Amnesty Hearings — Johannesburg — 1999-02-17

MR LAX: It is not quite Chairperson, because Mr Leopeng's question, that is what I tried to explain to him, he saw somebody holding a firearm.  He said he saw someone pointing a firearm at the deceased, there is a big difference, and that is why he is confused.

MR LEOPENG: Thank you for the clarification.  Did you see someone pointing a firearm towards the deceased?

MBASIMA RICHARD NKUNA: When you say someone, I don't know whether you are referring to the one that I mentioned before, or someone else?

CHAIRPERSON: Yes, did you see any person pointing a firearm at the deceased, yes or no?  Did you or did you not see any person?
	I think the identity of the person will soon come up, because Mr Leopeng is trying to take you stage by stage of what you have already said.

MBASIMA RICHARD NKUNA: The person that I saw pointing a firearm at the deceased, was the one that I mentioned before this Committee.

CHAIRPERSON: His response is yes Mr Leopeng.  Mr Nkuna, try and respond to questions which are being put to you the best way you can.
	Did you see someone pointing a firearm at the deceased, your answer should be yes, then you may elaborate and say that person is so and so.

MBASIMA RICHARD NKUNA: I appreciate to answer a question the way I understand it.  The person that I saw pointing a firearm at Mathonsi, was the first person, it was only one person, I did not see any other person pointing a firearm at Mathonsi.

MR LEOPENG: And that person, in your evidence you have said it is the applicant before this Committee, is that correct?

MBASIMA RICHARD NKUNA: Yes, he is the one before the Committee today.

MR LEOPENG: Is it correct further that you testified during the trial in the Johannesburg High Court?

MBASIMA RICHARD NKUNA: That is correct.

MR LEOPENG: I now turn to page 3 of the judgement, on my paginated bundle, is marked page 10, but I am not sure if it corresponds with the panel's papers.

CHAIRPERSON: Ours is page 24.  I think you can just continue telling us the numbers of the judgement as it appears on the judgement, without our paginated numbers.

MR LEOPENG: Thank you Madam Chair.  During your testimony in trial, you said you could not identify the applicant before this Court during the identification parade, is that correct?

MBASIMA RICHARD NKUNA: If I were not able to point him out at the identification parade, it will be a mistake on my part, because I could positively identify him.  It is possible that I wasn't able to point him out and the reason might be that at the time when I saw him, he was very young and when I saw him for the second time, he was a grown up person.

CHAIRPERSON: Mr Nkuna, I have not been able to understand what you are saying.  Will you please for my sake, come again.  Just repeat what you have just said, the reason why you were unable to identify him before, but wee able to identify him later, what reasons did you advance?

MR LEOPENG: Madam Chair, through your permission, may I maybe rephrase the question in a very simple manner?

CHAIRPERSON: If it will assist Mr Nkuna and this Committee, you may do so.

MR LEOPENG: Mr Nkuna, I said during your testimony in the trial, you indicated and it was common cause before Court, that you could not identify the applicant before this Court who was the accused then, during the identification parade and you identified him only in court.  Is that correct?

ADV BOSMAN: Excuse me for coming in Mr Nkuna, Mr Leopeng, I am now thoroughly confused.  I don't know, where are you referring to when you say that he testified that he could not point him out?

MR LEOPENG: On the judgement, it is page 4 of the judgement.

CHAIRPERSON: And precisely ...

ADV BOSMAN: He says there in the judgement, the Judge, in his evidence, the Inspector said that he had attended an identification parade at which he pointed out the accused.  This is what confuses me now.

CHAIRPERSON: I think it is a little confusing, you've got to read that judgement a little further down, then you will see from line 17 it is quite clear that the Inspector had not been able to identify the applicant, who was an accused then, at his criminal trial, he was unable to identify him at an identification parade immediately after the incident, but was able to identify him in court.  He had not been able to identify him at an identification parade.
	That is what you are putting to him Mr Leopeng?

MR LEOPENG: Yes.

ADV BOSMAN: Thank you Chairperson, that ...

CHAIRPERSON: You are welcome, Ms Bosman.  Mr Nkuna, do you understand the question which is being posed by Mr Leopeng?  His question is that you were unable to identify the applicant at an identification parade, and you were only able to so identify him during the criminal trial.

MBASIMA RICHARD NKUNA: I also in explanation before the Court explained that the reason why I was not able to identify him in the identity parade, is because it was a long time ago after the incident.

CHAIRPERSON: His problem is that when the identification parade took place, it was much closer to when the incident had occurred, and when you were able to identify him in court, it was much later.  Can you give a reason why you were unable to identify him at an identification parade which was held much earlier but were only able to identify him during the criminal trial, which happened much later?

MBASIMA RICHARD NKUNA: I said if I failed to point him out at the identification parade, my understanding is when I saw him, he was still young, and when the ID parade was conducted, he was a grown up person, so it is a mistake on my part, not having been able to identify him.

CHAIRPERSON: I think the question which is being posed to you is why were you still able to identify him when he was even much older, during his criminal trial.  That is the question if the reason why you were unable to identify him during the identification parade, was because he had become much older, surely it must have been even more difficult to identify him during his criminal trial, because he had become even more older?

MBASIMA RICHARD NKUNA: I said at the ID parade, I expected to see someone the same age at the time when I saw him during the incident, and my explanation was that he was grown up at the time.

CHAIRPERSON: Mr Leopeng, I doubt if you can take this matter any further.

MR LEOPENG: Yes, I am leaving that.

CHAIRPERSON: You may proceed to the next item, sorry to the next aspect of his evidence.

MR LEOPENG: Mr Nkuna, when you said in your evidence in chief before this Committee that when the deceased was trying to run away, someone was running after him, trying to disarm him.  What actually did he do which convinced you that he was trying to disarm him?

MBASIMA RICHARD NKUNA: I explained that he was running in a way, like trying to catch the firearm and then comes back, withdraw back and go fast.  I said I was in a position to see that he was trying to take something.  I was looking at him and I came to the conclusion that he was trying to take the firearm.

MR LEOPENG: But your evidence after you had been questioned by Madam Chair, you said you just suspected because he was running after him.  Is that not what you said?

MR LAX: With respect Mr Leopeng, he did actually say that the man, looked, thought he was trying to take something from him.  That was his evidence.

MR LEOPENG: With respect, after Madam Chair took the matter further, he said I only suspected because if someone is running after him, I thought he was going to disarm him, there was no stretching of the hand, nothing.