Amnesty Hearings — Durban — 1999-06-23

CHAIRPERSON: Ms Thabethe, what is the position now?  Which application do we proceed to hear?

MS THABETHE: Madame Chair, we're going to proceed to hear the application of Themba Mshini Ngcobo and Phazimani Ncishane.

CHAIRPERSON: Is the legal representative of Mr Ncishane here?

MS THABETHE: Yes Madame Chair, she is.
	Sorry Madame Chair, can I say something?

CHAIRPERSON: Yes.

MS THABETHE: With regard to the previous matter, it was indicated to me that the victim's next-of-kin for Mr Cele are here so I would like you to recommend them for R & R if you do grant or refuse amnesty.

CHAIRPERSON: As you are aware, Ms Thabethe, whenever we make a decision we are required in terms of the Act, the Promotion of National Unity Act 34 of 1995 as amended to give an opinion with regard to whether we think they should be victims in terms of Section 26 and if we are of that opinion, we are required in terms of the Act to make a recommendation that they be referred to the Committee on reparation and rehabilitation in terms of Section 26 for determination as victims and that is what we'll do when we do this decision.

MS THABETHE: Thank you Madame Chair.

CHAIRPERSON: I know that Ms Loonat is still comfortably seated downstairs.  We would like you to come up.  Will you be comfortable sitting next to Ms Thabethe or would you like to sit next to your colleague, Mr Molohlanye?  Yes, will we make an arrangement for one extra seat to be brought next to Ms Thabethe?  Unfortunately we only have two tables so maybe you should share Ms Thabethe's table rather than Mr Molohlanye because he will also be sitting with his client.
	I know that we are not logistically ready for this matter, we need to have an extra set of microphones for Ms Loonat and her client.  I will therefore adjourn these proceedings for two minutes just to allow the technicians to arrange.  Will two minutes be okay, Peter?   Peter, will two minutes be sufficient?  Thank you.
COMMITTEE ADJOURNS
ON RESUMPTION

CHAIRPERSON: ...(inaudible) to hear the application of Mr Themba Mshini Ngcobo, application number 7803/97 and Phazimani Joe Ncishane, application number 5638/97.  Will the legal representatives appearing on behalf of the two applicants kindly state their names for the record?

MS LOONAT: Madame Chair, my name is Serina Loonat and I'm appearing on behalf of Mr Phazimani Joe Ncishane.  Thank you.

MR MOLOHLANYE: Madame Chair, I am Konki Molohlanye and I'm appearing on behalf of Themba Mshini Ngcobo.  Thank you.

CHAIRPERSON: Thank you.  For the evidence leader, Ms Thabethe.  Ms Loonat?

MS LOONAT: Madame Chair, I don't think mine is functioning can I just swop with somebody please?  There's no sound at all, there's just a hissing sound.  I beg your pardon, thank you.

CHAIRPERSON: Ms Loonat, are you in a position to commence?

MS LOONAT: Yes Madame Chair, thank you.

CHAIRPERSON: You may do so.

MS LOONAT: Madame Chair could I call my client to sit beside me please?  Would that be possible?

CHAIRPERSON: That is appropriate.  Mr Ncishane you can sit next to your attorney.
	Mr Ngcobo, you can also be seated next to your attorney.

PHAZIMANI JOE NCISHANE: (sworn states)

MS LOONAT: Madame Chair, may I commence?

CHAIRPERSON: You may proceed Ms Loonat.

MS LOONAT: My learned colleagues, this morning I am appearing on behalf of Mr Ncishane who is applying for amnesty for the murder of one Samson Mpumelelo Phewa and Amos Cele on the 20th July 1991.  At this point I would also like to apply for amnesty for robbery which was committed at the same time as part of the Act.  Thank you.

CHAIRPERSON: And this robbery arises out of the same incident?

MS LOONAT: Yes Madame Chair, it arose at the same time.

CHAIRPERSON: Your application is granted.

MS LOONAT: Thank you Madame Chair.  Further, could I just at this point bring to the attention of the Committee Members that there are some inconsistencies in this and the reason for that is my client is totally illiterate and he had to rely on his prisoner friends to write for him so it's not from want of not telling the truth but it's just come across the wrong way.  One particular one is on page 26, for example, of the bundle.  Number 11(a) where he says
"We were not ordered by anyone in this act of attacking each other."
That is incorrect, there was actually an instruction.  We shall come to that in the course of the evidence.  Thank you.
	Mr Ncishane, please tell the Honourable Members of this Committee how old you are now?

PHAZIMANI JOE NCISHANE: I'm 40 years.

MS LOONAT: Are you married?

PHAZIMANI JOE NCISHANE: Yes I'm married.

MR MALAN: Sorry, if 40 years is correct then the I.D. number is wrong.

MS LOONAT: He is 48 Mr Malan.
	Are you married?

PHAZIMANI JOE NCISHANE: Yes I am.

MS LOONAT: Do you have any children?

PHAZIMANI JOE NCISHANE: Yes.

MS LOONAT: Please tell us what happened to your wife and children?

PHAZIMANI JOE NCISHANE: When I was arrested everything was destroyed.  My wife informed me that she ...(intervention)

MS LOONAT: Sorry, I can't hear anything.

CHAIRPERSON: Peter, it would appear that Ms Loonat is experiencing some technical problems with her headphones.

MS LOONAT: Can the interpreter say something?

INTERPRETER: Which language, English?

MS LOONAT: English, yes.

INTERPRETER: Can you hear me?

CHAIRPERSON: Yes we can hear her quite well, the translators can be heard.

MS LOONAT: I apologise Madame Chair.
	Mr Ncishane, please tell me what happened to your wife and children?

INTERPRETER: The speaker's mike is not on.

PHAZIMANI JOE NCISHANE: My wife informed me that she had started living with another man since I've been arrested.

MS LOONAT: So in fact they have deserted you?

PHAZIMANI JOE NCISHANE: Yes.

MS LOONAT: Do you have a fixed address Mr Ncishane?

PHAZIMANI JOE NCISHANE: No I resided in an informal settlement.

MS LOONAT: Which party do you associate yourself with?

PHAZIMANI JOE NCISHANE: The ANC.

MS LOONAT: Do you have proof of membership?

PHAZIMANI JOE NCISHANE: I did have a membership card but my house was burnt down and so was the card.

MS LOONAT: What was your status in the hierarchy of the ANC party?

PHAZIMANI JOE NCISHANE: I was a marshall.

MS LOONAT: What is a marshall, Mr Ncishane?

PHAZIMANI JOE NCISHANE: A marshall would be responsible for checking the area and finding out what the situation looks like in the area.  Thereafter we go back and report back to the other comrades.

MS LOONAT: How often did you meet with your ANC members in order to do this marshalling?

PHAZIMANI JOE NCISHANE: We met many times.

MS LOONAT: Only a weekly basis, daily basis?

ADV DE JAGER: I don't think it's disputed that he is a member and I don't know whether it's even disputed that he acted as a member of the ANC in this ongoing battle so as far as I could see we've got this affidavit which you've presented, perhaps you should hand it in as an Exhibit now and then continue to extract facts of the incident?

MS LOONAT: Thank you Mr de Jager.  Is everybody in receipt of the supplementary affidavit which I would refer to?

MR MALAN: It has been given to us, shall we refer to it as Exhibit A?

MS LOONAT: Thank you.
	On the 20th July 1991 you were together with other ANC members.  You participated in a vicious crime that resulted in the death of two people.  Do you know these two people?

PHAZIMANI JOE NCISHANE: I knew of them.

MS LOONAT: Who instructed you to commit this killing?

PHAZIMANI JOE NCISHANE: It was our commander, Mr Gumede.

MS LOONAT: He is also the co-accused?  Please tell the Committee Members who these people are, the two men that you killed, what do you know about them?

PHAZIMANI JOE NCISHANE: It Mavundla and somebody whose name I've forgotten.

MS LOONAT: And did they belong to any political party or were they personal friends of yours or acquaintances?

PHAZIMANI JOE NCISHANE: They were IFP members.