DECISION
Alfred Ndlovu ( the 1st Applicant), John Mbunyana Sithole (the 2nd Applicant), Elias Mbatha (the 3rd Applicant) and Mlandelwa Mpungosi (the 4th Applicant) were at all times relevant hereto members of the Inkatha Freedom Party (the IFP).
They all apply for amnesty in respect of murder and unlawful possession of firearms and ammunition. The incident which gives rise to these applications occurred on Saturday 12 February 1994 at an informal settlement at Zevenfontein in the Randburg municipal area. During the late afternoon of that day two groups of people, one consisting of supporters of the African National Congress (the ANC) and the other consisting if IFP supporters confronted each other at or near the sports field in the informal settlement. Shot were fired and stones were thrown and the ANC group, which was the larger of the two groups, was put to flight and its members were chased by members of the IFP group. Four persons were killed and seven persons were seriously injured at the in-formal settlement that day. All of the deceased persons had bullet wounds. Three of the deceased persons and all seven of the injured persons were members of the ANC group. The political affiliation of the other deceased person namely, John Kidibone Mogale, is unknown as he was not a resident of the informal settlement. However, the evidence of the 1st Applicant confirms that he was killed by members of the IFP group.
The Applicants were all charged with four counts of murder and seven counts of attempted murder as well as with counts relating to the unlawful possession of firearms and ammunition. They were all convicted and sentenced in respect of three counts of murder, six counts of attempted murder and counts relating to the unlawful possession of firearms and ammunition.
All the applicants as well as two of the victims, namely Sindisile Wilford Dastile and Sipho Bhizana, testified at the hearing in this matter. It is apparent from the evidence that the incident which occurred on 12 February 1994 was the first instance of violent conflict between the ANC and IFP communities at the Zevenfontein informal settlement.
Prior to that all problems and differences between the two communities were peacefully settled through discussion and negotiation by their leaders. It was a fragile peace that was maintained and it became more brittle with the approach of the first democratic elections. Matters such as the allocation of new sites in the settlement and the tearing down of ANC election posters increased tension between the two communities.
According to Sindisile Dastile (who was one of the leaders of the ANC community) it was an incident involving the 4th Applicant which occurred at a local shebeen during the early afternoon of 12 February 1994 which raised their supporters of the ANC and caused them to gather together. He was informed that the fourth Applicant accused the shebeen keeper of refusing to serve liquor to IFP supporters and that the 4th Applicant acted in an abusive manner by drinking other peoples' drinks on peoples' heads.
He stated that leaders of the ANC community then spoke with the second applicant, who held a leadership position in the IFP community, it was agreed that they would meet later with the view to resolving the problem after they had spoken to their respective supporters. It was to this agreed meeting that they were going when the violence broke out. He testified that the ANC leaders, led by his brother, Mshicileli Dastile, were unarmed and were walking ahead of the ANC group with the intention to discuss the problem with the IFP leadership when, without any prior warning, they were shot at by members of the group. Their members, who were only armed with sticks and kieries, threw stones at the IFP group in an endeavour to protect themselves. Their retaliation was ineffective and they were forced to retreat.
The 4th Applicant denied that he was involved in a fracas at the sheebeen on the day in question. Each of the Applicants testified that they were present and were part of the IFP group when the violence broke out.
The 2nd, 3rd and 4th Applicants all stated that they were armed with firearms. The 1st applicant stated that he did not have a firearm during the course of the conflict but only handled a fellow IFP member's handgun after the event. The effect of the applicants' evidence is that the ANC group attacked them and that the first shots were fired by members of the ANC group. They contend that the IFP group only returned fire in defence of themselves.
Section 20(1) of the Promotion of National Unity and Reconciliation Act, No 34 of 1995 (the Act) provides that the Amnesty Committee shall grant amnesty in respect of an act or offence if it is satisfied, inter alia, that the act or offence is an act associated with a political objective committed in the course of the conflicts of the past and that the applicant has made a full disclosure of all relevant facts.
It is clear to us from the evidence that the violence which occurred at the Zevenfontein informal settlement on 12 February 1994 occurred within a political context. The mere fact that there was a confrontation between a group of IFP supporters and a group of ANC supporters is indicative of this. There is no question of personal gain or personal malice, ill - will or spite being motivating factors behind the violence.
We are, however not satisfied that the version given by the applicants constitutes a full disclosure of all relevant facts as is required by the Act. We are of the opinion that they have not been entirely open and forthright and they have not given a truthful account of the events.
We are faced with two different versions as to what occurred at Zevenfontein on the day in question. After close examination of all the evidence and other material before us, we have no difficulty in accepting the version given by Sindisile Dastile and rejecting that of the applicants and we concur with the finding of the trial judge that Sindisile Dastile was an intelligent and honest witness who did not attempt to hide certain features which, had he been a witness determined to denigrate the applicants and the IFP, he might have done so.
The probabilities also, in our view, favour the version given by Sindisile Dastile. It is improbable that the ANC group initiated the attack and the shooting when one takes into account the fact that no members of the IFP group suffered any serious injury or gunshot wound and that all the deaths and injuries that day were caused by the IFP group. There is also no evidence of any members of the ANC group being seen with a firearm and one would expect that if it was the intend of the ANC group to attack the IFP group, if any members of the ANC group had firearms they would have been in the front line of the attack and that their leaders would also have been armed.
The applicants, on the other hand, were not satisfactory witnesses and we are of the opinion that they have colluded with each other to concoct their version. They, together with their co-accused, one Phathumuzi Joseph Magwaza (who was the local leader of the IFP at the Zevenfontein informal settlement), all lied when giving evidence under oath at their trial - they all testified that they were not present at and that they did not participate in the violence. Thereafter, the applicants, including the said Magwaza, all submitted applications for amnesty to the Truth and Reconciliation Commission. In his first application the said Magwaza persisted with his denial that he was present at or that he participated in the violence. In his first application the 2nd applicant put up a completely different story to what he said before us. In that application he stated, inter alia, that the AK47 rifle that he used to shoot at members of the ANC was his own rifle which he " had always had" and that he only shot after he had been chased to the nearby Jukskei river which he could not cross as it was in flood.
The said Magwaza's application for amnesty was refused on his first application on the basis that he denied guilt. Thereafter both Magwaza and the 2nd applicant submitted a second completed application form for amnesty. In such forms they both state that the 2nd applicant received the AK47 from Magwaza, that they were both present when the two groups confronted each other and that they fired at the ANC group as they believed they were about to be attacked. Both the 2nd applicant and the said Magwaza filed affidavits explaining why they changed their version which was contained in their first application form. The reasons given by them are unimpressive and confirm their propensity to tell untruths when it suits them to do so. Their reasons for changing their versions were:
1. that they did not know or trust the person who assisted them to complete their first application and they only learnt later that such person was employed by their attorneys of record and,
2. that they mistakenly believed that their application for amnesty could influence their application for leave to appeal.
The 1st, 3rd and 4th Applicant give scant information in their application forms. They basically only state that they themselves were victims of the war, that they were attacked and that they defended themselves. None of them give any details whatsoever of the role they played during the incident.
All these factors led us to the conclusion that the applicants have not, since the occurrence of the incident given an honest account of what actually occurred.
We are accordingly not satisfied that the applicants have made full disclosure of all relevant facts and for this reason their application for amnesty is
REFUSED: .
We are of the opinion that the acts committed by the applicants constituted a gross violation of human rights and that the persons killed and injured are victims in this matter. The deceased persons are Mshicileli Dastile, John Kidibone Mogale, Alfred Maloma and Ernest Sagwiti. The injured persons are Joseph Mulaudzi, Patrick Baloyi, Sindisile Wilford Dastile, Nkosinathi Diko, Jackson Jelaphanzi, Xolile Brusent and Sipho Bhizana. This matter is referred to the Committee on Reparation and Rehabilitation in terms of section 22(2) of the Act.
SIGNED ON THE 28TH OF MAY 1999.
JUDGE S M MILLER
ADV S SIGODI
MR I LAX
