Amnesty Hearings — Durban — 1999-06-23

MS LOONAT: Please tell the Members of the Committee why you committed this heinous crime?

CHAIRPERSON: Hasn't he done that, isn't his evidence that he was instructed by his commander?  Is there anything else that you want him to lead before us?  Before you answer that Mr Ncishane?

MS LOONAT: No Madame Chair thank you.
	When you committed these offences, were you in possession of a firearm?
	I know I say this in my supplementary affidavit, should I not refer to it Madame Chair?  Okay.
	Please tell the Committee Members if you own a firearm?

PHAZIMANI JOE NCISHANE: Yes I did have a firearm but I did not carry it on that particular day.  I had a home made firearm.

MS LOONAT: A home made firearm is an unlicensed firearm, do you still - you're not in possession of it any more and you weren't - sorry, I'll put that question again.
	On the day of the attack, did you take your firearm with you?

PHAZIMANI JOE NCISHANE: No, I only carried a stick.

MS LOONAT: So how are you responsible for the death of the two men concerned?

PHAZIMANI JOE NCISHANE: I assaulted one of them.  I ran away with regards to the other one.

CHAIRPERSON: Which one?  Did you assault Mavundla or the other person's whose identity is unknown to you?

PHAZIMANI JOE NCISHANE: Mavundla?

CHAIRPERSON: Yes, how did you assault him?

PHAZIMANI JOE NCISHANE: I assaulted him with my stick.

MS LOONAT: Why did you assault him with your stick?  What was the purpose?

PHAZIMANI JOE NCISHANE: They had shot at him and he would not fall down.

MS LOONAT: Who is they that had shot at him?

PHAZIMANI JOE NCISHANE: My co-accused seated across me, Themba Ngcobo as well as My Boy Mavuso.

MS LOONAT: So he did not fall down so you hit with your knobkierie.  Please carry on?

CHAIRPERSON: Sorry Ms Loonat.
	How many times did they shoot him?

PHAZIMANI JOE NCISHANE: I heard two shots and then I heard another shot, a third shot.

CHAIRPERSON: Who fired the first shots?

PHAZIMANI JOE NCISHANE: It was My Boy but I did not see where he hit him.

MS LOONAT: What time of the day was this?

PHAZIMANI JOE NCISHANE: It was about 8 in the morning.

ADV DE JAGER: And you believed that this man was protected by muti that's why you hit him with a knobkierie?

PHAZIMANI JOE NCISHANE: Yes that is correct.

MS LOONAT: What did you do after that?

PHAZIMANI JOE NCISHANE: Thereafter one of us said the soldiers were coming and then we fled the area, fled the spot.

MS LOONAT: At this point two men had been shot, is that correct?

PHAZIMANI JOE NCISHANE: Yes, I do not know the other man's name.

MS LOONAT: Do you know if they were dead before you left the scene?

PHAZIMANI JOE NCISHANE: I could not see.

MS LOONAT: You said that your instructions were to kill the two gentlemen.  How could assaulting him with a knobkierie achieve that?

CHAIRPERSON: I didn't get your question, would you please repeat?

MS LOONAT: Madame Chair, I was asking my client that his instructions from his commander was to kill the two gentlemen concerned, both IFP members, however my client assaulted him with a knobkierie.  I wanted to know how did he think he was going to achieve what he set out to do with just a ...(indistinct) in his hand.

PHAZIMANI JOE NCISHANE: That was a weapon that I knew how to use and that is what I carried.  I was not familiar with a firearm, that is why I decided to carry that stick on that day.

ADV DE JAGER: And that was a deadly weapon, it was a heavy weapon that could kill people, isn't that so?

PHAZIMANI JOE NCISHANE: It was a knobkierie.

ADV DE JAGER: Yes and you wanted to kill him because you've been instructed to kill him?

PHAZIMANI JOE NCISHANE: If we had not been told that the police were coming we would have killed him.

ADV DE JAGER: And you considered them to be your political enemy?

PHAZIMANI JOE NCISHANE: Yes.

ADV DE JAGER: Thank you.

MS LOONAT: Could you not have gone to the police to sort out your problems?

PHAZIMANI JOE NCISHANE: We could not go to the police because the police in that area collaborated with IFP.

MS LOONAT: What proof have you of that?

PHAZIMANI JOE NCISHANE: I am telling the truth, that was the case, they were ZP, kwaZulu Police.

CHAIRPERSON: That is the perception that you held in your area as ANC members, is it not?

PHAZIMANI JOE NCISHANE: Yes we used to see them.

CHAIRPERSON: Yes but that is what you believed as ANC members, you don't need to have proof to that effect, it was perceived that the police were collaborating with the IFP in certain quarters of kwaZulu Natal?

PHAZIMANI JOE NCISHANE: Yes that is correct.

MR MALAN: Sorry Ms Loonat, just for my clarification, why should he have gone to the police?  What's the purpose of the question?

MS LOONAT: It appears that they took the law into their own hands and I was trying to find out if there was perhaps another way that they could have eradicated these faction fightings and asking the police for assistance.

CHAIRPERSON: It wasn't faction fighting was it, Ms Loonat?  These were political conflicts.

MS LOONAT: I beg your pardon, the political attacks.

CHAIRPERSON: Chain of attacks and counter-attacks by and between the two political organisations or members of the two political organisations?

MS LOONAT: That is correct, Madame Chair, I beg your pardon.

MR MALAN: Was any evidence introduced that I missed that he had knowledge of any crimes committed by any of these two members, these two persons killed, the two victims, for which purpose he was suspected to go to the police?

CHAIRPERSON: In short, we don't think the questions you are leading are relevant because you must always bear in mind what is already before us.  What is before us is that here is a person who is acting on instructions of a commander, to go and kill people that he has been told are his political opponents?

MS LOONAT: I beg your pardon.
	Mr Ncishane, when you sat with Mr Ngcobo, having these meetings as an ANC supporter, what was actually discussed, what was actually happening to you at the time, what were your sufferings or what were you suffering at the time?

CHAIRPERSON: Do you mean him personally as an individual because you are going to elicit all kinds of evidence from him that might not be pertinent to his amnesty application.  You're not trying to ascertain the kind of evidence that will shed more light about whether there were political conflicts in the area and in that case ask a pointed question so that you can elicit a pointed response.

MS LOONAT: Thank you Madame Chair.
	Mr Ncishane, you did say that you're experiencing problems with the IFP members at the time.  I just need to go back a little bit, Madame Chair.

ADV DE JAGER: I think we've agreed that it was common cause at that stage that there was an ongoing war between the two political factions, I think that's - unless there's something specific that you want to add to it, because I don't think it's disputed I think it's common cause that at that stage there was an ongoing war.  He was a martial, he was instructed to go and kill these people in an operation of at that stage in this war.  So I'm satisfied as far as that is concerned that he acted against a political opponent in a situation of war in the conflicts of the past.

MS LOONAT: Okay, may I just lead my client into why he left his employment which leads up to when he got his instructions to the killing.

CHAIRPERSON: But is that relevant?

ADV DE JAGER: Ja is it relevant to whether he was employed or not?   Sorry.

CHAIRPERSON: Is that really relevant, efficiently relevant to what seems to be the crux and the ambit of your application which is that he's applying for amnesty on the basis that he was acting on instructions by Mr Ngcobo who is a commander, unless of course it is going to be disputed that Mr Ngcobo was a commander of Mr Ncishane?  He's acting on instructions?