DECISION
This is an application in terms of section 18 of the Promotion of National Unity and Reconciliation Act 34 of 1995 (the Act).
The applicant applies for amnesty in respect of his conviction, on 13 June 1995, at Secunda, for the murder of Mshengu Phungwayo at Kwadela, Davel, on 29 May 1993. He was sentenced to twelve years imprisonment which he is currently serving at Barberton Prison.
Notices in terms of section 19(4) had been served on the
deceased's family and Mr Trevor Phungwayo, a cousin of the
deceased, testified on their behalf. The Applicant who was
represented by Mr D Claassen testified in support of his
application. He confirmed his application and the affidavit which
forms part of the papers.
We do not traverse the evidence of the applicant in detail.
Suffice it to say he was not an impressive witness. His
testimony was fraught with numerous inconsistencies and
contradictions. It also differed in material respects with the
allegations or versions contained in his applications and the affidavit referred to above.
When asked to explain these numerous inconsistencies he conceded that he had lied in his applications, indemnity application, affidavit to the TRC's investigation unit, in court during his trial and in a statement which he made to the police during their investigation of the crime for which he was later convicted.
One such instance of this kind of problem with his evidence is that in his application he refers to the incident in which he shot the deceased and the reasons why he did so:
At page 3 of the papers, paragraph 10(b), he says" I wanted my party to be the one who take over the election of the provincial by eliminating some of the members of the opposition party." At page 5 of the papers, paragraph 11, he says: "the motive was that my organisation win the April 1994 elections by killing prominent members of the ANC in my area."
At page 8 of the papers, paragraph 9(a)(iv), he says: "I shot dead Mr Mshengu Phungwayo on self defence after he attempted to shoot me."
At page 10 of the papers, paragraph 10(b), he says: "The deceased was killed due to the political motive that existed at that stage as I knew that if Mr Phungwayo can be eliminated, our party will gain recognition (and more supporters) as he was the only stumbling block towards achieving our political goals."
At page 28 and 29 of the papers, paragraph 3, he described a different version of the incident and in paragraph 5 implies that the reason he killed the deceased was his refusal to end the fight between the IFP and the ANC.
However in his viva voce evidence before us he stated that he wanted to kill the deceased inter alia, so as to intimidate ANC people into joining the IFP, because the deceased was brave and lead assaults and attacks on IFP supporters, because the deceased had told him he had made a vow to kill him (the applicant) and he was scared of him.
The applicant testified that he had taken the decision to kill the deceased on his own and that he wanted to hide his own participation in the commission of the crime so as "not to bring the IFP into disrepute". How then would he be able to achieve his stated purpose of intimidating ANC supporters and thereby increasing the IFP's membership.
It is clear to us that this and other instances of non-disclosure are aimed inter alia, at establishing a political context to support the applicant's assertion that his acts were associated with a political objective.
In the result we are not satisfied that the applicant has complied with section 20(1) of the Act and accordingly the application is refused.
DATED AT NELSPRUIT THIS 4TH DAY OF FEBRUARY 1999
JUDGE S KHAMPEPE
ADV F BOSMAN
MR I LAX
