DECISION
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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 Nzimeni Abednego Mazwi at Khuma Township, Stilfontein, on 31 October 1990.
(b) Attempted murder on Charles Mhlabiso at the same place and date.
1. Facts in brief - The applicant was a member of the Khutsong branches of the South African Youth Congress (SAYCO); African National Congress (ANC) and the African National Congress Youth League (ANCYL). At some stage he held the following positions on the branch levels: Secretary of SAYCO, Executive member of ANC, and secretary of ANCYL. The two victims were initially also members of SAYCO. However, with passage of time, there developed ideological differences between the applicant's group on the one hand, and that of the deceased on the other hand. they differed on strategies, particularly after the unbanning of political organisations in 1990. The deceased's group did not want SAYCO to simply convert into ANCYL. When the applicant's group called a meeting to consider an invitation from the police to discuss alleged conspiracies to burn policemen's houses, the deceased's group branded the applicant's group sell-outs and threatened to "necklace" them. The two groups were vying for the support of the residents. Each group was vying for the support of the residents. On one occasion the deceased's group would not allow the applicant's group to use the local stadium. When another meeting was about to be held, the deceased's group again disrupted it and in fact, took over the loud hailer which was to be used at the gathering. Although the National Union of Mineworkers (NUM) sent about 50 "marshals" to help the applicant's group, this did not help much, because the deceased told them the occasion had nothing to do with NUM. The activities of the victims and their group included harassing political activists within the applicant's group; for example the attacks on the house of Ms Mary-Agness Khunoane who was an active member of the African National Congress Women's League (ANCWL). Many activists belonging to the ANCYL, the ANCWL, the Civic Organisation, the Congress of the South African Trade Union, and the South African Communist Party took refuge at the house. The deceased's group later became known as Khutsong Youth Congress (Khuyoco). The perception later grew that Khuyoco had been infiltrated by the Security Police using it against other groupings. The extent to which the victims' group inhibited free political activity appears not only from the evidence of the applicant, but also from that of Ms mary-Agness Khunoane and ms Nomazotshwa Balani, both now members of the African National Congress North-West provincial legislature. Ms Balani worked for Lawyers for Human Rights at the time. These two witnesses also testified at length about the Security Police involvement.
On 31 October 1990 the applicant and a number of people from his group took a decision to go and look for the deceased and the complainant. We were told repeatedly that the intention was to apprehend them and hand them over to the police. The complainant was the first to be found, and he was severely assaulted. Thereafter the group went to the deceased's house where he was found hiding in a wardrobe. He was dragged out and killed by the mob next to a taxi rank.
According to the deceased's mother the deceased was a member of the ANC; in fact even at the time of his death. She says people who described themselves as members of the ANC in Klerksdorp, some of them in the organisation's uniform, attended the deceased's funeral and actually helped her. She spent an amount of R2 000-00 (two thousand rand) on the coffin.
2. Given the above facts, the conflict was clearly political and the two acts were associated with a political objective. However, there are other requirements which must also be met.
3. Regarding the murder of Nzimeni Abednego Mazwi:
3.1 Firstly, according to the evidence of the dec eased's mother, Ms Kate Mazwi, the applicant and one Thabo Mkhontwana (who is the applicant in application 1290/96) arrived at her house in search of the deceased, armed with home made knives. Upon arrival, they broke window panes, something they had also done the previous day. This contradicts the applicant's evidence that he did not go to the house. According to him, he was busy reporting to a certain Mrs Bothma about what happened to Charles Mhlabiso, when he heard some noise; when he looked, he noticed that the deceased was being assaulted. If we accept the version of the deceased's mother, it follows that the applicant did not make a full disclosure as required by Section 18(1) of the Act and his application would have to fail.
3.2 Secondly, the applicant says he regards himself guilty of the murder, as he did not use his position to intervene and save the deceased. Otherwise he did not, according to him, take part in the killing of the deceased. In terms of Section 20(2) of the Act, an applicant can only be considered for amnesty in respect of an offence "which was advised, planned, directed, commanded, ordered or committed" by such applicant. On his own evidence, the applicant did not do any of these; he had nothing to do with the murder. Nor does he admit any facts which would show that he had planned, advised, etc, the commission of the offence. Add to that the fact that there was no previous decision taken to either assault or kill the two victims. On this ground alone, he fails to get amnesty and it is not necessary to make a credibility finding with regard to the first point.
4. Regarding the attempt on the life of Charles Mhlambiso - the applicant says he did pull the complainant out of a furrow (after he had earlier been pushed into it by Patrick Mkhontwana, applicant in application 1290/96). Notwithstanding this, the applicant admits certain facts which in fact make him guilty: he was part of the group which set out to go and look for the complainant; he was present when the complainant was found; he took part in the interrogation of the complainant, and all along he was aware that the mob was in an aggressive mood. He therefore must have been aware that once the complainant was found by the mob, complainant was going to be severely assaulted and his life placed in danger. His participation in the hostile interrogation of the complainant amounted to reconciling himself with the consequences of such a confrontation. The provisions of Section 20(2) referred to above, have a very wide sweep; an applicant need not have personally taken direct part in the actual commission of the offence. There is no evidence suggesting that the applicant did not make a full disclosure in respect of this particular offence. He is therefore entitled to amnesty in respect of it.
To conclude:
(a) The applicant's application for amnesty in respect of the murder of Nzimeni Abednego Mazwi at Khuma on 31 October 1990
IS REFUSED: .
(B) The applicant's application for amnesty in respect of the attempt to kill Charles Mhlabiso at Khuma on 31 October 1990,
IS GRANTED: .
DATED ON THIS THE 23rd DAY OF JANUARY 1997 AT JOHANNESBURG.
(Signed)
MALL J
WILSON J
NGOEPE J
ADV C. DE JAGER SC
MS S. KHAMPEPE
