Amnesty Hearings — Pinetown — 2000-02-14

CHAIRPERSON: What matter are we going to start with?

MR MAPOMA: Thank you, Chairperson.  Chairperson, for the record my name is Zuko Mapoma, the Evidence Leader.  I'm calling the matter of Gebu Fanyana Ngubane, amnesty application 3272/96.  Thank you.

CHAIRPERSON: Right, is anyone else appearing in the matter?

MR DEHAL: Mr Chairperson, thank you very much, and Honourable Members, my name is Dehal, Roshan Dehal.  I represent the applicant in the matter, I'm assisted by Fatiema Mohammed.  Thank you.

MR PANDAY: Thank you, Mr Chairman.  The name is S Panday, I appear on behalf of the victims in this matter.  Mr Chairman, if I may first place on record that there is currently a witness, that is the girlfriend of the deceased that is being sought for, and at present as to my instructions on the last occasion, the application is being opposed.  I've spoken to the wife of the deceased's brother, she says she's in the position to advise me as to whether she's opposing the application or not, until the brother comes.  If I can just place that on record as it stands, thank you.

CHAIRPERSON: The Committee consists of myself, Andrew Wilson and Messrs de Jager and Sibanyoni.  Right, can we now continue.

MR DEHAL: Thank you, Mr Chairperson.  For the applicant the evidence would confine itself to the testimony of the applicant himself.  May I lead him?  May he be sworn in.

MR SIBANYONI: Please rise, Mr Ngubane.  Please give us your full names.

GEBU FANYANA NGUBANE: (sworn states)

MR DEHAL: Thank you, may I proceed?  Thank you.
	Mr Ngubane, you are the applicant in this matter and you have before you the bundle of papers, do you mind looking at your application which is pages 1, 2 and 3 of the bundle.  Do you confirm that that is your application?  Sorry, I'll show you that.

GEBU FANYANA NGUBANE: Yes, I do.

MR DEHAL: And in the bundle is contained a statement by yourself, pages 4 and 5 in Zulu and pages 6 to 7 being the typed English version thereof.  Do you confirm that as being your statement?  These two pages in Zulu and these two in English?

GEBU FANYANA NGUBANE: Yes, I do.

MR DEHAL: Thank you.

JUDGE DE JAGER: It seems as if they're all in English.

MR DEHAL: I'm sorry, forgive me.  Yes, indeed, the distinction being the one being in handwriting and the other types, thank you.
	In addition you have today caused to be circularised a typed statement, a copy of which you have before you, this here.  Do you confirm that that is your statement?

GEBU FANYANA NGUBANE: Yes, I do.

CHAIRPERSON: Can we mark that Exhibit A.

MR DEHAL: I'm indebted to you.
	Okay, I will read the statement slowly and it will be interpreted to you.  If at any stage you wish to add anything as I read, please do so.  Do you follow me?  Thank you.   This is your statement, paragraph 1 you say -
"I am an adult male, born on the 9th of June 1967, presently residing at Umkababa LP School at Umkababa".
	On the 17th of December 1982 you were convicted of murder and sentenced to six years imprisonment, do you confirm that?

GEBU FANYANA NGUBANE: That's correct.

CHAIRPERSON: Are you giving the interpreter time?  I think you should slow down a little.

MR DEHAL: I think I should also arrange a copy to be given to the interpreters, perhaps that will help.  Thank you, Judge.
	Paragraph 3 you say -
"During January 1992, and at the Umkababa area, there was faction fighting between members of the African National Congress and the Inkatha Freedom Party".
Correct?

GEBU FANYANA NGUBANE: That's correct.

MR DEHAL: And in paragraph 4 you say
"I was an ardent follower of the African National Congress.  I was a member of the ANC.  The youth Chairperson was one, Lindani Mashlesa".
Correct?

GEBU FANYANA NGUBANE: That's correct, Sir.

MR DEHAL: In paragraph 5 you say
"During or about the 1st of January 1992, I was accompanied by Izak Msomi and Kwazi Mbambo.  Msomi and I were staying at a house which was owned by Mr Myene.  (Sorry, it should be Mr Myene and Mimyene).  Mr Myene had fled from the area, this because there was fighting between members of the ANC and the IFP."

JUDGE DE JAGER: Could you pause there for a moment.  He fled the area, was he an ANC member?  Was this area controlled by the IFP?

GEBU FANYANA NGUBANE: It was a mixed area, both ANC and IFP members resided in it.

MR DEHAL: Thank you.  Then you proceed to say in paragraph 6 that
"On the morning of the 7th of January 1992, the deceased in the company of seven black males, approached the house which Izak Msomi and I were guarding."
You confirm that?

GEBU FANYANA NGUBANE: Yes, I do.

MR DEHAL: In paragraph 7 you say
"These seven males were known to me, they were previously members of the African National Congress, who then deflected to the Inkatha Freedom Party.  These males were all armed with home-made firearms and assegais.  Their intention was to attack us."
Is that correct?

GEBU FANYANA NGUBANE: That's correct.

MR DEHAL: Paragraph 8 you say
"Izak Msomi and I ran away.  The seven men chased us.  During the chase the deceased caught up with me.  I fell.  The deceased had me pinned to the ground and stabbed me twice.  He made several other attempts to stab me, but I successfully blocked."
Correct?

GEBU FANYANA NGUBANE: That's correct.

MR DEHAL: In paragraph 9 you say
"I thought of the various occasions when the deceased had attacked and killed other ANC people.  I knew now that I was going to die.  I noticed Msomi come to my rescue.  When I managed somehow to overpower the deceased, all I recall is that I took away his knife from him and stabbed at him."
Is that correct?

GEBU FANYANA NGUBANE: That's correct, Sir.

MR DEHAL: In paragraph 10 you say
"I did not intend to kill him but just to subdue him so that I could escape.  Later I learnt that the deceased died as a result of three stab wounds.  I admit that it is very possible that I caused all three stab wounds and consequently caused his death."
Is that correct?

GEBU FANYANA NGUBANE: Yes, I do.

MR DEHAL: In paragraph 11 you say
"At the time I stabbed the deceased, I acted in self-defence."
Correct?

GEBU FANYANA NGUBANE: Yes, that's correct, Sir.

MR DEHAL: In paragraph 12 you say
"I confirm that I was attacked merely because I was a member of the ANC and was a supporter of the said political organisation."
Is that correct?

GEBU FANYANA NGUBANE: That's correct.

MR DEHAL: And in paragraph 13 you say
"I do apologise for having attacked the deceased and caused his death.  He belonged to the Inkatha Freedom Party and was involved in attacking many ANC people, merely because they belonged to the African Congress."
Correct?

GEBU FANYANA NGUBANE: That is correct.

MR DEHAL: Now that is Exhibit A, your statement.  May I just deal with another aspect.  Is it correct that you were convicted of this murder and sentenced to six years imprisonment and that you have now served your term of imprisonment and you are presently out of prison?

GEBU FANYANA NGUBANE: That's correct.

JUDGE DE JAGER: Mr Dehal, for what is he applying, is he applying for murder or what?  What ...(indistinct - no microphone)

MR DEHAL: Murder, yes.  Because he accepts ...(intervention)

CHAIRPERSON: But he was acting in self-defence, he's just told us.

MR DEHAL: Indeed, because he was convicted of murder and his sentence has been fulfilled, I think the amnesty will simply be to exonerate, remove the record because he's been convicted of murder.  As I understand it.  I also have some difficulty with that, since there is a conviction on record I think if the amnesty is granted it will clean up that record.  In fact he premised his defence during the trial in the court a quo on self-defence as well, but nonetheless was convicted of murder.

CHAIRPERSON: My problem here is that we don't sit as a Court of Appeal, we have to give a decision on the evidence led before us and the facts placed before us.

MR DEHAL: Correct.