Amnesty Hearings — Johannesburg — 1999-02-17

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?

MBASIMA RICHARD 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?

MBASIMA RICHARD 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?

MBASIMA RICHARD 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?

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

CHAIRPERSON: Did you personally witness that?

MBASIMA RICHARD 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?

MBASIMA RICHARD 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?

MBASIMA RICHARD 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?

MBASIMA RICHARD 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?

MBASIMA RICHARD 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.

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?

MBASIMA RICHARD 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?

MBASIMA RICHARD 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?

MBASIMA RICHARD 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.

MBASIMA RICHARD NKUNA: Thank you.

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

MBASIMA RICHARD 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?

MBASIMA RICHARD 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?

MBASIMA RICHARD 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.