DECISION
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act").
The applicants were convicted and sentenced in the then Supreme Court of South Africa, Durban and Coast Local Division, to twenty (20) years imprisonment for the murder on 7th November 1990 at or near Zuba Location, Magabheni, Umkomaas, of Fanana Sixtus Mkhize. It is in respect of this conviction and sentence that they apply for amnesty.
The applicants were at all material times supporters of the African National Congress ("ANC") and its internal predecessor the United Democratic Front ("UDF"). They testified that they had been politically active in the UDF since 1985 and that they had joined the ANC once it became unbanned in early 1990. Although they did not go for training due to the intensity of the political violence in their area they said they had been selected to join the self-defence unit in their area early in 1990. This was a marginally more formalised version of the groups of youth who had previously defended the area from attacks by Inkatha aligned people from neighbouring areas.
The applicants testified that the deceased had been a prominent Inkatha organiser and leader and businessperson who had previously lived in their area but who had left when he joined Inkatha. It was alleged that the deceased had led attacks on their community by Inkatha supporters and that such attackers were often accompanied and assisted by KwaZulu police. It was alleged that during such attacks people were attacked and houses burned down. The applicants said that the deceased had shot a number of people in the area, including, one Sjokolo Cele, a co-perpetrator (since deceased) in the incident forming the subject matter of this application.
The applicants further testified that there had been a number of prior attempts at killing the deceased, but that these had failed. They said that it had been agreed that they should, if the opportunity arose, kill the deceased because he was leading the violence against the ANC dominated area where they lived. It was thought that if the deceased "could be removed" the "violence would subside".
On the day in question Mbutho discovered that the deceased was visiting his mother who lived in the area. He had travelled to the area on foot rather than in his vehicle and thus appeared to more vulnerable than usual. Mbutho then called Msani. They both took their firearms and Mbutho also had a tomahawk. Hlongwa was handed Mbutho's home made shotgun, as he did not have a weapon. Cele was armed with a bush knife. A fifth person, who was never apprehended, one Mabunu Hlongwa was also present and armed with a firearm.
After a short discussion the five of them proceeded to Mkhize's home. They found him sitting outside drinking tea. Msani shot him once in the vicinity of the stomach. He grabbed for the gun and they wrestled over it. While they were doing so, Cele hacked at the deceased's hands and the Hlongwa's shot him. Mbutho hacked at him with the tomahawk. The five of them ran away when it became clear that some Inkatha supporters and police were coming to assist the deceased. The applicants accept that they caused the death of Mkhize who died in hospital.
It is clear that the actions of the applicants took place within the context of the ongoing political violence between supporters of the ANC and those of Inkatha. Their actions were aimed at stopping the deceased from continuing with his activities against their community and thereby causing the violence to subside. It is striking that the attack was only directed at the deceased and not upon the members of his family who were also present at the scene. This tends to reinforce the political focus of the attack.
Although there appeared to be a certain reticence on the part of the applicants to fully and frankly canvass a few ancillary aspects in their evidence we are satisfied that they have made full disclosure of all material facts. The applicants did not act out of ill will, spite or malice or for personal gain.
Having considered the matter the Committee is of the view that the applicants have satisfied the requirements of the Act and are hereby
GRANTED: amnesty for the murder of Fanana Sixtus Mkhize on 7th November 1990 at or near Zuba Location, Magabheni, Umkomaas.
The relatives or dependants of the late Fanana Sixtus Mkhize are found to be victims and are accordingly referred to the Reparation and Rehabilitation Committee in terms of Section 22(1) of the Act:
SIGNED AT DURBAN ON THIS 4 DAY OF DECEMBER 1998.
JUDGE S MILLER
ILAN LAX,
JB SIBANYONI
