DECISION
The applicant applies for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act, No 34 of 1995 (the Act), in respect of the following offences:
(a) The murder of one David Mayeko in Khutsong on 24 December 1990. the applicant was convicted in the Supreme Court, and sentenced to 12 years' imprisonment.
(b) Attempted murder on one Sgotlo, committed at the same place, date and time as the previous offence. The applicant was sentenced to six years' imprisonment.
(c) Attempted murder on one David Maseko, committed at the same place, date and time as the two preceding offences. The applicant was sentenced to 6 years' imprisonment.
The sentences in respect of the two convictions of attempted murder, were made to run concurrently with the sentence in respect of murder. The sentences were handed down on 10 September 1993.
The applicant was a member of the Self Defence Unit (SDU) as well as a member of the African National Congress Youth League (ANCYL) in Khutsong. The victims were members of a vigilante group. According to the applicant, the vigilante group sowed terror in Khutsong, working in collaboration with the South African Police. Political activists were harassed; for example the house of Johnson Thembe Ncube himself an applicant for amnesty in respect of the above offences (application number 121/96) was burnt down and he had to flee Khutsong at some stage.
The ANCYL members had to acquire firearms in a clandestine manner in order to repel the attacks. The tragedy of the situation as well as the intensity of the strife was sadly reflected in the evidence of the said Johnson Thembe Ncube: he said upon his return home, he had to report to his local political structures so that, in case he was killed by the vigilantes, his comrades would be able to know and bury him. The deceased and the other two victims were members of the vigilante group. Mr Ndzeku, presently the Mayor of Carletonville, testified that with passage of time, the vigilante group, which initially had a criminal element, changed character and concentrated their attacks on political activists, especially the youth. He himself was a political activist, though obviously not part of the youth.
He says that there was evidence of collusion between the vigilantes and the police. With the assistance of Lawyers for Human Rights, several sworn statements to this effect were taken from various witnesses. He himself had made several fruitless representations to the police about this collusion. He even mentioned the name of one Constable Mkhondo as one of the members of the Police Force who was involved.
The deceased was a prominent member of this vigilante group, and the other two victims were also very active. On 24 December 1990 the applicant and the said Johnson Thembe Ncube walked passed house 659, Khutsong. The deceased either lived there or frequented the place regularly. The deceased and the two complainants came out of the house and, we were told, the deceased threatened to shot the applicant and his friend. He gave chase to them and some distance from the said house, Ncube turned and shot him dead. The de ceased's mother did not know about the deceased's political activities; this was because the deceased did not stay with her. However, she was aware of the tension between the deceased and other activists; that is why she suggested to him, shortly before his death, that he leave Khutsong for the Transkei. After the deceased's death, she found his Pan Africanist Congress T-shirt. The aim of the activities of the group to which the three victims belonged was to, and did in fact, inhibit free political activity on the part of the ANCYL in Khutsong.
Section 20(2) of the Act not only requires that the act in respect of which amnesty is sought, be associated with a political objective, but also that such act should also have been "advised, planned, directed, commanded, ordered or committed ... by" an applicant who should in turn fall under one of the categories of people described in Section 20(2)(a) to (g). In his evidence before us, the applicant repeatedly stated that he had nothing to do with either the murder or the two attempts. A few extracts from the record will illustrate this point:
Question: "What did you do (to the deceased)?
Answer: I did nothing. I was just there at that day and time."
The applicant then went on to say that he was accused of murder merely because he was always in the company of his erstwhile co-accused - Record, page 9, lines 22 - 28.
Question: Now, on the day when the deceased died, what did you do yourself physically on him?
Answer: I did nothing to the dec eased, but I was present, and I did nothing to him" - Record, page 27, line 32 to page 28, line 4.
As regards the two charges of attempted murder, he testified as follows:
"The two attempted murder charges I know nothing about them. I was just told that we attempted to murder David (and Sqotlo) as well."
Question: "So you are not asking for amnesty for the two attempted murder charges?
Answer: Yes, I know nothing about them. I was just told about them. I know nothing about the two attempted murders" - Record page 11, lines 21 - 29.
When pressed to tell us what the evidence in court was with regard to the charges of attempted murder, he replied:
"They (the complainants) didn't explain to the Court as to how did they intend to kill them. They didn't tell the Court clearly as to how did we try to kill them ..." - Record, page 13, lines 15 - 18.
Question: "Surely they must have said something, even if you did not agree with them. Just tell us what they said (as to) how you tried to kill them?
Answer: I do not remember what happened to them clearly. I saw them for the first time in court when they said we tried to kill them ...
Question: In court what did he (one of the complainants) say you went about trying to kill him? Did he say you tried to chop him with a panga, did he say you shot him? What did he say?
Answer: He never explained to the Court as to how did we try to kill him. That's what puzzles me ..." - Record page 13, line 21 to page 14, line 1.
Question: "For a person who has passed standard 8, I would expect that if somebody came into court and said you wanted to kill him in this way and that way, I would expect you to can remember what that person said about you. That was very serious. You have gone to jail as a result of that, isn't it?
Answer: I do not know as to why does he say that I tried to kill him ...
Question: You had somebody defending you didn't you, at the trial?
Answer: Yes, I had a State Advocate.
Question: And are you asking us to believe that a witness just got into the witness box and said he tried to kill me and your Advocate didn't ask any questions as to how you tried to kill him? Are you asking us to believe that?
Answer: Yes, he did say in court that we tried to kill him, but he didn't explain to the Court as to how and why did we try to kill him" - Record, page 14, lines 10 - 28.
Two points emerge from the applicant's evidence. Firstly in the light of his denial of any participation in the commission of any offences in question, none of these offences can be said to have been "advised, planned, directed, commanded, ordered or committed" by him. He has totally distanced himself in every respect from these offences. What is more, apart from merely admitting that he was present when the offences were committed, he does not admit to any facts on the basis of which we could make a finding that he had advised, planned, etc, any of these offences.
Secondly, and particularly as regards the two charges of attempted murder, the above relevant extracts from the record (and they were merely examples) indicate that the applicant was not prepared to, and in fact did not, make "a full disclosure of all relevant facts" to us as required by Section 20(1)(c) of the Act. These two points distinguish the applicant's case from that of Johnson Thembe Ncube who, as already said above, has also applied for amnesty in respect of the same offences and who was together with this applicant when the offences were committed. Unlike this applicant, Mr Ncube admitted participation in the commission of the offences in question.
In the circumstances, the applicant Mpayipheli William Faltein, is
REFUSED AMNESTY: for
The murder of David Mayeko in Khutsong on 24 December 1990.
- The attempted murder of one Sgotlo in Khutsong on 24 December 1990.
- The attempted murder of one David Maseko in Khutsong on 24 December 1990.
SIGNED IN JOHANNESBURG ON THE 23rd DAY OF JANUARY 1997.
(Signed)
MALL, J.
WILSON, J.
NGOEPE, J.
ADV C. DE JAGER, SC.
MS S. KHAMPEPE
