DECISION
The five applicants in this matter have applied for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 35 of 1995, (the Act), as amended, with respect to the killing of one Godfrey "KK" Ngqandu and one Dick Boetie "Bafino" Sedisa.
The incident occurred on the 8th September 1991 at Bekkersdal township in Westonaria. The applicants were convicted of two counts of murder in 1992. The sentences imposed by the court on each applicant range from 10 to 13 years imprisonment for both counts of murder.
All the applicants elected to give oral evidence. This evidence was largely similar as all five applicants participated in the incident contemporaneously. The testimony of the first applicant, Joel Morapisi Mokoena, set aside and circumstances of the killing. All the material aspects of his evidence were confirmed by the other applicants. Further the material aspects of this and did not differ widely from the evidence given at the trial by the state witnesses.
SUMMARY OF THE EVIDENCE
1. Joel Morapisi Mokoena
Mokoena's evidence was that he was a member of the African National Congress Youth League, Khutsong Branch. Khutsong is a township of Carltonville. The five Applicants and the deceased resided in Khutsong. Bekkersdal is a township of Westinaria, which is adjacent to Cartonville. It is here that the actual killing took place.
Mokoena testified that he was also a member of the local Self Defence Unit, and that he was particular;y active in Block 7 where he lived. From the evidence led, it would appear that all the applicants either lived in Block 7 or were active as Self Defence Unit members in Block 7.
It was common cause that the majority of the residents of khutsong were members and supporters of the African National Congress. No evidence of any rivalry between political parties wee led. The nub of the problems in the area stemmed from the activities of criminal gangs and criminal elements.
The evidence was that gangsterism and crime reigned in the area. The deceased were known to be part of the criminal element that participated in these criminal activities. Furthermore, the perception was that the targets of these criminal elements were ANC members, and that although reports were made to the police about these criminal acts, nothing or very little was done by the police to assist or protect the community.
The criminals were known, Mokoena testified, for pick-pocketing, stabbing, stealing, killing and harassing students and ANCYL members.
Mokoena elaborated on the background to the incident of the 8th September 1991. His testimony was that various attacks on ANC members had taken place from about late 1989. In or around September 1989, one Lucas Manqane Bodibe, an ANC activist and SDU member, was killed by what Mokoena referred to as "the same criminal gangsters". He was attacked by the most notorious members of the criminal gang, including one Twala, Big Five, and one of the deceased, namely "KK".
A mandate was given by the Executive committee of the Khutsong Student Congress, to go and search for those responsible for the attack and hand them over to the police. Unfortunately, the culprits could not be found. The matter was reported to the police, who did nothing.
In 1991, during the Easter long weekend, another comrade, Gordaon Mahuma, was harassed, held at gun-point, and accused of being a comrade. It would appear that the same criminal elements were responsible for this. This matter was reported to the police, to no effect.
In August 1991, the family of another of their comrades, namely Andrew Matshaba was attacked. Once again this incident was reported to the police, but no arrests followed.
On the 7th September 1991 yet another comrade, John Mokome, was attacked by the deceased and their criminal gang. This incident took place as Mokome and one Kati Sekome walked home (to Block 7) after an evening at a party. Sekome rushed back to report to those of his comrades who were still at the party, including the applicants. Those who were responsible for the attack were "KK", Twala, Big Five, Maobi, Malgas and other members of that gang. At the time they were in the company of two girls who lived at Block 7.
As the ANC Youth League and comrades from Block 7, the applicants and others met after the attack to discuss this and other attacks on their comrades. The discussions at that meeting led them to one Rebecca Selogilwe, who was the girlfriend to one of the gangsters. She had witnessed that the deceased had participating in the attack. The applicants enlisted her assistance in tracing the whereabouts of the deceased. She advised that when not in Khutsong, the deceased resided at a shack in "X" Section in Bekkersdal.
The following morning the applicants and about 30 to 35 comrades held a meeting to discuss the matter further., The group reached consensus. They agreed that the culprits should be found, brought back to Khutsong, and handed over to the community. The intention was that they should explain their actions to the community, and thereafter be handed over to the police.
The group hired two motor-vehicles and departed for Bekkersdal. Only about 17 of them were able to fit into the vehicles. On arrival, they parked the vehicles and went to report their presence to the local ANC leader. They then split into two groups and went in search of the culprits. One group went to the beginning of "X" Section, whilst the other went to the end of that Section.
The applicants and one Tebogo (now deceased) started searching at the beginning of "X" Section, asking residents if they knew where the deceased resided. As they entered the second street, Mokoena testified, it is likely that the gang members recognised them afar, because the two deceased emerged from another street and started fleeing. The applicants pursued them.
The deceased ran towards the crushers at Randfontein Estates near Cooke 2's shaft. Mokoena's testified that the group in pursuit tried to reassure the deceased that they were not there to fight and that they should stop, but all in vain. Once on the mine campus, the deceased were cornered.
Stephen van Rooyen tried to talk to "KK", but as he got close to "KK" the latter drew a firearm. He attempted to fire a shot, but the firearm wouldn't fire. At this point Stephen, Abram Maumakwe and Mokoena attacked "KK", whilst Masoba (Hendrick) van Rooyen, Gustaff Morupisi and the late Tebogo attacked "Bafino". The rest of the group of 17 had not reached the mine campus at this point.
The applicants picked up stones and threw these at the deceased. Stephen hit "KK" with a brick. They kicked him. "KK" then drew a knife. The fight continued, as they tried to disarm "KK". Mokoena drew his own knife and stabbed "KK" as he fought back. Stephen hit "KK" with an iron bar. Abram Maumakwe arrived as Mokoena started to stab "KK". He drew a knife and stabbed "KK". It was only when "KK" fell still that the fight ended.
Mokoena states that as he raised his head, he noticed that Hendrik van Rooyen, Gustaff Morupsi and Tebogo were standing where "Bafino" was lying. During the fight with "KK", he had not had the opportunity to observe their fight with "Bafino".
Mokoena confirmed that their mandate had been to find the deceased and take them back to Khutsong. His explanation for their actions was that they acted in self-defence as "KK" drew a firearm, then later, a knife.
Under cross-examination, he denied that the killing was an act of revenge, or that their actions were criminally motivated. He contended that they acted in their capacity as members of the ANC Youth League. His understanding was that Hendrik van Rooyen had reported to the ANC Youth League leadership that John Mokome had been attacked and the youth were taking action and proceeding to Bekkersdal to find the culprits.
His response with respect to the nexus between the killing and the political aims of his organization was that as an ANC Youth League member, the broad aim of youth was to combat crime and the community. The deceased, he contended, were part of gang of criminals.
One final aspect that Mokoena dealt with both in evidence in chief and under cross-examination was the reference in paragraph 11(a) and (b) of his application where he stated that the act was committed with the authority of the Khutsong ANC Youth League and Self Defence Unit. He goes on in paragraph (b) to cite Mr. Dan Ndzeku and Mr Oupa Ramokgoatedi as referees with respect to this aspect of their actions.
Mr Dan Ndzeku, he stated, was the President of the Khutsong ANC branch at the time. He is currently the Mayor of Greater Carltonville. Mr Oupa Ramokgoatedi was the President of the ANC Youth League Interim Executive Committee during that time.
Both local leaders submitted affidavits in which they denied giving an order to anyone to go and search for anybody and to kill them. Ndzeku attributes the applicants actions in killing the deceased to revenge,and states that there was no political motive that he was aware of. At the time, he was the General Secretary of the ANC for the Cartonville region, which included Khutsong.
Ramokgoatedi too states that to his knowledge, the murders the applicants committed were not politically motivated. He goes on to state that in fact the ANC refused to arrange for, and pay, for the applicants defence.
Mokoena's response was he was referring to the leaders as people who knew of the activities of the gang, and knew that the ANC Youth League members were victims of these attacks.
Mokoena denied Ndzeku's allegation that the applicants (with the exception of Hendrik) used to be members of the ANC Youth League, but at the time of the killing of the deceased, were part of a break-away group.
Mokoena confirmed that on Sunday the 8th September, the ANC Youth League was not present at the meeting where the decision to search for the deceased was taken. He did, however, speak to Ndzeku about the incident on Monday 9th September. Mokoena further pointed out that Hendrik had spoken to Gordon Cassius Mahuma who was the General Secretary of the ANC Youth League at the time of the incident. In this capacity he was an executive member of the Committee, and he worked with Hendrik who was the Organizing Secretary.
2. Masoba Khutwana Hendrik Van Rooyen
Applicant confirmed the three incidents relating to the background that led to the killing of "KK" and "Bafino" as testified by Mokoena. He recalled a minor altercation between Mokome. Big Five and Malgas at the party, just prior to the attack on Makome. Mokome had gone to talk to the girls who had taken in the company of Big Five and Malgas. The latter regarded the girls as their girlfriends, and told Mokome not to talk to their girls. What followed concerning the attack on Mokome conformed to Mokoena's account of the attack and the actions that followed thereon.
As a member of the Interim Committee of the ANC Youth League, Applicant was due to attend a meeting of the Youth League in Krugersdorp on Sunday the 8th September. When Gordon Mahuma arrived to fetch him that Sunday morning. He briefed Mahuma on the situation that had arisen overnight. He asked Mahuma to tender his apologies at the ANC Youth League meeting. Applicant informed the meeting of the 30 to 35 youth that he had briefed Mahuma and asked him to tender his apologies and explain the situation.
Hendrik was one of the six who pursued the fleeing culprits. He ultimately was part of the group that fought with "Bafino". At the mine campus, he testified, "Bafino" drew a knife. Applicant drew his own knife and stabbed "Bafino" a member of times during the fight. Tebego was present. He kicked the deceased. Morupisi also stabbed "Bafino".
On Monday the 9th September, they reported that matter to the General Secretary, Gordon Mahuma. Under cross examination Hendrik confirmed that in Mahuma's opinion they had committed an offence. He testified that he agreed with Mahuma because they had been mandated to apprehend the culprits, not kill then. In terms of the policy of the ANC, members were not allowed to kill, he admitted. This is why he submits that the killing was a mistake, he stated.
Hendrick confirmed that either Ndzeku nor Ramokgoatedi gave them orders to pursue and kill the deceased. The decision to pursue them was taken by the comrades of Block 7 at that Sunday morning meeting.
His explanation as to the political motive behind the killing was that this was not the first time this gang had done these things. This and the fact that they had a firearm influenced the fact of the killing, he stated.
3. Abram Didi Maumakwe
He confirmed the facts as set out by the previous applicants, adding that he stabbed and kicked "KK". He stabbed him with a fish knife.
Under cross examination he stated that they did not kill the deceased because the deceased had attacked their comrades, but because of their general criminal activities in the township. He admitted that the political leadership had not given them any orders, stating that the actions taken were as a result of the discussion by the youth and the resolution taken that some should go to Bekkersdal to search for and return with the deceased. The intention in bringing the culprits before the community was, he testified, so that the parents, the community, should know that these were the culprits who were responsible for the criminal acts, and so that these culprits might account to the community for their deeds.
4. Stephen Lebohang van Rooyen
Applicant confirmed the evidence given by the previous applicants.
Applicant confirmed that he hit "KK" with an iron bar, and only stopped hitting him when "KK" was no longer in a position to fight back. "KK"'s firearm and knife were picked up and taken by Mokoena. Applicant saw Mokoena use both his own knife and that of the deceased. The deceased died of multiple injuries.
The political motive was, Applicant testified, that the ANC Youth League had come to an agreement about expunging criminal activity from the community. The decision to find the culprits thus conformed to that political motive.
5. Gustaff Matshogo Morupisi
Morupisi confirmed the evidence of the previous applicants.
Applicant kicked and stabbed "Bafino". He was armed with his own knife. They armed, he stated, in the case the culprits fought back. They were going to defend themselves if attacked. Had the deceased not drawn their arms, they would simply have been apprehended and taken back to Khutsong. The political motive, he stated, was to stop crime. They wanted peace in their township. They wanted, he stated, to be able to run the affairs of the ANC Youth League in an acceptable manner.
6. Gordon Ramogare Mahuma
This witness was called by the applicants. He testified that at the time of this incident, he was the Secretary of the ANC Youth League, which operated as an interim structure, pending the formal launch.
Mahuma confirmed that the applicants did not belong to a break-away group, and confirmed that the criminal gangs were active in Khutsong. He had been harassed by the same criminal element.
On the 8th September he had gone to Hendrik to arrange going to the ANC Youth League meeting in Krugersdorp. Hendrik informed him that he couldn't go because of the issue that had arisen overnight, stating that he, Hendrik, wanted to go and fetch the criminals and bring them back to the community.
This information Mahuma passed on to his Committee members, who responded that they wanted to go to the Krugersdorp meeting and would hear from Hendrik when they returned. After the incident Hendrik did not give a report, stating that the criminals had retailed and that the applicants had been forced to defend themselves.
The applicants political motivation, he stated, lay in the fact that these criminal were interfering with comrades who were trying to bring law and order to the community. Fighting crime and criminal elements was part of the ANC Youth League's anti-crime campaign.
Mahuma conceded under cross-examination that the group of 17 went to Bekkersdal without the authority of the ANC Youth League. During questioning by the Committee, he further admitted that at a meeting held subsequent to the killing of the deceased, the ANC Youth League took the decision that this act was not politically motivated. This confirmed what Ndzeku and Ramokgoatedi had stated in their affidavits.
ASSESSMENT OF THE EVIDENCE
At the time of the incident leading to the deaths of the deceased, all the applicants were aged between 16 years and 21 years of age. The evidence suggests that they were resident in Block 7, and were active members of the local Self Defence Unit in Block 7, and members and supporters of the ANC Youth League in Khutsong.
The applicants testimony concerning their membership of the ANC Youth League and that of the local Self-Defence Unit, though controverted in the untested affidavit of Daniel Ndzeku, is evidence that this Committee finds plausible and acceptable, given the circumstances prevailing at Khutsong and in the country at the time.
The applicants, in their evidence, napped out to the Committee, the background of activity that had been perpetrated on the residents of Khutsong. In particular they testified that it was their subjective perception that the members of the ANC Youth League, i.e. their comrades, were the targets of the criminal gangs. They drew the attention of the Committee to the particular activities of the group or gang that included the deceased.
The Committee accepts the historical background that led to the decision of the 8th September 1991, i.e. to find and apprehend the culprits. The evidence was not challenged by the victims, essentially because these facts were common cause. The victims was confined to the stated political motive and political objective of the applicants in acting as they did.
In attempting to understand the possible motive and objective of the applicants, the role of the police in the activities of the criminal element in Khutsong, no real evidence was forthcoming from the applicants on this point. At best, the applicants averred that it was their perception that the police were deliberately being inactive.
Mokoena, in his testimony, stated that he believed that since the criminals were known to the police, he surmised that there was a link between the two parties. The applicants major bone of contention appears to be that though the crimes that were committed were reported to the police, the police did not follow up these reports with a proper investigation, leading to the arrest of the culprits.
The Committee is thus left with determining whether, on the evidence as it stands, the acts of the applicants qualify as being in accordance with a stated political motive and or objective, as required by the Act.
The applicants admit that the political organization that they were members of did not order, authorise or instruct them to apprehend the deceased and or bring them back to Khutsong to explain themselves to the residents. This decision was taken at a meeting of the youth who resided at Block 7, which youth happened to be members and or supporters of the ANC Youth League and Self Defence Unit of Block 7.
This decision was communicated to Gordon Mahuma by Hendrik, whose testimony was that he then expected Mahuma to communicate this to the other members of the executive of the ANC Youth League. At no stage was it suggested by the applicants that this report to Mahuma was tantamount to seeking the blessing of the ANC Youth League for the actions that followed.
The impression the Committee is left with is that the report to Mahuma was given as part of Hendrik's apology to the local executive of the ANC Youth League for his failure to attend the general meeting of the ANC Youth League in Krugersdorp. This meeting had been scheduled to take place on Sunday, the 8th September.
The applicants further confirmed in their oral testimony that the local leadership of the ANC had not authorised or ordered or instructed them to embark on any of the actions that led to the killing of the deceased. Given this fact, the contention of the victims is that the actions of the applicants stemmed from a desire to avenge the attack on Mokome, a close friend and comrade of the applicants. This, the victims argue, firmly places the acts in the category of criminal acts, not politically motivated acts.
There is merit in the victims argument. The speed with which the applicants reacted is indicative of a retaliation rather than an accounting to the residents. The decision to find the deceased was essentially taken by the smaller group of Mokome's comrades on the night that Mokome was attacked. The larger group who met on Sunday morning simply appears to have endorsed this decision to find the deceased.
The applicants themselves concede that the killing should not have taken place. The killing did not conform to the mandate they had been given by the group of 30 to 35 youth in Khutsong, to apprehend and return with the deceased.
The applicants knew that a meeting of the ANC Youth League had been scheduled to take place on Sunday. They knew exactly where to find their leaders to obtain a mandate as to the best cause of action to take. If, as they argued, this action fitted squarely into the anti-crime campaign that the ANC Youth League had decided to focus on, they would have consulted the executive committee of the ANC Youth League, at the very least. By the end of the day, they would have had the opportunity to discuss the criminal activity that plagued their township, and then known that they were acting with authority.
There is the evidence of Gordon Mahuma, who testified that at a subsequent meeting of the ANC Youth League, the members concluded that the killing had not been politically motivated. This was confirmed in the affidavits of both Ndzeku and Ramokgoatedi.
With regard to the fact of the killing, applicants explanation is essentially that things got out of hand, once "KK" drew a firearm. "Bafino" too pulled out a knife. The fact of the matter, however, is that the applicants themselves were armed with knives. Their explanation for this is that they wanted to have the capacity to defend themselves should problems arise.
The Committee understands this, but considers that the applicants should have known that bearing weapons of any kind would exacerbate not ameliorate the situation.
The actions of the applicants in this instance conflict with their stated political motivation and objectives. They explained that the anti-crime campaign sought to, amongst other things, promote free political activity and create a political climate where criminals are apprehended and handed over to the police. The idea was to promote peace, by expunging criminal activity from the community. They wanted to be able to run the affairs of the ANC Youth League in an acceptable manner.
In a nutshell, the actions of the 7th and 8th September are in direct conflict with these stated objectives and motivations. This fact was recognized by their peers and comrades in their political organization. The victims too have persuasively argued this point. Further, there is no evidence of any third force activity that might have been fostered by the police, nor is there any evidence of any political rivalry that may have led to the action taken against the deceased.
CONCLUSION
To succeed in their application, the applicants must meet the criteria set out in Section 20 of the Act.
Section 20 (1) (b) of the Act, requires that the act applied for must be associated with a political objective. On the basis of the evidence advanced by the applicants, this requirements has not been met. The promotion of law and order, and the prevention of criminal activities is not the preserve of any one political organization. It is therefore difficult for the Committee to view such as an activity that the applicants engaged in as part of a political activity that conforms to the requirements of the Act.
In terms of Section 20 (2) (a) such act should have been committed on behalf of or in support of a publicly known political organization or liberation movement, bona fide in furtherance of a political struggle waged by such organization or movement against the State or any former state or another publicly known organization or liberation movement. Much as the Committee accepts that the applicants were members and or supporters of the ANC Youth League, it does not consider the acts applied for to have been committed bona fide, and/or in the furtherance of a political struggle waged by the ANC or its Youth League.
The Committee does not consider that the applicants acted within the scope of their express or implied authority directed against the State, as required by Section 20 (2) (d) of the Act; nor in terms of subsection (f) which requires that the applicants should have held a reasonable belief that they were acting within the course and scope of their duties or within the scope of their organizations express or implied authority; nor did they act as persons who associated themselves with any act or omission committed for the purposes referred to in paragraphs (a), (b), (c), (d), (e), and (f) of Section 20.
The Committee finds that there was no political motive, nor was there a political uprising, disturbance or event that prompted the actions of the applicants. The act applied for was not directed as a political opponent, but against individuals for reasons that do not meet the requirements of the Act.
The applicants sought to avenge the attacks on their comrades. The acts applied for thus amount to acts of retaliation that were unrelated to the political struggle and objectives of the political organization of the applicants.
Finally, on the matter of full disclosure, the Committee finds that the applicants did not make full disclosure of the relevant facts. In fact, in their application forms, applicants sought to mislead the Committee by using the leadership of the local ANC as their references. The decision of the ANC Youth League on the non-political nature of the applicants actions was solicited from the witness Gordon Mahuma. Much seems to have been left unsaid.
In the premises, applicants do not qualify for amnesty. Amnesty is
DENIED: , therefore, in respect of the killing of Godfrey "KK" Nqaqu and that of Boetie "Bafino" Sedisa.
SIGNED ON THE OF THE 1998.
JUDGE H MALL
ADV. C DE JAGER
ADV. L GCABASHE
