DECISION
This is an application brought by B.H. Jwambi and eleven others for amnesty in respect of four offences of murder and one of attempted murder, all allegedly committed on the 2nd of February 1987.
There appears to be some confusion as to the date in that Jwambi, in his application, gives the date as 2 February 1987, but in his evidence before us, whilst being questioned, he agreed with the date 1 February as being the date on which these events happened. Most of the other applicants, despite the date in their applications gave the date as 1 February 1987 in their affidavits. I do not think these differences are of any importance save for making it impossible to identify the crimes as having been committed on a certain date.
The applications filed on behalf of all twelve applicants were almost identical and I set out hereunder the relevant portions as they appear in the application of Soyiso Zuzani (twelfth applicant):
"7(a) If you are/were aware an officer/office bearer/member/supporter of any political organisation/institution/body or liberation movement, state name thereof
African National Congress.
10(a) State political objective sought to be achieved
To bring peace and promote unity amongst community.
(b) Your justification for regarding such act/s, omissions/s or offence/s as acts/s omissions/s or offence/s associated with a political objective:
1. In the context of the struggle for liberation in the townships, it became necessary to act to reduce crime against township residents. These criminals had completely selfish motives and their actions were in fact causing such division in the township communities that it had become very difficult to unite the people against the enemy - apartheid.
2. Our actions were accordingly intended to advance a political struggle. We perceived the criminals and gangsters as enemies of our struggle. In fact their actions lend credence to this argument of the white supremacists that blacks were not ready to govern themselves.
3. We did not however intend that anyone should die and we have grave remorse about this. In conclusion, I regard the offence as an act with a political objective for the above reasons.
11(a) Was/were the act/s, omission/s or offence/s committed in the execution of an order of, or on behalf of, or with the approval of, the organisation, institution, body, liberation movement, State department or Security Force concerned?
Yes.
(b) If so, state particulars of such order or approval and the date thereof and, if known the name and address of the person/s who gave such order or approval.
Body - community at large came to an agreement after many cases were reported to police several times without response. This brought anger to the victims of families who were terrorised and raped by the gangsters - known as the "Killer Boys"."
The hearing of the applications commenced on 30th of July 1996 when L. Kana (the second applicant), M.P, Katsikatsi (the third applicant), M. Mbusi (the fourth applicant), X.E. Nkukwana (the sixth applicant), M. Kana (the ninth applicant), M. Jamela (the tenth applicant and T. Kana (the eleventh applicant) gave evidence. They all commenced their evidence by handing in an affidavit made by them and confirming the contents thereof. The hearing was then adjourned to 12 November 1996 when B.H. Jwambi (the first applicant) gave evidence and handed in an affidavit. Affidavits were also handed in on behalf of B. Petros (the fifth applicant), M. Jakavu (the seventh applicant), M. Klaas (the eighth applicant) and S. Zuzani (the twelfth applicant). Written argument was filed later.
It was common cause that on the day in question four young men, allegedly members of the "Killer Boys" gang were brutally murdered by a large group of persons, apparently resident in the area. A fifth person was severely assaulted before he managed to escape and this gave rise to the attempted murder charge.
The first sixteen paragraphs of each affidavit were virtually identical and deal with conditions as they were in Mdantsane Township and the political situation there and I set out hereunder the contents of paragraphs 5 to 16 of B.H. Jwambi's affidavit. There is obviously a difference between his and that of the other applicants in respect of the relationship referred to in paragraph 15.
"5. My comrades during the trial which led to my conviction and sentence and myself were all residents of Mdantsane Township. We were all members of the Street Committee of the Mdantsane Residents' Association. These Street Committees were the forerunners of the present Self Defence Units which were created to protect communities against attacks from elements which were fighting and destroying progressive forces. The Street Committees performed the task of protecting the communities by ensuring that there was no carrying of dangerous weapons on the street and no commission of crimes against these communities.
6. Mdantsane Residents' Association, after the formation of the United Democratic Front, became an affiliate thereof. The United Democratic Front was the internal wing of the African National Congress.
7. Starting from the 1980's the Street Committees were in fact the African National Congress Area Political Committees and these were used as supportive structures for freedom fighters returning to South Africa. By mid-1980's these committees were serving in a more combat role rather than just offering support to incoming freedom fighters. These committees showed targeting installations which were seen as the symbols of oppressive forces. In Mdantsane these were the rent offices, police stations and other government buildings.
8. During this period both Ciskei and South African Military and Police Forces were realising that they were losing control of the situation. they showed using irregular forces and thugs as their covert agents to destabilise these communities and their committee. We saw in 1983 when there was a bus boycott, people on their way to the railway station, waylaid by thugs. These attacks reached such high levels that residents started to believe that the oppressive forces had hand in it
9. During 1986 the residents of the Units 1, 2 and 3 of Mdantsane Township began to endure a reign of terror from a group of people calling themselves "Killer Boys." These people were terrorising the residents by stabbing them with knives and pangas, hacking them with axes, raping the womenfolk and generally harassing them. People could not walk in the streets after dark. Young children could not be sent to the shops. The reports were made to the Street Committee.
10. The members of these Street Committees were put on the alert and the matters were closely monitored. It is during this period that the residents of the aforesaid units bona fide believed that the "Killer Boys" were agents of the Security Forces. This belief was further reinforced by the fact that although the actions of this group were always reported to the police, very few of them were arrested. Even those who were arrested were never successfully prosecuted and some were even released without appearing in court. We also observed that a sister to one of the "Killer Boys" was a girlfriend of a member of the Security Police. This was one Millia Bushula, who was involved with a certain Lobishe.
11. This belief was further fuelled by the fact that the majority of the victims of the Killer Boys were members of the Street Committees.
12. During this period, meetings of the Street Committees were frequently held in a shed at the house of Monwabisi Kana. Kana is one of the applicants for amnesty. Kana was also operating a shebeen at this place.
13. I may also mention that although this house was maintained and looked after by Kana, the house in fact belonged to the late Pinke Mpindi (may his departed soul rest in peace). Mpindi was an Umkhonto weSizwe soldier at the time.
14. During the period Pinke Mpindi had secretly returned to the country and the Police were looking for him. It was also at this time that Mpindi, Lulama Mcatha and other Umkhonto weSizwe soldiers that had returned, were training the Street Committees in both offensive and defensive tactics. The meeting place was in the shed at the house of Kana.
15. The matter between the Street Committees and the Killer Boys came to a head when the Killer Boys attacked patrons of the shebeen of Kana. During this attack one Mkhuseli Jwambi, a member of the Youth Brigade of the Street Committee was killed. Incidentally Jwambi is my younger brother."
I now deal briefly with the affidavit and evidence, if any, given by each applicant. In doing so, I will follow the order in which the applications were set down which was based on the number allocated to each applicant.
Bonakele Horatious Jwambi (1st applicant)
In his affidavit, he states that he was told by one Monwabisi Kana (the ninth applicant) at about 4am on 31 January 1987 that his younger brother Mkhuseli Jwambi had been stabbed at Kana's shebeen by members of the Killer Boys.
He went to hospital and on his arrival there, he was told that his brother had died; he thereafter returned home and reported to his family and then reported the matter to the Police. Later that morning he discovered that a number of the Killer Boys were still roaming the streets and they decided to go and remind the Police about their complaint and demand that action be taken.
They returned from the police station with a certain Warrant Officer Willie. They found a group of the Killer Boys and Warrant Officer Willie and Kana got out of his car and chased them. The Warrant Officer fired a warning shot in the air. He followed in his motor vehicle until he came on a group of people who were assaulting someone who was alleged to be a member of the Killer Boys. He puts this person into the boot of his vehicle, and proceeded towards house 1106, where he met Kana who got into the vehicle. At house 1106 they handed the person in the boot over to the Warrant Officer who took him to hospital. He left Kana at his house and then returned home to report to his mother and thereafter to tell other relatives of the death of his brother. He did not return home until 9pm when he heard a great deal of noise emanating from the 1100 Section. He went there and found a number of people gathered near house 1106 and he was told that people had gone to the scrap yard. He went there and when he got close to the crowd, he met Mabhongo Jamela (the tenth applicant) who told him that the Killer Boys were being burnt. he, Jwambi, said this should not happen and tried to shout above the noise to stop the people from carrying on as they were. He was not able to get to the front of the crowd and nobody took any notice of his shouts. People were singing and toyi-toying and appeared to be very angry. When he realised that he could not do anything, he left the scene and returned home where he was later arrested.
He did not give this version during his trial as he would have had to disclose the names of some of his comrades. In this regard he said:
"As a disciplined member of the Street Committee, I had taken the decision that I would protect my comrades and stand in with them. We had taken the decision that we would not implicate each other but would just deny being present at the scene.
Despite the fact that I did not agree with the decision to kill and burn the deceased, when I heard that my comrades had killed the deceased, I associated myself with their conduct. I also felt the frustration that they felt about the Killer Boys. It was also our responsibility to protect the members of our community from the actions of the people of the nature of the Killer Boys."
His affidavit continues to deal with the justification of the action of the Street Committee as set out hereunder.
"The action of our Street committee in the killing of members of the Killer Boys were associated with the political objective of liberating of our people. We were acting in our capacity as members of the Street Committee of the Mdantsane Residents' Association which in turn affiliated to the African National Congress. This was committed in the course of conflicts between the oppressed people of South Africa and the surrogates of the oppressive regime. The deceased and other members of the gang had been terrorising the residents for a long period. Lives were lost and people injured. As a result thereof the action taken against the deceased was not disproportionate with their conduct.
Our actions were planned, directed and ordered and committed within the Republic of South Africa. Our action was done as members of the African National Congress and in furtherance of the political struggle waged by the said organisation. I need to explain here that there was no direct order from the African National Congress that the deceased must be killed. The decision was taken by the residents of NU 1 and the Street Committee. This decision was taken because the deceased were regarded as the enemy of the people. The decision of the people was therefore in line with the main objective of the African National Congress namely, the liberation of the people of South Africa. Even at the time we were looking for these people, all the residents of NU 1 were assisting us."
The latter two paragraphs are also contained in affidavits filed by all the applicants as is the averment:
"At the time of the commission of the aforesaid crimes, I was acting within the course and scope of my duties as a member of the Street Committee."
When Jwambi came to give evidence he was asked if he thought the Killer Boys were working with the Police. After explaining what a problem they were he said that if their deeds were reported to the Police, they would either not be arrested or would be released after a short period. He spoke of attacks by the police and by gangsters on a house used by the comrades. He testified that he reported his brother's death to the Police but he was not present at a meeting that evening when a decision was taken to go and hunt for the killers. He thought the residents had decided these people should be killed at the scrap yard. He concluded his evidence in chief by explaining that Archiebooi Swartland, one of the deceased, was the brother-in-law of Mandlenkosi Jakavu (the seventh applicant).
Under cross-examination, he agreed that his brother had been stabbed whilst at a shebeen of Kana's and he had heard that Moominca Bolitana, one of the Killer Boys was responsible. He denied that he was present when the decision was taken to search for the Killer Boys or that he had any part of the killings or in the attempted murder. He repeated that he only arrived when the victims were already on fire and that he tried to stop the attack. He had been, so he said, wrongly convicted. He said he gave evidence at his trial but it was difficult for him to name the people who were responsible for this, as he could not give away his comrades' names.
Luyanda Kana (second applicant)
In his affidavit, as set out hereunder, he dealt in detail with the killing of Mkhuseli Jwambi and what happened thereafter terminating in the death of the four Killer Boys. He said:
"The matter between the Street Committees and the Killer Boys came to a head when the Killer Boys attacked patrons of the shebeen of Kana. During this attack one Mkhuseli Jwambi, a member of the Youth Brigade of the Street Committee was killed. Incidentally Jwambi is the brother of one of my comrades.
The residents of NU 1 firmly believed that this was a political attack by surrogates of the Security Forces. This was further confirmed by the report that when the attackers arrived at the shebeen they went around asking people's names, stabbing people they did not know. We bona fide believed that this group had been sent to assassinate Mpindi, and other Umkhonto weSizwe soldiers who were frequenting that place.
On 1 February 1987 I learnt that Mkhuseli Jwambi had been fatally stabbed by the Killer Boys. Whilst I was still at home, members of the Killer Boys appeared and stood outside my yard. One of them said I am going to follow Mkhuseli. I did not respond to this.
I went to the house where Jwambi had been killed and I was told that people there had gone to the police station. When the people had returned from the police station an urgent meeting of the members of the Street Committee was held. This was about 12 midday. At this meeting it was decided that the members of the Killer Boys should be fetched from their homes, the meeting however dispersed without action being taken.
On that same day, at about 02H00 (this should it seems be 14H00) another meeting of the Street Committee and some residents of NU 1 was held. It was then decided that members of the Killer Boys should be fetched from their homes. We were divided into small groups and we left to look for members of the Killer Boys. My group and myself went to fetch the late Folly Bushula (may his departed soul rest in peace). When we got to his home we filled the whole yard and some people entered the house and others went to the shacks in the yard. We did not find Bushula outside the house. As we were leaving his father called out and said "here is this dog leave with him". We then left with him to look for the late Mpumelelo Mbinqo (may his departed soul rest in peace). On the way, we were hitting Bushula with sjamboks and sticks.
We found Mbinqo at some shacks and we also started hitting him with sjamboks. At this stage I noticed that some people had sharp instruments and were hitting both Mbinqo and Bushula with these.
We took both Mbinqo and Bushula to House No 1106 NU 1, where we had agreed to reassemble. On the way to this house we were singing freedom song and toyi-toying.
When we arrived at this house another group arrived with other members of the Killer Boys in the boot of a motor vehicle. They were taken out of the motor vehicle and joined the other two. The beating continued.
It was then decided that we should go to the scrap yard where the Killer Boys would be beaten and then taken to the police station.
The members of the Killer Boys were then taken to the scrap yard. A large crowd of people had now gathered.
I need to pause here to explain that our initial intention was to punish these people and taken them to the police station.
When we got to the scrap yard, the large crown that had gathered had gone wild and was singing freedom songs, toyi-toying. A certain boy lit a fire so that people could see properly. This far was late extinguished. Thereafter people started shouting that the deceased and Vellem should be burnt.
As a member of the Street Committee I was one of the people who were holding some of the deceased. We then decided to abide by the decision of the people and burn the deceased. I then noticed that another fire had been lit and Bushula had been put on it. Jamela pulled him out of the fire. Bushula was again returned to the fire.
Thereafter I put a tyre on Wazina Yekani and it was set alight. All the others were then set alight. I also stood guard as others were set on fire.
During all this period the large crowd was singing freedom songs and toyi-toying.
One Mbulelo Vellem managed to escape and people chased him. I remained behind watching the people who were burning.
We left the deceased burning and we returned to House number 1106. When we got to House number 1106, it was decided that a list of people who participated in the killing of the deceased should be made and handed over to the Police. It was decided that females and young children would be excluded from the list. They were told to leave immediately and they left. Whilst we were making up a list, members of the then Ciskei Defence Force appeared and we were then arrested.
We were then assaulted, loaded into their vehicles and taken to the police station.
At the police station, we were further assaulted until the following morning. At some stage Mseki Mbusi, Soyiso Zuzani and Thembisile Zini Nelani were ordered to remove the charred bodies of the deceased from the police van and put them in the police mortuary. Gubese, Hamlet Nkohla and other policemen ordered us to kiss the charred bodies. They further ordered us to eat pieces of flesh from the bodies. I had to put a piece of human flesh in my mouth and chew it, but I did not swallow it."
When he came to give evidence, he confirmed the correctness of his affidavit which set out the acts for which he had been convicted and sentenced. Under cross-examination he amplified his statement that the Killer Boys were being used as agents of the State to destabilise the area. He said further that the death of Nkuseli Jwambi triggered off the incident. Some people in the area said that the killing of the four was not politically motivated. It was not their intention that the deceased should die as they did but at that time the people's anger was beyond control. Their intention was merely to beat the Killer Boys. He agreed that he participated to the full in that he put a tyre on one of them and set it alight and then stood guard at the fire as he had said in his affidavit.
Mzwabantu Patrick Matsikatsi (third applicant)
In his affidavit he said that on 1 February, while he was on his way to a shop he was told that a meeting had been held at which it was decided that the members of the Killer Boys who had killed Jwambi should be fetched.
He was glad that such a decision had been made as he knew that these boys were targeting our members (the comrades). About two hours later he heard from Vukile Hlope that the Killer Boys are no more. He then slept and woke up the following morning. He said that he left home and went to stay with his sister in Umtata and after two days he phoned home and when he was told that the Police were not looking for him, he came back, but he surrendered to the Police after three weeks. He alleges that he was told by one Major Seyisi that he knew that he was not directly involved in the matter, but he wanted him to turn State witness and it was only when he refused to do so that he was charged.
When he came to give evidence he confirmed the correctness of the application and the affidavit he had made. He explained why he had come to the belief that the Killer Boys were working with the police and gave evidence as to certain incidents he alleged had happened in the township. He explained how it came about that in his amnesty application, he did not mention that he did not participate in the actual killing of the deceased. Under cross-examination he was asked to confirm the contents of paragraphs 17, 18 and 19 of his affidavit which stated that he did not have any part whatsoever in the abduction or the killings of the victims. He did so and it was then explained to him that in that event the Committee might not be in a position to grant him amnesty in respect of offences which he had not committed. He then said he was involved in all this. It just was he was not at the scene of the crime. He was then questioned about each of the paragraphs in turn and said that after he had been told of the decision to fetch the Killer Boys, he went with the people to fetch them and took them to House number 1106 and then to the scrap yard.
When he first joined the group he was told that they were going to take the Killer Boys to the police. He knew one of them, Archie, who he had gone to initiation school with, and he told him not to run away but that he should come with them which he duly did. They then went to the scrap yard where he found that the Killer Boys were being beaten. He said:
"We were beating them."
Most of the people of the area were at the scrap yard and the crowd was very angry saying they must burn and so forth. He then said he was too anxious to watch this so he decided to go home which he did. Two hours later he was told by Vukile Hlopo that there won't be any more Killer Boys. He was then told that they had been burnt. He said that he realised that the people were very angry and he knew that something was going to happen because the crowd was extremely angry. When he saw the police in the district the next morning, he got his car and went straight away to his sister in the Transkei.
Under further cross-examination he agreed that he had taken part in the abduction of the Killer Boys, that there was no fire burning in the scrap yard when they arrived there and that he took part in lighting any fire. He realised that they were going to be killed when they got to the scrap yard and people were saying they should burn and he said he did not want to be there any more because the anger of the crowd was out of control.
He was not very frank in answering questions as to what his intention was and I quote:
"It was not that I was running away not wanting to be part of it. What really got to me was that I couldn't stand this whole thing. I couldn't stand to watch all this because, I mean, I was part of the abduction to show that I was part of this whole thing, but I just couldn't stand to watch the rest of it, and that's when I decided to leave."
He confirmed that he had absolutely no part in the murder of the Killer Boys. When questioned by a member of the Committee he said that he took part in the abduction of Archie, who was one of the persons who was killed. He came with them and walked as part of their group and was not manhandled by them. He said he did not realise that the crowd would en up killing Archie when he took him there. He thought that the people would be beaten and then taken to the police station. He had a six year old child with him at the time.
His Attorney then told the committee that he had instructions from the applicant to amend the affidavit and that he had given his secretary instructions to do so. He, however, had not at any time checked to see if it had been amended and the affidavit that was given to the applicant for signature, was the original version. He said he only realised this when the applicant was being cross-questioned. It is a somewhat surprising approach that an Attorney will call a witness and ask him to confirm the contents of an affidavit which he has not checked with the witness.
Mseki Mbusi (fourth applicant)
His application differed somewhat from that of his co-applicants in that in respect of paragraph 11(b) (supra) he said:
"Body made up of residents came to an agreement after Police failed to turn up when the case about the gangsters was reported to them. That brought anger among the victims and residents deciding to take the matter on their hands."
From his affidavit it emerges that he was in the shebeen at House number 1106 on the night in question and saw the argument develop between Naminca Botilana, the leader of the Killer Boys and Mkhuseli Jwambi. He saw Botilana stab Jwambi twice in the chest and thereafter Jwambi was taken to hospital. The next day he saw other members of the Killer Boys who told him they did not want to see anybody on the streets after 6pm and that they were going to close the shebeen at this time.
He attended a meeting of the Street Committee members at House number 1106 at 8pm that evening and joined them in looking for members of the Killer Boys. His group found Mbulelelo Vellem hiding in a house and they brought him to House number 2206 where other members of the Killer Boys had been taken to. They were beaten and it was then decided that they should be taken to the scrap yard where they would be punished and handed over to the police. There was a large crowd at the scrap yard and at a certain stage he saw that a fire had been lit and there was shouting that the deceased should be burnt. This was then decided and tyres were put on the deceased and they were set alight. After that he returned to House number 1106 where they started to compile a list of people present. Thereafter members of the Ciskei Defence Force arrived and arrested them. They were taken to the police station wherein a particularly horrifying description he said:
"We were then taken to the police station. At the police station we were assaulted the whole night. At some stage Thembisile Zini Nelani, Luyanda Kana and myself were ordered to remove the charred bodies of the deceased from the police vans and put them in the police mortuary. In the process Gubese and Nkohla ordered us to kiss the bodies and eat pieces of flesh. I only kissed the bodies but did not eat the flesh."
When he gave evidence he said that he did nothing personally at the scrap yard. He dealt at some length as to what happened when they were sent to fetch the corpses. When cross-examined as to whether the shebeen that was to be closed down was not that run by Kana, referred to in his evidence as 1106, he said he was unable to confirm or deny if this applied only to this shebeen as he had not been at a shebeen on the night in question.
-them and then hand them over to the police. A large crowd of people had gathered there and he then realised that a fire had been lit and that Bushula was on it. Thereafter, all the deceased were burnt with tyres. He and his group then left for House number 1106 where they intended to make a list of all the people who had participated in killing the deceased. He did not give evidence.
Xolile Edgar Nkukwana (sixth applicant)
He said in his affidavit that he heard about the killing of Mkhuseli Jwambi while he was drinking at a shebeen at about 7pm. On his way home he met a group of people escorting Mpumelelo Mbinqo who he knew to be one of the gang members who had killed Jwambi. He went up to Mbinqo and hit him and asked him why he had killed Jwambi. The leading members of the group were members of the Street Committee and he joined them in going to House number 1106 where they were joined by other groups with other members of the Killer Boys. They were taken to the scrap yard where they were beaten and later it was suggested that they should be killed. Nkukwana said that at that stage he became afraid and said they should not be killed by fire; somebody from the crowd stated that if we did not kill them by fire, then he himself should be killed. He then stood there and watched. As tyres were put around the deceased, one Wazina Yekani called out to him begging him to save him. He told him that he could not as he had been threatened with fire as well. The deceased were then burnt.
Members of his unit and other people then left and went to House number 1106 to draw up a list of people who were present which would be handed over to the Police. They were then arrested and taken to the police station and were beaten until the next morning.
When he gave evidence he dealt very briefly with why he believed that the Killer Boys were working with the police. One of his reasons for believing this is that one of the sisters of the Killer Boys had something to do with the Security Police in Tzaneen. She was apparently in love with one of them.
Under cross-examination he said he took no part in the abduction of any of the Killer Boys, nor did he play any part in the killing of any of them. He did not encourage anyone else to do so and accordingly was of the view that he should not have been convicted. He also said he knew nothing about any plan to fetch the members of the Killer Boys in order to punish them for the killing of Jwambi.
Mandlenkosi Jakavu (seventh applicant)
He handed in an affidavit but did not give evidence before us. In his affidavit he said he heard of the killing of Jwambi and that evening was told by Wonke Faku that the members of the Killer Boys had been arrested and were going to be punished. He heard that they had been taken to the scrap yard and on his way there had stopped to talk to a certain Abakhwetha. He was with him for some time and heard noise from the scrap yard and noticed a fire there. When he arrived at the scrap yard, he noticed the deceased were burning. He left with the group that went to House number 1106 where they started compiling a list of people that were present. They were then arrested and taken to the police station where they were beaten until the following day. He said in his affidavit that he did not give the Trial Court the true version of his involvement as they had taken a decision that they would not implicate each other and he feared that if he gave a true version, he would have to implicate some of his fellow comrades.
Mbuyiselo Klaas (eighth applicant)
He also handed in an affidavit without giving evidence. In his affidavit he said that on 1 February when he was at home a young boy arrived saying he had been sent to fetch paraffin. When asked what was happening he said that the residents of NU 1 had decided to burn members of the Killer Boys. The boy was given paraffin and he left with it. Shortly after this the applicant followed him and went to the scrap yard. When he got there, he met members of the Street Committee who were present and found that the deceased were already burning. He remained there with the crowd and then went with the others to House number 1106 where he confirmed the version given by the others who were arrested there. He in his affidavit gave the same excuse for not having revealed in court that he was at the scene; that is that he would have to identify some of his comrades.
Monwabisi Kana (ninth applicant)
He handed in an affidavit and gave evidence before us. In his affidavit he stated that on 31 January while serving customers at his shebeen at House number 1106 he was told to switch off the radio. He duly did so and when he went outside the house, he found a number of people bleeding in the yard who had allegedly been stabbed by the Killer Boys. He went to the Killer Boys and while talking to them, Mwambi joined and asked what was happening. The Killer Boys did not reply but attacked him with knives, he tried to intervene but Jwambi was stabbed twice on the chest and fell down. The Killer Boys then ran away and Jwambi was then taken to hospital. The next morning he reported this fact to Jambi's home and went with them to the police station. A message was left at his house by the Killer Boys telling him that he must close his shebeen at 6pm that evening. He went back to the police station to report this, but was told that they still had a problem with police vans. They then left in Jwambi's vehicle followed by a police van which was left at his house while he, the police officer and Jwambi went looking for the Killer Boys. One of them was arrested and taken to hospital.
At about midday a meeting of the Street Committee was held at his house and it was decided that the Killer Boys should be sought, punished and handed over to the Police. That evening members of the Street Committee and residents went looking for them. He himself remained at his house. Later groups came back to his house with six of the Killer Boys. It was decided that they should be taken to the scrap yard where they could be punished and later handed over to the police and he accompanied the crowd to the scrap yard. There they were beaten and at some stage he noticed that there was a fire and some of the de ceased were on fire. All the deceased were then burnt. They then returned to his house and assembled at a shed behind the house compiling a list of people who were present.
Whilst doing this members of the Ciskei Defence Force arrived and arrested his comrades. He was not arrested as he was not pointed out by the people with the soldiers. He was arrested later.
During his trial he confirmed both the application and the affidavit. He said that he was living at House number 1106, because it was a house that was used to great extent by the people and they would have meetings there as well. So it was a place which became known that if there was anything happening, that is where people would gather and decisions would be taken. After cross-examination he agreed that he was party to the decision in regard to the abduction of the Killer Boys and that they were brought back to his house. He said that he had no intention of killing them then or when they were taken to the scrap yard and that he himself did not beat or torture any of the deceased. He did not encourage anyone to do so and took no part in the murder at all. However, when he was then asked by the cross-examiner whether he was innocent of the crime for which he was convicted he said he was guilty. Before the questioning he said that what he was guilty of is being present among the people that killed this person and as a spectator, somebody that supported it. He agreed that he supported the killing but said that he did not encourage anyone to do so. When questioned by the Committee he said he was not even there when these people were burnt and that is what he told the Judge at his trial. This, however, was not true and he was lying to the Judge. Two of the applicants gave evidence denying that they were there or took any part in the killings. When asked whether the killing of the Killer Boys was merely a revenge killing in respect of the murder of Mkhuseli Jwambi he replied:
"I could not say that it was revenge because the Killer Boys - I would say that that was the last thing that we did, because things had been happening for a long time and they were being ignored and people were not being arrested. And what happened was Mkhuseli was the last thing, the final straw."
When asked why people gathered at House number 1106, he replied that this was their hiding place when they used to have clandestine meetings because they were not allowed to hold meetings at that time. The meeting was convened by the residents and the Street Committee and was held at House number 1106 because that was the place where they always used to have meetings. He had some difficulty in explaining why the meeting was held at House number 1106 if this was a secret venue. He was very evasive when asked how many people were there and said they would have to say so themselves.
Mabongo Jamela (tenth applicant)
In his affidavit he said that when he was returning from the bus terminus, he saw a group of people outside House number 1106, and the body of Mkhuseli Jwambi lying there. He was told that he had been killed by the Killer Boys and he organised a vehicle to convey his body to the hospital. On the next day, the 1st of February 1987, he saw a group of Killer Boys going to House number 1106 and when he visited there later he was told that the Killer Boys had left an order that the shebeen had to be closed at 6pm and that they did not want to see anybody on the streets after that.
At about noon that day, they convened a meeting of the Street Committee and some of the residents. At that meeting it was decided that as the Police were very slow in arresting these boys they should punish them themselves and at about 8pm they reassembled at House number 1106 for the purpose of looking for the Killer Boys. They split into small groups and he travelled with a group in the motor vehicle belonging to Mxolisi Jakavu (the seventh applicant). The group he was with caught Mbulelelo Vellem and Mkuseli Nqikashe. They then went to the home of Naminca Botilala but were told that he was at Abakwetha's. On the way there they met a group of people who were holding Archie Swartland and he was also locked in the boot of the car. They then went to the home of Wazina Yekani and having found him there, took him with them to House number 1106. At that place they took the people they caught out of the car and started beating them. It was then decided to take them to the scrap yard for further punishment and handing over to the Police.
At the scrap yard a large crowd had gathered and people were singing and toyi-toying. It was difficult to see what people were doing and as it became dark, it became more difficult to do so. Somebody lit a fire so that people could see properly. The fire was later extinguished and people started shouting that the deceased and Vellem should be burnt. He then noticed that another fire had been lit and Bushula had been thrown on it. He dragged him out of the fire, people shouted at him, Bushula was put back onto the fire. He then went to Jwambi and asked him to intervene but he was unable to do so successfully. They then all went to House number 1106 where they started compiling a list of people who were present. They were then arrested by members of the Ciskei Defence Force and taken to the police station where they were beaten. He was one of those who was taken to load the charred bodies and directed to eat a piece of the flesh. He refused to do so and he was assaulted again.
When he came to give evidence he confirmed the correctness of his application and the affidavit that he had made. He said that he tried to stop people being burnt and that he himself did not commit murder. He was asked what the purpose was of compiling a list of those who were present and he said it was so that everyone who was present, could be found and handed themselves over at the police station. When they were drawing up the list, the soldiers came and took the list from them.
After this applicant had completed his evidence, there was some discussion between his Counsel and members of the Committee as to the necessity for calling an applicant to give evidence after an affidavit had been handed in and he was informed that no inference would be drawn against a person who did not give evidence because this was not an adversarial situation; the function of the Committee is to enquire into the application and to decide whether the applicants have made out a proper case for the granting of amnesty.
Thando Kana (eleventh applicant)
In his affidavit he said that on the night of 1 February 1987 he attended a meeting of members of the Street Committee at House number 1106, where it was decided to go and look for members of the Killer Boys and bring them to that house. He was in the group which went and fetched Mpumelelo Mbinqo and Folie Bushula. They did not find Bushula but as they were leaving his father called out and they then found him and left with him. They brought these people to House number 1106 where it was decided that they should be taken to the scrap yard where they would be punished and handed over to the police. At this stage a large crowd of people had gathered and they were singing freedom songs and toyi-toying. He also said that a fire was lit there so that people could see properly and that this fire was later extinguished. Thereupon people started shouting that the deceased and Vellem should be burnt and another fire was lit and Bushula was upon it. At some stage Jamela pulled him out but he was returned to the fire and he, the applicant, then assisted in setting Mpumelelo Mbinqo on fire and stood guard as others were set on fire. He said he stood around while the deceased were burning and they then left for House number 1106 where they intended to compile a list of the people who had participated in the killing of the deceased. However, while they were doing this, the Defence Force arrived and some people were arrested. He went home and was not arrested for about two months.
He then gave evidence confirming the correctness of both his application and his affidavit. He explained why he regarded the Killer Boys as collaborators with the Police. The conduct he complained of appears to have been of a completely non-political nature and was that of hooligans disrupting shebeens, preventing people shopping and things of that nature. However, he did say that when matters were reported to the Police, the Police would arrest them and they would be released very shortly thereafter. He also referred to the fact that the sister of one of them was in love with a member of the Security Police. He was one of the few applicants who said that he took part in the decision to look for the Killer Boys and that he participated personally in setting one of them on fire and he said in evidence:
"What I did was, when the fire was lit, and I saw the fire was burning and since they were saying that the Killer Boys must burn, what I did was, I took Mpumelelo Mbinqo and I threw him into the fire, and he burnt."
When asked who lit the fire he said he wouldn't know because it was dark at the time. By the time the fire was first lit they were in the process of beating them with sjamboks. The reason why they were burnt was that the members of the Committee with the residents of the Section were fed up with them and the deeds they were committing, he evil criminal deeds that they used to commit. He did not mention this at his trial.
He was a member of the Street Committee and at the time the deceased were burnt, there were other members of the Street Committee present. He at first said they were also involved in the decision that the deceased should be burnt. He later made it clear that members of the community made the decision.
Under cross-examination he said that the members of the Street Committee, together with the residents of Unit 1 decided that they should go and fetch the Killer Boys from their homes and taken them to House number 1106 where they used to hold their meetings and punish them there. From House number 1106 they were to be taken to the scrap yard to be punished and thereafter hand them over to the Police. That is the decision they arrived at House number 1106. He explained that they couldn't give them a beating at House number 1106 and take them to the police station, because it was a place where they used to sell liquor and used to hold meetings at the back of the house and it was a secret place and they did not want people to know about it. That is why they decided to take them there and from there, to the scrap yard and punish them there and then send them to the Police.
This seems a very irrational explanation of why they were taken to House 1106 in the first place if it was a secret place and they did not want people to of it. He was questioned about this and agreed that the decision originally taken at House number 1106 was that they should go and fetch them from their homes and bring them to House number 1106 and then take them to the scrap yard where they were going to punish them.
Under cross-examination he said that it was Bushula's father who told them to take the dog away and leave with him to be killed, to die.
When asked about what happened at the scrap yard, he said it was there that community members said that they should kill them. There was nobody on the Street Committee that said so. He said it was both men, women and children who called out that this should be done. He said that at this stage the anger of the crowd was beyond their control and that had they not done what they were told to do, the crowd could have thrown them into the fire as well.
When questioned by a member of the Committee he said that when he threw Mbinqo on the fire, he was standing up and still alive and that he was the only person who dragged him to the fire. He attempted to struggle. He was then reminded that in his evidence in chief, he had said that the deceased was not struggling. He was unable to explain why his evidence had changed in this regard. He also said he was unable to say who else was throwing people onto the fire because there were a lot of people there and he did not take notice of who was taking them and throwing them onto the fire. It seems incredible that when they had taken people there for the purpose of assaulting them and thereupon as a result of crowd influence decided to throw them on the fire, he would not notice which of his friends, comrades and fellow members of the Street Committee took part in such action. He was asked several questions about this but insisted that he did not see who was carrying the other people and throwing them into the fire. He was then reminded that in his affidavit he said he also stood guard as others were set on fire. He insisted that he put Mbinqo on the fire by himself despite the fact that in his affidavit he had said:
"I then assisted in setting Mpumelelo Mbinqo on fire."
He as asked several more questions about what steps they had taken to prevent the Killer Boys from carrying on with their criminal activities in the community. It appears that very little was done by the Street Committee in this regard. It would perhaps be relevant to set out the final question he was asked and his answer thereto:
"Let me ask this question - if you did not believe that the Killer Boys were in collaboration with the Police, would the decision to abduct them have been taken at all?
The reason that we took that decision to fetch them at their houses, is because they killed Mkhuseli Jwambi and we decided that this was now the last straw."
In re-examination he was asked:
"If you did not believe that the deceased were collaborating with the Police, would you have taken the decision to go and abduct them?
Yes, we had made the decision."
His Attorney's attention was drawn to the fact that he had not answered the question asked. It was then put to him in a very different form, this time being:
"Was it one of the reasons that caused them to go and decide to abduct the deceased, was that they believed they were collaborating with the Police?"
To this he agreed. He then said that if he had not believed they were collaborating with the Police, they would not have decided to go and abduct them. He again said that the list that had been prepared was taken by the soldiers.
After Jwambi had given evidence in East London, it was placed on record that Mandlenkosi Jakavu (the seventh applicant) was the brother-in-law of the one deceased, namely Archiebooi Swartland.
The affidavits of the other applicant who chose not to testify were handed in. The last of them being that of Soyiso Zuzani, the twelfth applicant.
Soyiso Zuzani (twelfth applicant)
In his affidavit he said tat on 1 February 1987 he received a message that there was a meeting of members of the Street Committee at House number 1106 and he went to attend the meeting. On the way he met members of the Street Committee and a large crowd of people going towards the scrap yard. The deceased were with them. People were singing freedom songs and toyi-toying and when they got to the scrap yard a young boy lit a fire so that people could see properly. This fire was later extinguished and thereafter people started shouting that the deceased must be burnt and they were burnt. He said he did not participate in the burning of the deceased, but he was among the crowd of people. He returned with the others to House number 1106. They were arrested by members of the Defence Force and taken to the police station where they were assaulted. He was also one of those who was taken to remove the charred bodies and told to eat pieces of the flesh.
He also said that he did not give his version of non-participation to the Court at the time of his trial, because they had taken a decision that they would not implicate each other and he feared that if he told the Court the truth, it might implicate some of his comrades. He elected not to give evidence and accordingly once again, did not in any way implicate any of his comrades.
Findings
It will be seen that all the applicants, when explaining their applications their justification for regarding the murders as acts associated with a political objective, stated that the Killer Boys were terrorising the residents by stabbing them with knives and pangas, hacking them with axes, raping the womenfolk and generally destabilising the community. Although the applicants alluded to the fact that the Killer Boys were perceived to be collaborating with the Police, they were unable to provide any reasonable grounds on which their perceptions were based. They also stated that they did not intend that anyone should die. When asked if the acts were committed in the execution of an order of, or on behalf of, or with the approval of the liberation movement they said yes and when asked to give particulars of the order or approval they replied:
"Body - community at large came to an agreement after many cases were reported to police several times without response. This brought anger to the victims of families who were terrorised and raped by the gangsters known as the Killer Boys."
In the affidavits made by them, they all stated they were members of the Street Committee of the Mdantsane Residents' Association which became an affiliate of the United Democratic Front, the internal wing of the African National Congress, although in their affidavits they stated there was no direct order from the African National Congress that the deceased must be killed and that the decision was taken by the residents of NU 1 and the Street Committee, none of the applicants who gave evidence spoke of any such decision by the Street Committee. On the contrary, they said the decision was to get hold of members of the gang, to beat them and then to hand them over to the Police.
Their version was that the Street Committee decided the members of the Killer Boys should be fetched from their homes, taken to House number 1106 and then to the scrap yard where they would be beaten before being handed over to the Police. It was only after members of the public, in large numbers, joined them and after a fire had been lit to provide light that a demand was made that the Killer Boys should be burnt. It appears from the evidence that this was because members of the community felt that the stabbing of Mkhuseli Jwambi at the shebeen, was the last straw.
Only two of the applicants admitted taking part in the killing of the deceased. These were the second and the eleventh applicants. The second applicant said he decided to abide the decision of the people and burn the deceased - the people's anger was beyond control. The eleventh applicant said the people started shouting that the deceased should be burnt and after Jamela pulled Bushula from the fire, he assisted in putting Mbinqo on the fire. The reason why they were burnt was that members of the Committee with the residents of the Section were fed up with them and the deeds they were committing - the evil criminal deeds they had committed. He later made it clear that it was the community members who said they should kill them. The anger of the crowd was beyond control.
Some of the applicants, such as the first, sixth and tenth applicants said they tried to prevent the burning. Others of the applicants admitted having been present but denied or made no admission of any participation in the killings. These included the fourth, the fifth, the ninth and twelfth applicants. The remaining applications denied having been present during the burnings; they had either gone home or arrived after them. These consisted of the third, seventh and the eighth applicants.
For the applicants to succeed in their application, they must satisfy us that the act, that is the burning of the deceased, is an act associated with a political objective (Section 20(1)(b) and was an act committed by a person falling within the definition of Section 20(2)(a), (d) or (f) and in deciding whether this is so, we have had regard to the criteria in Section 20(3).
On the evidence before us, we do not accept that the killing of the deceased, in the circumstances existing, were acts associated with a political objective or were committed on behalf of any liberation movement within the course and scope of any express or implied authority. Nor do we believe that the applicants believed, on reasonable grounds, that they were acting within such authority. The acts did not occur in the course of a political disturbance; the object of the killings were to take revenge against the members of the gang and they were committed out of enmity against them. This is confirmed by the method used to kill these gang members.
In these circumstances, the applicants are not entitled to amnesty in terms of the Act. The amnesty applications of the twelve applicants are
ACCORDINGLY REFUSED: .
SIGNED ON THE 21st DAY OF AUGUST 1997.
WILSON, J
NGOEPE, J
C DE JAGER, SC
MS S. KHAMPEPE
