Amnesty Hearings — Umtata — 1998-06-17

GCINISIKO LAMONT DANDALA: I got this youngish fellow who went to Ndondo at the bathroom and came back with the message saying that Ndondo will be coming and I then left the house first.

MR DUKADA: He joined you in the kombi and you drove away?

GCINISIKO LAMONT DANDALA: Correct.

MR DUKADA: You mean as somebody was accused of being a terrorist, you never even bothered to conduct a search in his premises?

GCINISIKO LAMONT DANDALA: No we did not conduct any search.

MR DUKADA: You did not even look for any weapons at his home?

GCINISIKO LAMONT DANDALA: No we did not.

MR DUKADA: In this case no warrant had been issued for the arrest of Ndondo?  Do you agree with me?

GCINISIKO LAMONT DANDALA: No, there was no warrant.

MR DUKADA: And surely that was irregular, you know that?  As an experienced policeman you know that it was irregular to arrest somebody without a warrant in those circumstances?

GCINISIKO LAMONT DANDALA: You can arrest a person without a warrant.

MR DUKADA: But now the point I'm saying is that at the time he boarded the kombi, he had not been told at all about the accusation of being a terrorist?

GCINISIKO LAMONT DANDALA: No he was not told.

MR DUKADA: Do you agree with me Mr Dandala in retrospect, there was no need to kill Batandwa on the day in question?  If you wanted to destroy him politically, it was simple to arrest and take him to Court.  Do you agree with me?

GCINISIKO LAMONT DANDALA: Yes I agree.

MR DUKADA: It would have been very easy even if he was running away to catch him.  To apprehend him and take him to the police cells.

GCINISIKO LAMONT DANDALA: It was easy but because he had already contested the arrest by struggling against Shabalala and winning they started shooting.

MR DUKADA: Now but do you agree with me, right where you are seated now, that the shooting itself was not necessary?

GCINISIKO LAMONT DANDALA: Yes.

MR DUKADA: Do you agree with me?

GCINISIKO LAMONT DANDALA: Yes.

MR DUKADA: If you wanted to apprehend him again it was very easy in the circumstances to do so?

GCINISIKO LAMONT DANDALA: It was easy because in the beginning the kombi was not supposed to have left without going first to the charge office.

MR DUKADA: Then it is not true that Batandwa was shot because he was escaping from lawful custody?

GCINISIKO LAMONT DANDALA: That is true because he was already under arrest at the time.

MR DUKADA: Yes but I'm sorry to repeat the question but what I'm saying to you, to re-arrest him it was an easy task?

GCINISIKO LAMONT DANDALA: To re-arrest him?

MR DUKADA: That is correct.

CHAIRPERSON: On the evidence of this witness, the deceased somehow got out of the kombi through a window and then was running away.  So on his evidence, to give chase to arrest him ... [inaudible].

MR DUKADA: Thank you Mr Chairman.  Mr Dandala, if you wanted to re-arrest Batandwa Ndondo unharmed you would have done that easily?

GCINISIKO LAMONT DANDALA: Correct.

MR DUKADA: Simple thing to fire a shot in the sky to warn him about the danger of escaping from lawful custody?

GCINISIKO LAMONT DANDALA: No that was not done.  As far as I am concerned they fired straight to him.

MR DUKADA: Now what I'm saying to you sir is that if there was a real intention to re-arrest him, one of the ways of stopping him from fleeing was to fire a warning shot?

GCINISIKO LAMONT DANDALA: Yes.

MR DUKADA: And the warning shot was never fired?

GCINISIKO LAMONT DANDALA: No.

MR DUKADA: And according to your evidence the firing started when he was about eight paces away from Shabalala?

GCINISIKO LAMONT DANDALA: You mean Batandwa?

MR DUKADA: That is correct.

GCINISIKO LAMONT DANDALA: He was not far as such, because it was from Shabalala, after the struggle he ran away.  He was not far.

MR DUKADA: Would you agree with me that he was about at least eight paces away when the firing, from Shabalala?

GCINISIKO LAMONT DANDALA: No, not eight paces.

MR DUKADA: Was it less or more?

GCINISIKO LAMONT DANDALA: It was less.

MR DUKADA: It was less than eight paces?

GCINISIKO LAMONT DANDALA: Less than eight paces.

MR DUKADA: Then can you estimate the distance?

GCINISIKO LAMONT DANDALA: In my estimation it's less than eight paces.

MR DUKADA: Can you estimate the distance?  What distance would you estimate?

GCINISIKO LAMONT DANDALA: It would be as near as the advocate sitting there.

MR DUKADA: I think the estimation, it's about five paces, Mr Chairman and Honourable members if everybody agrees with me?

CHAIRPERSON: About three paces.

MR DUKADA: Thank you Mr Chairman.  We all, Mr Dandala, do you agree with me, the intention was to kill Mr Ndondo, not to arrest him?

GCINISIKO LAMONT DANDALA: The intention as far as I am concerned was not to kill him.  As far as I am concerned it was to arrest him.

MR DUKADA: But why would Shabalala empty a magazine, re-load a loaded magazine and continue firing if the intention was not to kill him.

GCINISIKO LAMONT DANDALA: I think that question can be properly answered by Shabalala.  I never got to know why.

MR DUKADA: And then why did you fire?

GCINISIKO LAMONT DANDALA: Sorry?

MR DUKADA: Why did you fire?

GCINISIKO LAMONT DANDALA: When I fired it was because I had remembered what they had said in the kombi whilst we were going to Xala.

MR DUKADA: You see we have a post-mortem report which reveals that Mr Ndondo sustained about three injuries from the front.  Mr Chairman there is another document which I asked one of the members of the Commission to assist me by providing a copy and I thought - Mr Chairperson there is a document which is being circulated, I'm going to refer the witness to that document.
	Mr Dandala, can you turn to Page 3 of the document?

CHAIRPERSON: This document that you are referring to now, what is it?

MR DUKADA: Mr Chairman it's a post-mortem examination which was recorded by the doctor who conducted the post-mortem.  There are two documents but I'm referring now to the second one, not the earlier document.

CHAIRPERSON: ...[inaudible] by the same doctor?  Yes, very well.  Shall be make it Exhibit "B".

MR DUKADA: Thank you Mr Chairman.  Mr Dandala can you turn to Page 3 of the document which has just been given to you.  Just look at, there are three, I think there are four figures there, just look at the first one.  You got the first figure, at the foot, just below, there's "e" representing entry wound, "ex" that is exit wound.
	There if you look there are three entry wounds at the abdomen, going down to the left hip.  Can you see that?

GCINISIKO LAMONT DANDALA: Yes.

MR DUKADA: There's no doubt this gives the impression that at the time the deceased was shot, when he sustained these three wounds, he was facing the assailant, do you agree with me?

GCINISIKO LAMONT DANDALA: If they entered inside, it is clear that he was facing the assailant.

MR DUKADA: Can you explain to us how he suffered these three wounds which were inflicted when he was facing the assailant?

GCINISIKO LAMONT DANDALA: I would not know because they were chasing him from the kombi until they went after or beyond the house when they re-appeared with him still running in front.

MR DUKADA: And surely you would agree with me that anybody who fired shots at the deceased when the deceased was facing the assailant wanted to kill the deceased?

GCINISIKO LAMONT DANDALA: ... [no English translation]

MR DUKADA: You see, when he was hit facing the assailant the intention was to kill him.  Do you agree with me?

GCINISIKO LAMONT DANDALA: When he is facing him, yes, that person is intending to kill him.

MR DUKADA: And according to the post-mortem report he sustained, there were eight bullets which penetrated the body.  Have you looked at the post-mortem?

CHAIRPERSON: A or B?

GCINISIKO LAMONT DANDALA: Yes I see it now.