI: I did explain that Sinangwenye was the one who informed us that the victim should be killed.

MR PANDAY: Mr Dlamini, you mentioned that you tried to fire your weapon and the weapon did not fire.  On whose instructions did you try to fire the weapon?  Was it on your own account or on someone's instructions?

MOSES MTU DLAMINI: Lucky Ntshetha said I should fire.  I tried but the weapon failed.  He stabbed him and that's how he died.

MR PANDAY: And why did you listen to Lucky Ntshetha?

MOSES MTU DLAMINI: He is my leader.

MR PANDAY: Thank you Mr Dlamini.  Nothing further Madam Chair.
NO FURTHER QUESTIONS BY MR DLAMINI

CHAIRPERSON: Thank you, Ms Mtanga do you have any questions to put to Mr Dlamini?

MS MTANGA: Thank you Chairperson, I only have one question.

CHAIRPERSON: Yes, you may proceed and put your question to Mr Dlamini.