Amnesty Hearings — Pinetown — 2000-02-14

JUDGE DE JAGER: I've still got a problem as far as your statement appearing on page 4 of the record, is concerned, the second-last paragraph.  I want to read it to you and you should tell us what's wrong with this and how it came about that if it's wrong, how did it come about that there's some misunderstanding here
"Izak Msomi and myself ran away.  The seven men chased us."
Is that correct, everything so far?  Could you perhaps give him a copy of - it seems to me he'd like to have it before him.  I've read to you the first sentence -
"Izak Msomi and myself ran away."
No, it's in the middle of the page, on page 6, they typed version.  Do you see it?

GEBU FANYANA NGUBANE: Yes, I do.

JUDGE DE JAGER: Is that correct?

GEBU FANYANA NGUBANE: That is correct.
JUDGE DE JAGER
"The seven men chased us."

GEBU FANYANA NGUBANE: Yes.

JUDGE DE JAGER: Then
"I had a knife in my possession."

GEBU FANYANA NGUBANE: I dispute that, I did not have a knife.

JUDGE DE JAGER: Right.
"These men chased us and the deceased was the man who caught me."

GEBU FANYANA NGUBANE: Yes, we did flee and the deceased caught up with me after I had fallen.
JUDGE DE JAGER
"I then turned around and stabbed the deceased."

GEBU FANYANA NGUBANE: He stabbed me first and I stabbed him after my comrade came to my assistance.  He held him and then after dispossessing him of his knife, I stabbed him.  That was after we had struggled for the knife.

JUDGE DE JAGER: You see you never mentioned before today that you fell, not in one of the statements.  Why didn't you mention that in previous statements?

GEBU FANYANA NGUBANE: I think I did mention it, I do not know why it is not contained in the statement.

JUDGE DE JAGER: Thank you.

CHAIRPERSON: While we're on that ...

MR SIBANYONI: I'm referring you to the same paragraph which was read by my colleague, Mr de Jager, the paragraph starting with
"Izak Msomi and myself ran away."
... but in your evidence you spoke about three people, why in this one only you mention Izak Msomi and yourself?

GEBU FANYANA NGUBANE: I did mention three people, but the other one fled and he did not partake in attacking the deceased, he did not witness us struggling with the deceased and stabbing him.

CHAIRPERSON: But you don't mention him earlier when you say in the third paragraph
"Izak Msomi and myself were members of the ANC.  On the same day early in the morning about seven black males, including the deceased, approached the house that we were guarding."
Again you only mention yourself and Msomi.

GEBU FANYANA NGUBANE: When I related the story at the very beginning I did mention Kwazi Mbambo, that he present at that house.

MR SIBANYONI: But in your statement of the 15th November ...(indistinct) you didn't mention him, had you forgotten about him?

GEBU FANYANA NGUBANE: I did mention Kwazi to Mr Madlala, but he told me that the other persons were not that important because they had not made applications.

MR SIBANYONI: Thank you, no further questions, Mr Chairperson.

CHAIRPERSON: Questions?

MR PANDAY: Thank you, Mr Chairman.  Mr Chairman, before I proceed, if I may just stand to correct my learned friend insofar as Ms Alzina Luthuli's attendance.  If it may recorded, Mr Chairman, on the previous occasion the Evidence Leader was Ms Ramula Patel, and it was on that occasion that the victim's girlfriend Alzina Luthuli did appear before the Commission.  Unfortunately there were some problems with the matter proceeding on that particular day.  I myself had personally spoken to her and the matter was thereafter adjourned.  Just to have that correct.

CHAIRPERSON: So she has been at a hearing.

MR PANDAY: She has, she was present on the previous occasion, Mr Chairman.

MR DEHAL: Sorry, I don't want to be sounding as though I said anything incorrect, but lest anything turns on it, nothing seems to me to turn on it.  When the matter came to be adjourned on the last occasion, Alzina was not here and I waited for a while till she arrived, I was given a report that they had gone to the beach front to look for her.  This was at the time or date immediately preceding December last year, following upon the Y2K celebrations the beachfront was intensely busy, the report given to me was they would probably never find her that day.  But I understand subsequently they probably did meet with her, but at the time the matter came to adjourned she was not here.  But nothing really turns on that.

MR PANDAY: As Mr Chairman pleases.
	Mr Ngubane, is it correct to assume that you're familiar with the Mbukazi family?

GEBU FANYANA NGUBANE: Yes, I know them, we grew up together.

MR PANDAY: Do you know the eldest brother, Frederick Mbukazi?

GEBU FANYANA NGUBANE: I do not know him by that name but I know him by his Zulu name, Mguboi.

MR PANDAY: Now Mr Ngubane, the eldest brother, as you say you know him by his Zulu name, Mguboi, he is present at this hearing today and if need be he would testify that his brother was not part of any political organisation and neither was their family.  Would you be in a position to dispute that?

GEBU FANYANA NGUBANE: Yes, I would dispute it.

MR PANDAY: He would further testify that they were merely living in the area, that was the IFP area because that was their home at the time and as such they were not, neither the deceased nor the family was politically active.  Would you be able to dispute that?

GEBU FANYANA NGUBANE: Yes, I would dispute that because even he himself was one of the people who used to attack us, they would chase us.

MR PANDAY: Mr Ngubane, you maintain that on the day you attacked Mbukazi, there was nobody present, namely his girlfriend was not present, is that correct?

GEBU FANYANA NGUBANE: Yes, she was not present.

MR PANDAY: Do you also maintain that on that said day you acted in self-defence?

GEBU FANYANA NGUBANE: Yes, that's correct.

MR PANDAY: Now my question to you, Mr Ngubane, if she was not present and the Court only had your version to go by and that of Msomi's version, that you acted in self-defence, won't you agree with me that they should have actually have acquitted you as opposed to having convicted you?

GEBU FANYANA NGUBANE: As a lay person I am not familiar with the proceedings of the Court.  I am not an attorney, I do not know anything about the law.  I testified in Court and she did but I could not dictate to the Court that I should not be convicted, and she was there to make sure that we got convicted because we had killed her husband.  Also for the fact that she was an IFP follower and we were ANC persons, she had to support her husband and speak on his behalf.  But I maintain that she was not present there.  I know her as a person, but I did not see her on that day.

MR PANDAY: Mr Ngubane, you maintain that she was not present, let's accept that for a moment, do you agree that for her evidence to have been considered important and valuable she had to have given a very proper and explicit account of what took place on the day in question?

MR DEHAL: Sorry, Mr Chairperson, I didn't want to interject, but I don't know whether this question is fair to this applicant.  Firstly, he's already mentioned in his testimony that he's a lay person, he doesn't know how Court proceedings work, for him now to weigh the probabilities of what would be an astute person's version for the prospects of conviction, is not for him to say.

MR SIBANYONI: May I ask you this, Mr Panday - we don't have the Court record for the moment and my question is, if the applicant said in Court he dispossessed the deceased of his knife and the other friend grabbed the deceased while he was stabbing him, do you think he would have succeeded with self-defence?

MR PANDAY: On his version?

MR SIBANYONI: Yes.