DECISION
The applicant and Samuel Jamile were accused 1 and 2 respectively in a trial in which they were charged on five counts of murder, seven counts of attempted murder and three counts of enticement to murder. At the conclusion of their trial, they were found guilty on count 5 which related to the murder of Zazi Khuzwayo on the 9th of May 1987, and on count 12 of the murder of Nicholas Mkhize on the 15th of July 1988. Jamile was sentenced to life imprisonment in respect of these convictions. Applicant was sentenced to twenty two (22) years' imprisonment. On the 17th of May 1993, Jamile was granted indemnity and released from prison. Applicant's application for indemnity was refused.
The applicant now applies for amnesty in terms of Section 18 of Act 34 of 1995, in respect of the murder of Zazi Khuzwayo and Nicholas Mkhize. He is also applying for amnesty for the attempted murder of Bhikilida Msomi, Delani Sikhakhane and Johannes Luthuli, an offence for which he was not indicted.
At the time of the commission of these offences, applicant was 16 years old. He was unemployed and resided with his father who was a tenant of Jamile, in Clermont.
We proceed to deal briefly with the background and circumstances of these two incidents.
The murder of Zazi Khuzwayo
According to the evidence of the applicant, on the instructions of Jamile, he accompanied seven individuals, among whom were Daluxolo, Sosha, Vela and Vusi and pointed out to them Khuzwayo's shopping complex and his home. They had gone there in a car driven by Daluxolo. He later learnt from Vela that they had planned to kill Khuzwayo.
On the 9th of May 1987, on the instructions of Jamile, applicant accompanied Bhekwuse, Vela and two others in a car driven by Jamile's son. They drove in the direction of Khuzwayo's place and parked the car net to the Clenarville Post Office. On Vela's instructions applicant went into the shop to see if Khuzwayo was there. He looked around and left the shop and signalled to his companions that Khuzwayo was in the shop.
After that the applicant left his companions and walked to Jamile's place. Later, while he was still at Jamile's place, Vela told him that he had in fact shot and killed Khuzwayo. This was reported to Jamile. That evening, the shooting of Khuzwayo was celebrated at Jamile's house with a braai and drinks. Among those who were present at the braai were some members of the Rio Unit of the South African Police. Applicant said that his evidence at the trial was not the truth. He had lied because Jamile had promised to take care of everything. Zazi Khuzwayo was a prominent businessman. He was a member of the clermont Advisory Board which opposed the efforts of Inkatha to incorporate Clermont into the kwaZulu Government.
The killing of Nicholas Mkhize
At the trial, a witness Elyah Buthelezi said that he was present when Mkhize was shot. He saw and recognised applicant as the person whom he had seen going down to the car where Mkhize was shot. The Trial Court accepted his evidence and the evidence of Mrs Mkhize who said that the applicant had admitted to her that he had been a party to the killing of her husband, but that he did not do so out of his own free will. He told her that he had been pressurised to do so by Jamile. The Trial Court found these witnesses to be reliable and truthful and accordingly convicted the applicant.
In his evidence before us, applicant says that Jamile enquired from him if he was prepared to go and kill Mkhize. He told Jamile that he was willing to do so, whereupon he was told to wait for further instructions. Thereafter he was asked by Daluxolo if he knew whether Mkhize carried a firearm. Applicant expressed his belief that Mkhize did carry a firearm. A few weeks later and in response to an enquiry by Jamile, applicant told him that Mkhize used a red Chevrolet 3.8, but had other cars also. Applicant says that he took no part in the killing of Mkhize.
He later learnt from his sisters that Mkhize had been murdered. He suspected that Jamile and Daluxolo were directly involved in the killing of Mkhize and denied that he ever admitted to Mrs Mkhize or anyone else that he was present or had taken part in the killing of Mkhize. However, the Trial Court accepted the evidence of the State witness and found him guilty.
We accept the applicant's evidence that whatever he did in this regard was as a result of the instructions and for the influence of Jamile on him.
The attempted murder of Bhikilida Johannes Msomi, Delani Sikhakhane and Johannes Luthuli
Among the papers before us were affidavits by the abovenamed three persons. At about midnight of Good Friday in 1987, they were asleep in Msomi's room when someone pushed open the door. One of them shone a torch light on them and immediately some others fired several shots at them and then left. As a result of the shooting, they were all wounded, but fortunately no one was killed.
The applicant admits this incident. He says that he was the one who shone the torch into the room while his companions Vusi and Vela did the shooting. The torch and firearms were given to them by Jamile. They were also provided with balaclavas and overalls in order to conceal their identity.
It is common cause that the reason for the attack was that during the course of that day, a group of young UDF supporters had sworn at and jeered at Jamile. This had infuriated Jamile to such an extent that he wanted them to be killed. The applicant knew who they were and where they lived and had disclosed this information to Jamile. Applicant says that he was ordered to lead Vusi and Vela to the house occupied by those people. The victims of the shooting did not bother to report this incident to the police authorities. Consequently no one was charged for this offence.
The offences for which applicant and Jamile were charged, were committed against a background of political conflict in Clermont. Inkatha was desirous of incorporating Clermont and bringing it within the jurisdiction of the kwaZulu government. This was strenuously opposed by the Clermont Advisory Board. This was the key issue in the 1985 elections of the Board. Inkatha lost the elections and Jamile was defeated by Mr Tshabalala, the husband of Pearl Lindiwe Tshabalala who was murdered in 1988. From the papers before us, it appears that the Board enjoyed the support of the UDF. Almost all the victims in the charges against the applicant and Jamile were opposed to Inkatha.
The applicant found himself enmeshed in some or all of these offences to a greater or lesser degree. He was then a 16 year old youth who lived with his father. There was a good personal relationship between his father and Jamile who was their landlord. To the applicant, Jamile was an important and an influential person and a member of the kwaZulu government. It seems that applicant commenced doing odd errands for Jamile and enjoyed his patronage. As time went on applicant willingly complied with Jamile's requests to point out his political opponents. At some stage applicant began to identify himself with the politics of Jamile and became a member or supporter of Inkatha and acted as one of Jamile's bodyguards for which service he was paid R600-00 per month by Jamile.
All this leads us to the conclusion that applicant's participation in the offences for which he seeks amnesty and the offences for which he was acquitted, were committed by him under the orders of Jamile as the representative of Inkatha.
At the hearing Mrs Philisiwe Khuzwayo, the widow of Zazi Khuzwayo, informed the Committee that she did not support or oppose the granting of amnesty to the applicant. Mrs Zamaswazi Mkhize, the widow of Nicholas Mkhize, informed the Committee that in her opinion the applicant did not make a full disclosure of his participation in the killing of her husband. She was therefore opposing the granting of amnesty to him.
On a consideration of all the evidence, we are however satisfied that the applicant has made a full disclosure of all relevant facts.
He therefore falls within the terms of Section 20(2)(a) of the Act. He is accordingly
GRANTED AMNESTY: for
The murder of Zazi Khuzwayo on the 9th of May 1987 in Clermont;
- The murder of Nicholas Mkhize on the 15th of July 1988 at Clermont;
- The attempted murder of Bhikilida Johannes Msomi; Delani Sikhakhane and Johannes Luthuli on Good Friday of 1987 at Clermont.
SIGNED ON THE 7th DAY OF AUGUST 1997.
MALL, J
ADV C. DE JAGER SC
ADV N. SANDI
