DECISION
The applicant was convicted of the following crimes on the 22nd of March 1994:
The murder of Mahluleli Makhanya for which he was sentenced to imprisonment for ten (10) years;
- The murder of Beki Patrick Zwane, for which he was sentenced to three (3) years' which sentence ran concurrently with the previous one for ten (10) years;
- The attempted murder of Simiso Msomi, for which he was sentenced to imprisonment for five (5) years;
- Pointing a firearm for which hew as sentenced to imprisonment for six (6) months;
- For being in unlawful possession of a firearm and ammunition, for which he was sentenced jointly to imprisonment for two (2) years.
All these offences were committed in the Kwamakhuta area near Durban during April 1990. Applicant was then 24 years old. He was unemployed and lived with his parents. The Trial Court accepted that at that time there was a climate of violence in Kwamakhuta. There were factions in each area and attacks and counter-attacks between these factions was common place. The applicant resided in an IFP area. He says he was a member of the Inkatha Freedom Party (IFP) and so were his parents and grandfather.
The applicant now applies for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act, 34 of 1994 (the Act) in respect of all the counts. The application was not opposed by members of the family or Makhanya or any of the other victims.
Applicant says that one night in April 1990 his house was attacked by some unknown people who attempted to set it alight. Some damage was caused to the house and the curtains were destroyed by the fire. Although he sustained some physical injury he was able to repel the attack with a homemade firearm. The applicant believed that the at tackers were United Democratic Front (UDF) supporters because he heard them singing and changing UDF songs and slogans.
The applicant says that as a result of this incident, he resolved to avenge himself. Although he did not know the identity of the perpetrators, he decided to kill members or supporters of the UDF. He purchased a firearm on the 22nd of April 1990, he and his friend Beki Patrick Zwane went to a house in Section 23, Kwamakhuta. Applicant carried a gun and an axe and Zwane was also armed. Applicant says that the house was a shebeen which he believed was frequented by UDF supporters. On their arrival they saw a number of people there. among them was one Simiso Msomi who repeatedly asked applicant why he had come there. The applicant then opened fire at the people who hurriedly dispersed. Msomi was shot but fortunately for him, he was not seriously wounded. Applicant says that he then entered the house and saw Mahluleli Makhanya whom he had known as a member of the UDF. Makhanya was unarmed. Applicant shot him and hacked him with the axe to make sure he was dead. According to the Medico Legal Report Makhanya died as a result of a shotgun wound of the heart.
From the information before us, it seems that the applicant's friend, Zwane did not take part in the shooting. However, a week later he was shot and killed by the applicant.
Applicant annexed to his amnesty application form, a letter in which he says that he seeks amnesty for having shot and killed Beki Patrick Zwane. His reason for doing so was:
"The deceased was my friend and we were members of the IFP. At a later stage I realised that he was also a member of the ANC and I therefore decided to kill him."
In the course of his evidence before us, the applicant said that Zwane was shot when his gun went off accidentally. He was most unconvincing and was visibly uncomfortable in his effort to explain how Zwane was shot. After consulting with his legal representative, he decided not to persist in his request for amnesty for the murder of Zwane.
It was agreed on his behalf that the killing of Makhanya and the shooting of Msomi were acts committed with a political objective. Whilst we accept that at the time of the commission of the offences, there was evidence of political violence in the area, it does not ipso facto follow that all crimes and offences committed during that period were necessarily "acts committed with a political objective." The same also does not automatically follow merely, because the applicant was an IFP member or supporter at the relevant time, as he suggested, and the victim a UDF member.
If his house was attacked as he says it was, then it is patently clear that in murdering the deceased and shooting Msomi, the applicant was driven by anger and the desire to avenge the injury and loss he sustained. The evidence before the Committee does not indicate anything to the contrary. No political objective has been indicated.
We find that the crimes he committed were not even remotely related to any political objective. He is accordingly
REFUSED AMNESTY: .
SIGNED ON THE 15th DAY OF SEPTEMBER 1997.
MALL, J
ADV C. DE JAGER
ADV N. SANDI
