DECISION
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The applicants make application in terms of Act 34 of 1995 amnesty in respect of the murder's of :-
1. Edwin Vuyani Nkomo;
2. Mbulelo Esau Mabena;
3. Msilane Ronel Sishange;
4. Oscar Amos Mhlangeni,
and in respect of the attempted murders of :-
5. Simon Morris and
6. Sekano Avonly Kgasi.
All the Applicants were members of the AZAPO. The incident which gives rise to these applications occurred on 1 August 1986 in Orlando East, Orlando West and Chiawelo in Soweto near Johannesburg.
It is common cause that the origin of the conflict stems from the rivalry between the AZAPO and the United Democratic Front (UDF). There was violence in Soweto, homes belonging to the members of the rival groups were burnt. People were killed. Others left their homes to stay in camps in order to protect themselves as well as their members. Meetings were held at leadership level in attempt to stop the violence but to no avail.
On the night before the killing of the deceased, the house of Jefferson Lingani, an AZAPO leader was attacked and burnt with petrol bombs. Jefferson Lingani stayed in Orlando West.
According to the first applicant, Mr Lingani came to him at Orlando East on the day following the day his house had been burnt. He sought assistance of the fellow AZAPO members, to go and clean up his house. First applicant did not go immediately because he was fixing up his car. Later that afternoon he was informed by Mxolisi, Speedo and Kabelo that some youths responsible for the burning of the house were being held and they were at the DOCC. He then drove to the DOCC where they took the youths and drove with them to Orlando West, to Jefferson Lingani 's house.
First applicant testified that he personally did not go into the house and did not interrogate the youths. At all the times he was outside busy fixing his car. He testified that at about 5 o'clock, in the afternoon, members of the leadership Sam Siyema and Thami Molekwa came and they spoke to the interrogators. They gave an order that the culprits be killed.
The culprits were taken to Comrade Glen's house in Chiawelo in two cars. At Comrade Glen's house there was a caucus and there it was decided that the culprits must be killed immediately because it was already late. They went to look for a spot where these culprits would be killed. After they had found it, they came back. The first three culprits were taken in Mr Hlasa's car. The people who went with him were Motlane, that is the second applicant, Kani and Speedo. He testified that they took the three victims to a spot which was up a hill. Mr Hlasa says that he only shot once. The other two AZAPO members also shot once. When the victims fell they left the scene.
The second applicant Mr Mphoreng testified that at the time of the incident he was staying at one of the AZAPO hide out camps in Orlando East. He says that Jeff came to him early in the morning at about six (am) and told him that his house has been burnt. Other AZAPO members came and they assisted with the cleaning of Jeff's house. He spent the whole day at Jeff's place. When he arrived there he found Sam Siyema and Comrade Thami who were leaders of AZAPO. Whilst cleaning the house a group of about fifteen to twenty youths in school uniform went past the house. They were singing intimidating slogans. He suspected that these were members of the SASCO an affiliate of the UDF. They were singing walking up and down in front of Jeff Lingani’s place. He testified that he did not leave Jeff Lingani's place at all. Later during the day, Kani and the third applicant went to Orlando. When they came back they came with six youths. First applicant, Joey and Jeff were also with them. He identified them as being part of the group that had been singing earlier on in the day past Jeff Lingani's house. He identified them by their clothes. They were taken into the house where they were interrogated. He was also part of the interrogating team and also took part in the assaults.
He noticed during the assault that two of the boys had UDF T-shirts under their clothes. They interrogated the boys until it was dark. The two AZAPO leaders Comrade Sam Siyena and Thami came later in the afternoon and gave an order that the boys must be killed.
He testified that from Jeff's house three of the youths were taken straight to the spot where they were going to be killed. He did not recall going to Comrade Glen's house in Chiawelo. He testified that Thami and Sam who were leaders were present at the scene of the killing. He personally shot Oscar three times on the head. After shooting Oscar he pushed him towards the bottom of the hill slope. After that he went back to the car. Sam and Thami also shot the other two youths.
The third applicant, Mr Thandakubona testified that on the morning of the 1st August after Jeff 's house had been burnt he together with Kani went to help. They found other comrades there. They cleaned up until about 3 o'clock He said there were youths singing up and down past Jeff Lingani’s place.
At about 2 o'clock Jeff took him and Kani to Orlando. On their way to Orlando they saw some of the boys who had been singing. They apprehended them. From there they went to first applicant Hlasa. They drove in the two vehicles to Jeff's house in Orlando West.
He also took part in the interrogation. He used his bare hands and fists to assault them. He assaulted them because he wanted to find out who their UDF leaders were, and who had ordered them to burn Jeff's Lingani's house.
After the assault they went to Glen's house. He did not take part in the actual killing. At the time of the killing he had gone to get a gun. When he came back he was told that the boys had already been killed.
This was the evidence of the applicants. There was however, one survivor who also gave evidence, that is Mr. Morris. Morris testified that on the day he had come out of school. On the said day they were accompanying one Vuyani to his home in Orlando East. There were six of them.
They were apprehended by, amongst others, the first applicant. Mr Hlasa produced a firearm and threatened them. He was accompanied by the other two applicants. They were taken in two cars, a Chevrolet and Mazda to Jeff Lingani's house. They were undressed, given old clothes and separated into two groups of three and assaulted. Among the people who assaulted them, Hlasa, first applicant was present. Mr. Morris stated that pliers were used to crush his private parts as part of the torture. A plastic bag was put over his head to suffocate him. Thereafter they were put into the boot of a car. Morris says they were taken to a house in Chiawelo, that is Glen 's house. After some time they were taken to the veld. Morris was taken with Vuyani Nkomo and Sekoane.
Hlasa, first applicant, was present. He shot him in the leg. Mphoreng, 2nd applicant, was also present. He also shot him. Seven shots were fired at him of which three hit him. The other four shots missed him. He testified that the 1st applicant was not telling the truth when he said that they each shot once. He is downplaying his role. He further indicated the places where the bullets went through his body.
Section 20(1) of the Promotion of National Unity and Reconciliation Act no 34 of 1995 provides that the Amnesty Committee shall grant amnesty in respect of an act or offence if it is satisfied that the act or offence is an act associated with the 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 that the abduction of the six youths at Orlando East occurred within a political context. We are prepared to accept that the applicants may have suspected that the youths could have been among the people who were singing up and down Jeff Lingani's house during the day.
However, we are not satisfied that the killings and attempted killings occurred within the political context. None of the victims were positively identified as being among the group that earlier passed by Lingani's house. The victims were severely tortured. They were asked about their involvement in politics which they denied. According to Mr. Morris, they denied having burnt Jeff Lingani's house. Mr. Morris denies that they were wearing UDF T-shirts. He testified that he himself was wearing a Kaizer Chiefs top which he was forced to take off. It is our view that after the torture and severe assaults the applicants must have realised that the people they were assaulting were not the people they were looking for. The youths were merely killed because the applicants realised that they had already assaulted and tortured them severely. Taking into consideration the size of the group which was seen at Lingani's house we find it improbable that the victims could have been positively identified by Mphoreng as having been part of the group.
Further we are satisfied that the applicants have made a full disclosure of the events. First applicant did not place himself at the scene of the abduction and yet Morris the survivor states that he is the one who came to ask for a cigarette.
Secondly first applicant denies having gone into the house to assault the youths and yet Morris alleges that he also took part in the assaults. Second applicant says that he shot Oscar and was with the other group. Morris however, is adamant that he was part of the group which shot at him. He was with the first applicant. According to Morris, when he started moving after he shot the second applicant told first applicant that Morris was still moving he must be shot at again.
The third applicant somewhat downplayed his role in the assaults. For example he did not mention that as part of the torture he used pliers to crush the youths, private parts. This only came after cross-examination and he only remembered that after some time also the victims are saying that they do not have any UDF T-shirts on. The applicants are saying that the youths wore UDF T-shirts. This we believe is a ploy to justify why they killed the youths.
Mr. Morris 's evidence was not without flaw. He, however, was an impressive witness. Minor details, are not substantial as to render his evidence not credible. We are satisfied that his account of what happened during the assaults and the killing is a true reflection of what happened.
Taking all these facts into account we come to the conclusion that the applicants have not, since the occurrence of the incident, given an honest account of what actually happened.
We accordingly are not satisfied that the applicants have made a full disclosure of all relevant facts and for this reason their application for AMNESTY IS REFUSED.
Signed at Cape town on this .......... day of ...................... 1999.
....................................... JUDGE B. NGOEPE
....................................... ADV. F. BOSMAN
....................................... MR. W. MALAN
