Amnesty Hearings — Hammarsdale — 1998-08-11

BHEKISISA ALEX KHUMALO: That is correct.

MR HEWITT: Now is it not correct that at the end of that case - well, before you gave evidence, the Judge who heard that case, the Honourable Mr Justice Hugo warned you and explained to you that if you gave satisfactory evidence in that case you would be given an indemnity from prosecution, do you remember that?

BHEKISISA ALEX KHUMALO: Yes, I do.

MR HEWITT: And do you also remember that at the end of that case the Judge concerned found that you had not given satisfactory evidence and refused to give you an indemnity against prosecution for the qwaMakutha massacre?  Do you remember that?

BHEKISISA ALEX KHUMALO: Yes.

MR HEWITT: For the record Mr Chairman, this occurs at page 4535 of the Judgment in the relevant trial that I've referred to.
	Do you remember that?

BHEKISISA ALEX KHUMALO: Yes, I remember.

MR HEWITT: Now that trial that I'm referring to: THE STATE VS PETER MSANI AND OTHERS, that case concluded during October of 1996, do you agree with that?

BHEKISISA ALEX KHUMALO: Yes, I do.

MR HEWITT: Now when you gave evidence about the same events at the open stretch of ground where the target practice and the briefing took place before proceeding to kwaMakutha, you stated in your evidence did you not, that you agreed that in a written statement you'd made beforehand you had not mentioned that accused, that Mr MZ Khumalo had ever been at the donga, do you agree with that?

BHEKISISA ALEX KHUMALO: Yes, I do.

MR HEWITT: And at that trial you also agreed that you had never mentioned in a previous statement you'd made regarding the kwaMakutha massacre, that Mr MZ Khumalo was not present when a goat was slaughtered after the attack, do you remember that?

BHEKISISA ALEX KHUMALO: I did not say that.  I did not say that he was not present when the goat was slaughtered.

MR HEWITT: Anyway, let's just deal then with the incident at the open stretch of ground or donga.  Do you agree that at that trial you agreed that in a previous statement you had not mentioned that Mr Khumalo, Mr MZ Khumalo had ever been at the donga, do you agree with that?

BHEKISISA ALEX KHUMALO: Yes, I agree.

MR HEWITT: Do you agree that at the trial you confirmed that you didn't see Mr MZ Khumalo at the donga?

BHEKISISA ALEX KHUMALO: No, I did not agree.  What I conceded was that in my statement it is not written, it is not stated that Mashobane was present at that donga where target practice took place.  I did not concede that he was not there, what I did say was that I did not mention it in my previous statement.

MR HEWITT: I'm going to now read to you page 4445 of the Judgment in that case and I want your comments on that.
"Mr Hewitt took over the cross-examination and dealt with mainly with the events at the donga at Ulundi.  It was put to him that ..."
That is to you.  It was put to you that in your written statement you had not mentioned the presence of accused number seven, who was Mr MZ Khumalo, at the donga at all.
"nor had he mentioned any vehicle.  He agreed with this and also with the proposition that he had not mentioned the presence of accused number seven, MZ Khumalo, or Luthule at the goat slaughtering after the attack.  He still maintained at Ulundi he did not see accused number seven at all, that's MZ Khumalo"
Now in your evidence at that trial, at the trial you said you did not see Mr MZ Khumalo at the donga, do you remember that?

BHEKISISA ALEX KHUMALO: Yes, I remember.

MR STEWART: Mr Chairperson?

CHAIRPERSON: Yes, Mr Stewart?

MR STEWART: Sorry to intervene.  Perhaps it would be helpful to have Mr Khumalo's evidence on that point itself rather than the Judge's recollection of this evidence on the point, because that may resolve the difficulty.

MR HEWITT: The Commission has this, and I'm going to deal with his statement that he provided after the trial which also demonstrates it's going to be unnecessary, with respect.

CHAIRPERSON: Yes, I think you can continue with your questioning.

MR HEWITT: Do you agree that you stated at that trial that you did not see Mr MZ Khumalo at the donga?

BHEKISISA ALEX KHUMALO: I do not agree.

MR HEWITT: You don't agree?

BHEKISISA ALEX KHUMALO: At the trial I did not concede that Mashobane was not there.  I said he was there but I did not include it in my statement, that is what I said.

MR HEWITT: Okay, alright.  Turn to the affidavit which you furnished in these amnesty proceedings.  Now according to the affidavit which I've been furnished with, it appears that you made this affidavit in support of your present amnesty application during December 1996.  Have a look at page 374.

BHEKISISA ALEX KHUMALO: ...[no English translation]

CHAIRPERSON: Last page of your affidavit, the very last page where it is signed.
	Mr Dladla, do you have a copy there?  Perhaps you could just show him.

MR HEWITT: Do you see that?  In fact that affidavit was made during December 1996.

BHEKISISA ALEX KHUMALO: Yes, I do.

MR HEWITT: Alright.  So we know that you made this affidavit in support of this present amnesty application after you had given evidence in the Peter Msami trial and after the Judge in that trial refused to indemnify you because he found your evidence wasn't satisfactory, do you agree with that?

BHEKISISA ALEX KHUMALO: Yes, I do.

MR HEWITT: Well, can you explain to us why on page 351 and 352 of this affidavit where you deal with the events that occurred at this donga or this trench in this open place at Ulundi, you make no reference whatsoever to Mr MZ Khumalo being present?

BHEKISISA ALEX KHUMALO: This affidavit is derived from another made to the police.  After it was written I remembered that there was something that I should have added but I did not pursue it because the application had already been submitted to the Committee.  It was no longer easy to change it.  That is why it does not appear on this.

MR HEWITT: Well did you realise at the time that - why was it not easy to change it?  Why was it not easy to change it when it was wrong?

BHEKISISA ALEX KHUMALO: I thought that because I had already submitted the application it would not be possible to retrieve it and add this information.

MR HEWITT: Well all I want to put to you Mr Khumalo, is that today is the very first time that you have ever stated that you actually saw Mr MZ Khumalo at this donga in Ulundi before the kwaMakutha attack.

BHEKISISA ALEX KHUMALO: I disagree, I did mention it in court.  I even enquired why it was not in the statement.  I mentioned it in court.

CHAIRPERSON: I think that would be easily ascertainable Mr Hewitt, as suggested by Mr Stewart, by having a recourse the actual evidence, the transcript if it is still available.

MR HEWITT: Yes, we still certainly have it, yes.

CHAIRPERSON: Yes.  I think ...[inaudible]

MR HEWITT: That may be a bit time consuming to do it now, it may involve and adjournment but we can certainly, I don't know whether you Mr Chairman feel that the relevant passages and the evidence should be put to the witness or whether it can merely be referred to extensively in argument at a later stage.

CHAIRPERSON: Yes, I think if it is there, we can't make a finding now obviously.

MR HEWITT: No, obviously not.

CHAIRPERSON: Because the witness is denying that it's there and you're saying that it isn't there but if you can go to the relevant part of the evidence, perhaps in conjunction with Mr Stewart and then the panel can be informed by agreement.  I mean it's either there or it's not there.  If it's ambiguous then maybe we will have to put it on record ...[intervention]

MR HEWITT: The matter can be pursued further.  I think that's probably the best course Mr Chairman.

CHAIRPERSON: Yes.

MR HEWITT: I have no further questions other than the ones I've put.
NO FURTHER QUESTIONS BY MR HEWITT

CHAIRPERSON: Thank you Mr Hewitt.
	Mr Gladla, do you have any questions that you'd like to put to the witness.