Amnesty Hearings — East London — 1999-11-03

MR MALUSI: Maybe you didn't get my question clearly, my question is this, you claim not to have been actively involved, to have been there, but not actively having taken part.  I am asking now is there a specific act, something that you did that day, that you would like to be forgiven for, except for just being there?

LUSINDISO POYO: Guarding people in that process, and guarding the place when I was given this pumpgun, the one that I had.

MR MALUSI: Were you involved in any actions prior to this incident with Mzwandile?  We have had testimony of other incidents in Port St Johns, were you involved in any other incident besides this one with Mzwandile?

LUSINDISO POYO: No, that was the very first and the last incident.

MR MALUSI: The reason I am asking that, I am trying to ascertain why would you be so fearful of Mzwandile if you had not been previously involved with him?

LUSINDISO POYO: Sir, this problem started when the shoot-out started and from there he wanted us to continue with this, and on the way, he instructed the people to finish off these people and I refused to go there.   He told me that if I thought that I was going to escape that situation, I was going to die.  On that particular day, and I knew that he was capable of doing anything.   I couldn't do nothing about the situation.

MR MALUSI: Is it possible at all that the killing of the APLA members, was planned the moment you left Mqiza's home, that your group or Mzwandile and someone else deliberately took a decision when you left Mqiza's home that these people were to be killed?

LUSINDISO POYO: I do not think so.  I don't think there was time to do that, because I was present when we were moving from this particular place.  If there was that kind of a planning, it was done later on, but I have no idea about that.

MR MALUSI: A final question, Mr Chairperson.   If I got you correctly, you said that at the time you were fearful that these APLA members may retaliate, is that correct?

LUSINDISO POYO: Let me explain this.   Initially I did not realise that, I only got a fright after the shooting.  I couldn't say anything because they were already shot and I did not think that they would be able to fight again.   They had no firearms, we saw that when we were at Mqiza's home, and I did not see them fighting again after being shot, because they had no firearms.

MR MALUSI: Yes, the question I wanted to ask after that actually was, if you are afraid that after being shot, that they were going to retaliate, was your group not afraid that even if they had not been shot, they would still have retaliated for the abduction and the questioning?

LUSINDISO POYO: If they were going to retaliate, they could have done so, but I cannot say what was going to happen.   I couldn't say no to anything, maybe they were later going to retaliate, but I do not know for sure.   I cannot say what would have happened if they were released.

MR MALUSI: Thank you for your time, sir.  No further questions Mr Chairperson.
NO FURTHER QUESTIONS BY MR MALUSI

CHAIRPERSON: Mr Mgxaji, I don't suppose you have any questions?

MR MGXAJI: No questions.
NO CROSS-EXAMINATION BY MR MGXAJI

CHAIRPERSON: Mr Mapoma?

MR MAPOMA: No questions, sir.
NO CROSS-EXAMINATION BY MR MAPOMA

CHAIRPERSON: Mr Mgidlana, have you got any re-examination?

MR MGIDLANA: There is none, Judge.
NO RE-EXAMINATION BY MR MGIDLANA

CHAIRPERSON: Yes, thank you, you are excused.
WITNESS EXCUSED

CHAIRPERSON: Mr Mgidlana?

MR MGIDLANA: Chairperson, that is all in respect of the applicants.

CHAIRPERSON: Mr Malusi, have you got any witnesses?

MR MALUSI: Yes, Your Worship, there is Mr Gasmeni who survived this incident, but Your Worship, I have consulted with him, his testimony really would relate to what is on page 101 to 109, that is his two statements to the police in the Bundle.

CHAIRPERSON: I am in your hands on that score.   Page 101 you say?

MR MALUSI: That is correct, yes.

CHAIRPERSON: I don't know what you want to do.  I have not read those statements.

MR MALUSI: Oh, I had assumed incorrectly, that the Committee had read the statements.

CHAIRPERSON: No, I make it a point of not reading it before I hear testimony.  I don't want to cloud my mind.

MR MALUSI: If perhaps I can be so presumptuous as to ask if any member of the Committee has a particular point that they would like to raise with Mr Gasmeni?

CHAIRPERSON: None.

MR MALUSI: In that event then Mr Chairperson, I do not intend to call him because really, truly speaking his evidence is as contained on pages 101 to 109.

CHAIRPERSON: It is not going to take the matter much further?

MR MALUSI: Much further, Your Worship.

CHAIRPERSON: Fair enough.  I appreciate the approach.   Any other witnesses or is that your lot?

MR MALUSI: That was the only witness I intended calling, the only person.

CHAIRPERSON: Thank you.  Mr Mgxaji, do you have any witnesses?

MR MGXAJI: Certainly not beyond what I submitted in respect of when I was dealing with the Mr Mapipa case.

CHAIRPERSON: Mr?  I didn't get the name.

MR MGXAJI: No, My Lord.

CHAIRPERSON: You haven't got.  Mr Mapoma?

MR MAPOMA: I have no further evidence, Chairperson.

CHAIRPERSON: That being the case,  there will be no more evidence, Mr Mgidlana, have you got any submissions to make?  We certainly would like to hear which applicant applies for what.

MR MGIDLANA: Judge, I will begin by indicating that I will not deal with Hermans as well as Pato's portions of their applications that were withdrawn.     If we may begin with the shoot-out at the high school on this particular day, the Voter Education shoot-out.

CHAIRPERSON: Who is involved there.

MR MGIDLANA: Wherein Guleni was involved, Matshaya, Mdlulwa as well as Pato.

CHAIRPERSON: Okay, what is Guleni applying for?

MR MGIDLANA: Judge, Guleni is applying for his involvement in the shoot-out.

CHAIRPERSON: No, I cannot understand that.  Let me make it easier.

MR MGIDLANA: As it pleases, Judge.

CHAIRPERSON: On the evidence given by them, are they guilty of anything?

MR MGIDLANA: It will seem to me Judge, my submission would be that they could be guilty if they were to be charged, with public violence even though of course they are saying that they were trying to defend the people where they ...

CHAIRPERSON: No, I am not talking about what the prosecution authority of this country may decide.  I've got to look at the facts.  They were defending people.

MR MGIDLANA: Yes.

CHAIRPERSON: It is not a crime to defend people.

MR MGIDLANA: Yes.

CHAIRPERSON: On that basis, are they guilty of anything?

MR MGIDLANA: Given that Judge they are not saying that they know of any person who was injured or killed during that incident...

CHAIRPERSON: Even that, I mean can they be said to have unlawfully taken the life of another or attempted to take the life of another?

MR MGIDLANA: My submission will be that it might be said that depending on what happens, whether or not their act of self-defence did not exceed the bounds, but ...

CHAIRPERSON: But that is not their versions.

MR MGIDLANA: Yes, but it is not their versions, yes.  In fact the only thing that comes to my mind, Judge, is that it could just be said there was fighting between these two groups.

CHAIRPERSON: They - aren't they guilty of unlawful possession of firearms and ammunition, on that incident?

MR MGIDLANA: That is another aspect Judge ...

CHAIRPERSON: That is about all that can be said.

MR MGIDLANA: That is all that can be said, yes.

CHAIRPERSON: Get to the next matter.

MR MGIDLANA: The next matter would be that of the killing of, in fact that applies to all these four that I mentioned, in this first matter, Judge.  Then the second one relates to the killing of the late Mr Mapipa, of which the applicant is Guleni.

CHAIRPERSON: Yes.  He would be guilty of murder?

MR MGIDLANA: He is guilty of murder, Judge.