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 Nzimeni Abednego Mazwi at Khuma Township, Stilfontein, on 31 October 1990;
(b) Attempted murder on Charles Mhlabiso at the same place and date.
1. The facts in brief - the applicant was a member of the South African Youth Congress (SAYCO) and also a member of the African National Congress (ANC). In 1990 he was Publicity and Media Officer of SAYCO, apparently the Khuma branch. When SAYCO converted into the African National Youth League (ANCYL), he retained his position, eventually becoming the Branch Chairperson. 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 as sell-outs and threatened to "necklace" them. The two groups were vying for the support of the residents. On one occasion the dec eased'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 "marshalls" 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 Womens' 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 Province 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 the 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 conflicts 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 Ms Kate Mazwi, the deceased's mother, the applicant and Gcinisizwe Dlanjwa (applicant in application no. 1289/96) 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. She therefore contradicts the applicant's version that he only inquired after the deceased, and left for his own house when told that the deceased had fled. 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 states categorically that he had nothing to do with the murder. Asked why he thinks he was convicted, he says it was simply because he was a leader. Asked about the evidence against him in the trial, he says the deceased's mother testified that he, the applicant, upon arrival at the scene, took out a knife and finished off the dec eased. Of course, if we are to consider this latter piece of evidence, we must do so against the mother's evidence before us that she did not go to the scene at all; that she fled to one of her neighbours; that she says she in fact refused even later when asked by the police to go to the scene; and that she said she was told by one of her neighbours that the deceased had been killed. Nevertheless, the fact of the matter is that the applicant cannot be considered for amnesty in respect of an offence from which he totally distances himself. 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 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. 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.
Regarding the attempt on the life of Charles Mhlambiso
The applicant was part of the mob which set out to go and look for the complainant. Although the applicant says he pushed the complainant into a furrow in order to save him from the mob, he admitted facts which connect him to the offence in terms of the provisions of Section 29(2) referred to above: he was aware that the mob was in an angry mood; he was in fact the first person to get to complainant and he grabbed him; he personally interrogated the complainant about things which were bound to lead to an attack on the complainant by the angry mob. His application should, in our view, succeed in respect of this offence.
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
