DECISION
The applicant applies for amnesty in respect of one incident which occurred in the Barberton and Nelspruit district of Mpumalanga and five incidents which occurred in the Ndwedwe district of Kwa Zulu-Natal.
During 1990, the applicant, who was serving a prison sentence at the Barberton town prison, became friendly with a fellow prisoner, one Elijah Mhlaba, who was a member of the Nyanda organisation. Mhlaba informed him that he was working hand-in-hand with members of the Afrikaner Weerstands Beweging (the AWB).
He advised the applicant to inform the warders that he was a member of the Inkatha Freedom Party (the IFP) because this would result in him obtaining many privileges as a prisoner as some of the warders were supporters of the (AWB). He did so and received various privileges, including assisting the warders at the shooting range. While working at the shooting range he was trained by some warders in the use of firearms and hand grenades. He was later approached by a warder who informed him that they must go on a mission. The mission was to shoot Mr Matthews Phosa, a prominent African National Congress (ANC) politician. He was told that they would be rewarded for going on the mission. The nature of the reward was not specified but the applicant believed that it would be the payment of a sum of money. He, the said Mhlaba and two other prisoners, Mhlango and Qina, travelled with a warder, Sgt. Venter, from Barberton to Nelspruit. They had firearms in the boot of the car. When a Nelspruit, Venter parked the car near the post office and alighted and went to speak to some khaki-clad persons whom the applicant took to members of the AWB. The applicant and other prisoners remained in the car. Sgt. Venter returned to the vehicle and informed them that the mission had been cancelled. They then returned to Barberton.
The applicant was released from Barberton prison during March 1993. He returned to his home district, the Ntembisweni area in the district of Greytown. On arrival he discovered that his family was no longer living there. He was informed by the local IFP leader, Mr Themba Nyoka, that his family had moved to the Ndwedwe district. He then proceeded to be Ndwedwe district.
His brother-in-law introduced him to a Mr Zondi, who was the chairperson of the IFP in the Muzokhulayo area, and the applicant became a member of the IFP. Mr Zondi in turn introduced him to Mr Dingizwe Mfayela who was the leader of the IFP in the Ndwedwe district. At that time there was unrest in the Ndwedwe area, there being violent conflict between members of the ANC and the IFP. The said Mfayela employed the applicant as his bodyguard and arranged for him to be issued with a Kwa Zula Police firearm and a police appointment certificate.
On or about 27 November 1993 the applicant accompanied Mr Mfayela to a memorial service which was organised by the IFP. After the service Mfayela, the applicant, a teacher by the name of Enoch Cele and two other persons went to a room where Enoch Cele was questioned about the whereabouts of certain firearms which had been earlier handed to him. Mfayela and the applicant severely assaulted the said Cele and rendered him unconscious. Mfayela and the applicant then gave the chairlady of the IFP in the Montebela area a lift home. On the way she stated that ANC supporters in the area should be eliminated as they were causing problems.
She pointed out certain houses which should be attacked. After dropping her off and while driving along the main road in the Montobela area they saw a group of four or five young boys next to the road. Mfayela stopped the car and instructed the applicant to shoot them. The applicant fired a number of shots at them with a 9mm pistol. The boys ran away. The applicant does not know whether any of them were killed or injured. The applicant estimated the ages of the boys to be approximately ten years.
After the shooting they proceeded towards the Monalisa area. They came across another group of six or seven boys, who according to the applicant, were slightly older than the previous group. Mfayela stopped the vehicle and ordered the applicant to shoot them. The applicant obeyed and fired several shots at them. He does not know whether any of them were injured or killed as a result of the shooting. The applicant did not know the political affiliation of the boys he shot at. He assumed that they were ANC supporters as they were in an ANC dominated area and Mfayela stated that they were not supporters of the IFP as IFP boys do not loiter next to the road. The applicant stated that the only reason he shot at the boys was because he was ordered to d so by Mr Mfayela. He stated that he had no alternative but to shoot as it would be fatal to oppose Mfayela and not obey his orders.
On or about 29 November 1993 Dingizwe Mfayela issued an instruction that a taxi owner who operated in the Sonkombo and other areas of the Ndwedwe district must be killed. The targeted taxi owner was a Mr Gumede and the reason given for his elimination was the he transported comrades (supporters of the ANC). Mfayela pointed out the taxi owner’s house to the applicant and told him that after he killed him he must take the taxi as it will be used in attacks on ANC supporters. The applicant together with Nsimbi Sishi, Nsini Ndokweni and Zeblon Mbambo then proceed to Mr Gumede's homestead. The applicant was armed with a 9mm pistol and the other three with automatic rifles. The owner was not present then they arrived at the homestead. They waited.
A taxi driver but Mr Gumede was not in it. They got into the taxi and the applicant drove it and parked it in the yard. Thereafter another taxi arrived. Mr Gumede and an unknown lady were in it. Nsini Ndokweni shot Mr Gumede. The lady was told to get out of the vehicle. The applicant then got into the drivers seat and reversed the taxi and in the process managed to overturn it. They all then ran away. Mr Gumede was injured as a result of the shooting. He died some time later of natural causes.
Thereafter, on a date the applicant cannot remember, but between 30 November 1993 and 2 December 1993, a number of people gathered at Mr Mfayela's house. Mr Mfayela and an induna from Wosiyana planned an attack on the Sonkombo area. The attackers left in a number of vehicles and proceeded to Sonkombo. The applicant was in a vehicle together with one Mdu Sithole, a policeman known as Sabatha and a number of other persons who were unknown to the applicant. His group shot and killed a man who was walking on the main road in Sokombo. The shot was fired by one of the men who the applicant did not know. The above is a summary of the evidence given by the applicant relating to the incidents in respect of which he applies for amnesty. The applicant was the only witness to testify before the Committee. He was subjected to cross-examination by the legal representatives of various implicated persons as well as the legal representatives of Mr Phosa.
While it is correct to say that the applicant was not a satisfactorily witness in all respects (for example, his evidence that he never faced a disciplinary enquiry in Barberton prison with regard to possession of dagga is clearly untruthful), we are of the view that he has made a full disclosure of all relevant facts relating to the incidents for which he applies for amnesty. As stated above, he was the only person to testify before the Committee and his evidence is therefore uncontroverted.
It was also placed on record by Mr Mpshe, the Evidence Leader, that Mrs Gumede, the widow of Mr Gumede, confirms that the applicant's version of events that occurred at her homestead is entirely correct. There is further no apparent reason why the applicant should present false testimony. He has not been arrested, charged or convicted in respect of any of the incidents and it is his evidence that has brought these incidents to light.
We are also of the view that the applicant's version is not so improbable that it may be rejected as being false. Little is known of the conspiracy to assassinate Mr Phosa, but, taking into account the high political profile of the intended victim, the only reasonable inference that can be drawn is that the conspiracy had a political objective. The applicant was at that stage neither a member or a supporter of the IFP but only made out to be so in order to secure certain privileges for himself as a prisoner. He was, however, manipulated and used by persons in authority over him and who were involved in the conspiracy. The applicant stated that the reason why he went to Nelspruit on the day in question was because he was instructed to do so and that he would have gone even if no mention of a reward for himself was made. He stated further that he feared that he may have been killed if he refused to obey the instruction. We are, in the circumstances, of the opinion that the applicant was not part of the conspiracy merely for personal gain but that he was being used by the conspirators to effect their plan and as such was an agent of the conspirators as contemplated in section 20 (3) (e) of the Promotion of National Unity and Reconciliation Act, No 34 of 1995 (the Act). We are accordingly of the view that his involvement in the conspiracy was an act associated with a political objective committed in the course of the conflicts of the past.
The applicant was a member of the IFP when he committed the offences mentioned by himself in the Ndwedwe district. He was, in respect of each offence, acting under the direct orders and instructions of Mr Dingizwe Mafayela, the leader of the IFP in that district. It is apparent from the evidence of the applicant that each of these offences was associated with the conflict that was then being waged between the IFP and the ANC in that area and that they were not purely criminal acts for self-gain.
It is true that the applicant received payments from Mr Mafayela, but such payments were not made as a reward for each offence committed by the applicant. He acted as Mr Mfayela's body guard and was on occasion paid an amount of money in lieu of a salary. The applicant was also unaware of an amount of R300.00 being stolen from Mr Gumede's vehicle. We are therefore satisfied that the offences committed by the applicant in the Ndwedwe district were also acts associated with a political objective as contemplated by section 20 (1) (b) of the Act.
In the result, the application succeeds and the applicant is
GRANTED: amnesty in respect of
(i) his involvement in the conspiracy at Barbeton and Nelspruit during 1990 to kill Mr Matthews Phosa;
(ii) his involvement in the assault upon Mr Enoch Cele in the Ndwedwe district on or about 27 November 1993;
(iii) his shooting at a group of boys in the Montobela area n or about 27 November 1993;
(iv) his shooting at a group of boys/young men at or near the Monalisa area on or about 27 November 1993;
(v) the attempted murder of Mr Gumede and the robbery of Mr Gumede’s motor vehicle in the Sonkombo area on or about 29 November 1993; and
(vi) the murder of an unknown man in the Sokombo area during the period 30 November 1993 to 2 December 1993.
(vii) the unlawful possession of firearms and ammunition in relation to the incidents referred to in (I) to (vi).
We are of the opinion that Enoch Cele, who resides in the Ndwedwe district, is a victim in this matter as contemplated in section 22 of the Act and this matter is referred to the Committee on Reparation and Rehabilitation for consideration in terms of Section 26 of the Act.
DATED AT 15 THIS DAY OF DECEMBER 1998.
JUDGE S MILLER
MR JB SIBONYANE
MR I LAX
