Amnesty Hearings — East London — 1999-11-03

MR MGXAJI: Although at that time you had no basis to hold the view of belief that they were APLA members, Third Party Units, do you still as you testify now, hold that belief?

CHAIRPERSON: Does it matter what he believes now, isn't it important to know what he believed then?

MR MGXAJI: I am still getting there, if he may answer.  What is your answer sir?

FUNDISELE GULENI: I cannot say that - I got that information from you, I had no idea about that, that they were students.

MR MGXAJI: I put it to you that from the moment you got into Mzwandile's 4x4, one not being under attack, two having no basis to hold that those were APLA or PAC members, you were not carrying out any political objective.  What would you say to that?

FUNDISELE GULENI: I would disagree with that statement.

MR MGXAJI: Mr Chairperson, I want to find out whether this Committee may afford the victims the opportunity to call a witness, they couldn't be able to finance to this hearing.

CHAIRPERSON: I don't follow, is it a witness that is not here?

MR MGXAJI: He is, presently My Lord, he not here.

CHAIRPERSON: And the reason for him not being here is that the family could not afford to bring him.

MR MGXAJI: Afford his bus fare.

CHAIRPERSON: To come here?

MR MGXAJI: To come here.  He is available in Umtata and he was with Mr Mapipa, in fact, seated next to him, in the front seat.  Essentially his testimony would be on the basis that it was not only two attackers at Mr Mapipa's van, that were there, and what would be sought to be proved by that evidence will be that the applicants have not made a full disclosure.

CHAIRPERSON: Mr Mgxaji, why wasn't the Commission approached earlier than today about that, so that arrangements could be made if necessary?

MR MGXAJI: It is a matter My Lord, which I on the instructions of Mr Mapipa, the brother to the deceased, raised with Mr Japhta.  Unfortunately he indicated that only two from the victims' family could be accommodated.  It is a matter also in the course of this morning, I intimated to the Leader of the Evidence, but given the hour, it is a matter which we couldn't be able to thrash out and see whether it could be accommodated.  It is for that reason that I put it before His Lordship.

CHAIRPERSON: Okay, let's look at this factually.  I would like the families to hear what I am going to ask.   If one reads the Act properly, it talks about a bona fide belief, that is why I asked you the question just now, what is important - what he now believes or what he believed then?  The importance of that question is, assuming what you put to them, to the witness, correct factually, that they were not APLA members at the time, but they were students, two things.  You've got that concession from the witness already, so if that witness is going to come and say "I was a student and only two people ..." or whatever he is going to say about the number of people that came to the van, is that going to change anything substantially?  Let's examine it, I mean I haven't got an answer yet.

MR MGXAJI: Yes.   I may submit My Lord, that in so far as the question of full disclosure, it might be so when one looks at the state of mind of Mr Guleni at the time, that he might genuinely have believed that those were APLA members, that view would not be far-fetched, but also the second leg of a full disclosure.  On the number of people who attacked that motor vehicle, certainly that witness having been there and the survivor, will proffer testimony to the contrary.  Those are my instructions, if the Committee attaches any value to it.

CHAIRPERSON: Mr Mgxaji, I have just spoken to my colleagues here.

MR MGXAJI: Yes, My Lord.

CHAIRPERSON: And we are unanimous in one aspect, it is that where we are talking about an ambush which is the case here, an ambush and an attack, does it matter whether two people went to the van or five or ten, is that going to make a substantial difference?  I don't know how many people you are talking about, maybe you better put it to him and it may clear your own mind.  I mean, I have come across cases where people said we stabbed him five times, and the Doctor says seven times, so the victim got stabbed.  That is the important issue.  Maybe you can put it to him that it is going to be said that how many people your instruction says, went to the van, in fact went, and let's see what he says.

MR MGXAJI: One thought of an injunction which His Lordship would make, that of putting maybe as a fact or proposition to the applicant and the injunction would be that if that person is not going to be called to proffer evidence, should we subject the applicant to that line of questioning?  One sought to avoid that ...

CHAIRPERSON: ... let me be helpful to you then.  What does your instruction say, how many people went to that van?

MR MGXAJI: The instructions from the family and from the witness of the family is that there were two vans with two Units who were (indistinct)

CHAIRPERSON: The victim?

MR MGXAJI: The victim.  All of them participated in the attack, there were not four.  There could be eight or ten in number.  Now, I put that to His Lordship, not because I may not have or think what could be the finding of another person, in this case, His Lordship, but I wouldn't want a situation where in having been instructed to represent the victims, I get out of this Committee without having ...

CHAIRPERSON: Put the case.

MR MGXAJI: All that I could as instructed.

CHAIRPERSON: Fair enough.  I would put it to him then.   Mr Guleni, the proposition is that in chasing and ambushing Mr Mapati's vehicle, there were two motor vehicles that chased him, first of all what do you say about that?  There were two vehicles that ambushed him?

FUNDISELE GULENI: That is not true sir.

CHAIRPERSON: That is not true.  They say further when the van, when Mr Mapati's van was finally brought to a standstill, far more than two people went to Mr Mapipa's vehicle.

MR MGXAJI: Mapipa.

CHAIRPERSON: Sorry, Mapipa.

FUNDISELE GULENI: That is also not true Chairperson, only two people approached the car, myself and Mzwandile.

CHAIRPERSON: How many people did you find there in that car?

FUNDISELE GULENI: We found two people, one who appeared to be dead and the other one was Mr Mapipa, who was later finished off by Mzwandile.

CHAIRPERSON: Nobody else?

FUNDISELE GULENI: From the look of things when I looked at that car, there was no other person.  As I said, it was dark and I only looked in the front seat of the car, and Mzwandile was standing in front of the vehicle and he was asking, but since the van had a canopy, we did not look at the back and I am not sure if there was anybody else there.

CHAIRPERSON: Or those may have run away, whatever?

FUNDISELE GULENI: Perhaps the people had run away, if they were there.

CHAIRPERSON: Mr Mgxaji, you have his denial that that didn't happen.

MR MGXAJI: My Lord?

CHAIRPERSON: You have his response to the proposition, or the two propositions that he denies.

MR MGXAJI: Yes, I do, but certainly it might perhaps be purely a legal mind evaluating evidence proffered and regardless of whether there has been admissions with regard thereto, or denials, differs markedly from assessing purely from one  version or source.  I will take it in so far as evidence is concerned, if at all, there is any material significance attached to evidence.  As I say My Lord, that might purely be the function of a legal mind, and for the purpose of the Committee, it may not be valuable an impression.  It is a matter that I cannot take any further My Lord, as I say those are purely my instructions.  May I just put on the last two questions from me.    Mr Guleni, the ANC as an organisation decries political violence on opponents from the left in the political scenario in this country.  Will you agree with me?

FUNDISELE GULENI: Yes, I agree with you.