DECISION
The applicant is BONGANI CHRISTOPHER KHUMALO, an adult male of 338B, Zola 3, Soweto, Gauteng, who was arraigned before the Witwatersrand Division of the then Supreme Court of South Africa under Case No. 85/96 on the following fourteen (14) counts relating to incidents at Zola 3, Soweto.
COUNTS: DESCRIPTION
1 - 3 Attempted murder of Mukhacani Samson Ndobe, Irish Khanyile and Nhlanhla Godfrey Ngcobo on the 31st of July 1992
4 Unlawful possession of an explosive, namely a hand grenade on the 31st of July 1992
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5 Murder of Joseph Mazibuko on the 2nd of October 1992
6 - 10 Attempted murder of Solomon Moloi, Siphya Mazibuko, Elizabeth Titi Mazibuko, Selina Mamakhe Moloi and Mngasho James Mazibuko on the 2nd of October 1992
11 Unlawful possession of an explosive, namely a hand grenade on the 2nd of October 1992
12 Unlawful possession of a Daisy Air Pistol on the 2nd of October 1992
13 Assault on Collin Sqiro Zuma on the 3rd of October 1992.
14 Unlawful possession of an explosive, namely a hand grenade on the 3rd of October 1992
The applicant was convicted on all counts, except for counts 6, 7, 9 and 10.
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At the commencement of the application for amnesty, an application for amendment was made on behalf of the applicant to incorporate the following offences in the amnesty application :
a) a shooting incident involving the police at Merinohoek, Queenstown, Eastern Cape on the 17th of November 1993 and
b) unlawful possession of arms and ammunition at the place referred to in paragraph (a), on the 4th of February 1994.
The applicant completed the application form on his own and without the assistance of a legal representative. In his application he does refer to Merinohoek and a police officer being injured as well as to a prosecution at Queenstown Regional Court.
It is apparent from the application form that the applicant intended to apply for amnesty for incidents which took place both at Queenstown in the Eastern Cape and Soweto in the Gauteng Province. In the circumstances we granted the application for the amendment.
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Accordingly, the application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 ("the Act") encompasses both the abovementioned convictions in relation to the incidents in Gauteng as well as the offences committed in the Eastern Cape.
The applicant's testimony was to the following effect :
He was an ANC member who returned from exile in 1992 when he experienced harassment from the police. Although he was residing at Zola, he participated in the Self Defence Unit (SDU) in Meadowlands where the community was under more immediate threat of attacks.
He testified about an incident where he was involved in a confrontation with the police. When the police confronted him he pulled a hand grenade and threw it at them. He is not sure whether any person was injured. He was arrested on the 31st of October 1992. He was tried for the incident in the High Court in Johannesburg from October 1992 until the case was finalized in May 1993 and he was sentenced to 30 years imprisonment.
5
During 1993 he took ill and was admitted to the Chris Hani-Baragwanath Hospital. He escaped from the hospital and fled to Merinohoek informal settlement where he established an SDU structure. There was a confrontation at Merinohoek between Queenstown Police and the SDU. As an SDU commander he gave an order that the police should be shot at. He also took part in the shooting when the police returned with reinforcements to Merinohoek. The applicant later fled to Port Elizabeth. He was eventually arrested at the then border dividing Ciskei and Transkei.
He was arraigned before the Queenstown Court and charged with attempted murder, possession of fire arms and ammunition and possession of explosives. He was sentenced to 8 years imprisonment.
Regarding the incident in count 5 in which Joseph Mazibuko was killed, the applicant testified that on the evening in question, he and the other SDU members were patrolling. He entered the Mazibuko's house to request them to turn off the lights because it made the SDU easily detectable. An argument ensued between the applicant and Mr. Solomon Moloi who attempted to disarm him of the hand grenade in his possession by stabbing him on his
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hand with a knife. After a struggle, the safety pin was accidentally removed from the hand grenade. The applicant reported this to his assailant and managed to get loose and moved out of the house. As he was leaving the house he threw back the hand grenade which exploded and killed Mr. Mazibuko.
Mr. Moloi also testified and contradicted the applicant's testimony relating to the incident in which Mr. Mazibuko was killed. He stated that on the day in question, applicant came, in fact, to kill him. He said that he and the applicant had a quarrel during 1980 or 1985 when he confronted the applicant about people being killed by burning.
On this particular evening the applicant sent children and instructed that lights should be switched off because there was a "dog" (referring to Mr. Moloi) which he wanted to kill. After a short while the applicant entered the house armed with a gun and a hand grenade. Mr. Moloi opened a drawer, took out a knife and started stabbing the applicant on his hand until he bled. The applicant screamed and said the pin was released and that everyone was in danger. As the applicant went out he threw the hand grenade.
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The Committee considered Mr. Moloi's evidence and finds that it does not disturb the applicant's version. It is clear that the applicant went to the house in question to deal with the issue of switching off the lights. Mr. Moloi confirmed that this was the issue of discussion when the applicant entered the house. It is likely that Mr. Moloi wrongly assumed that it had something to do with an old argument, hence his view that the applicant actually came to attack him.
It is common cause that the applicant was a commander in the SDU which was formed in Meadowlands, Soweto, and the one formed at Merinohoek in Queenstown. He was a member of Umkhonto weSizwe (MK), the military wing of the African National Congress (ANC). Among others, his duties were to establish SDU's and militarily train people for self defence in communities engulfed by violence. For the rationale in forming SDU's, the committee was referred to a document entitled "For the Sake of Our Lives" contained in the ANC's submission.
The illegal possession of fire arms, ammunition and hand grenades referred to above constitutes an act associated with a political objective. The applicant possessed them in his capacity as a member of the SDU. All of the incidents referred to above,
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resulted from SDU activities. Although no specific orders were issued for what the applicant did, it is our view that his actions fall within the ambit set out in the aforesaid ANC document and are acts associated with a political objective. The applicant has made full disclosure of all facts relevant to his application and his application accordingly complies with the requirements of the Promotion of National Unity and Reconciliation Act No. 34 of 1995.
On the evidence as a whole, we are satisfied that he is entitled to amnesty both for the offences for which he was arraigned and convicted by the Johannesburg High as well as the Queenstown High Court as set out above.
We are of the opinion that the persons mentioned in Annexure "A" hereto are victims in relation to the offences in respect whereof amnesty is hereby
GRANTED: and refer the matter to the Committee on Reparation and Rehabilitation for its consideration in terms of Section 26 of the Act.
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SIGNED ON THE 16 DAY OF NOVEMBER 1998.
DENZIL POTGIETER, A.J.
ADV. LEAH GCABASHE
MR. JB SIBANYONI
ANNEXURE A
1. Mhukhacani Samson Ndobe
2. Colleen Zuma
3. Sophia Antie Mazibuko
4. Mangaliso James Mazibuko
5. Elizabeth Titi Mazibuko
6. Mhlanhla Godfrey Ngcobo
7. Mrs. Ngcobo
8. Selina Mamakhe Moloi
9. Sergeant Prins
10. Warrant Officer Nyawula
11. Solomon Moloi
12. Irish Khanyile
13. The next of kin of the late Joseph Mazibuko
INFORMATION TO BE SUPPLIED WITH DECISIONS
