DECISION
The applicant seeks amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 (the Act) in respect of the following offences:
1. The murder of Thokozani Sydney Mthembu of Kwa Mashu, in the district of Inanda, KwaZulu Natal on 5th February 1993.
2. Robbery with aggravating circumstances of a firearm, being a 9mm Pietro Baretta pistol, which was issued to the said Mr Mthembu.
3. Illegal possession of a firearm being a 9mm pistol and ammunition without a licensed firearm from which such ammunition could be fired.
The applicant testified that he joined the branch of the African National Congress Youth League (ANCYL) when it was launched at his place of residence, at "B" Section, Kwa Mashu in 1991 and was elected its chairperson. In 1993 he was elected secretary of the branch.
He further testified about political tension which existed between the hostel dwellers who were IFP supporters on the one hand an ANC supporters who were the majority of residents in Kwa Mashu on the other hand.
Occasionally, the IFP supporters would attack and threaten to attack the ANC supporters. As a result of this the ANCYL took a decision that the applicant should form a self defence unit; appoint whoever he wished to appoint as a member of the defence unit; that the executive of the ANCYL should devise ways and means of protecting the community. Members of the defence unit resolved that members of the South African Police should be disarmed because they were legitimate targets as they were serving the previous (apartheid) Government. Weapons obtained from such disarmament would be used to defend the community. The applicant and his defence unit then embarked on gathering information about the location and movements of members of the police.
On 5th February 1993, members of the defence unit, consisting of Mkosinathi Khanyile, Dumisani Mthethwa and the applicant came across Nkosinathi Sydney Mthembu (the deceased) whom they recognised as a police constable, who had parked his vehicle in the street next to House No. C1227 and was playing and talking through the window to his 2 year old child, who was standing just next to his car. The child's uncle, Menzi Sibisi who was then a schoolboy aged 15 years, was sitting on the bonnet of the car on the driver's side.
Applicant's companion, Dumisani Mthethwa ordered the deceased not to move. According to the application the deceased turned his head to look properly at the applicant and Nkosinathi Khanyile. However, according to Menzi Sibisi, the deceased turned and tried to reach for his briefcase, which was on the back seat of the car and inside the briefcase was a pistol. The applicant disputes Sibisi's version.
Dumisani shot the deceased on the back of his head and the applicant shot him in the leg. They searched him and found no weapon on his body. They took his briefcase; fired shots to scare people who were approaching the scene and they ran away.
During the questioning of the applicant by Committee Members, it transpired that the applicant was involved in 10 incidents where policemen were attacked and disarmed; that in 3 incidents the victims were killed; the he applied for amnesty only for the murder of the deceased in this matter because at the time of completing the application form for amnesty he did not have legal assistance. He thought he was supposed to apply for amnesty for only those incidents for which he was convicted.
The applicant testified he was aware that it was not the policy in 1993 after the Peace Agreement of the ANC to disarm members of the police force to obtain arms for protecting the community. Although he attended meetings of the regional structure of the ANC, he did not raise the issue there, nor did he seek guidance from them.
Although the decision of the branch of the ANCYL was to disarm the police, in some instances police were killed, like in the case of the deceased, Mr Mthembu. After extensive questioning, the applicant could offer no reason or motive why the deceased was shot and killed. More particularly because the deceased offered no resistance when he was confronted. The applicant could not establish any political objective which they aimed to achieve by killing the deceased. They could have disarmed him without killing him. The killing of the deceased was therefore totally disproportional to the objective of disarming him.
In conclusion, the Committee is not satisfied that the applicant is entitled to amnesty. In the result his application for amnesty is REFUSED.
The Committee finds that Azanda Sibisi (7 years old) and Anele Sibisi (5 years old) residing at C1227 Kwa Mashu, are victims in terms of the Act and they are referred to the R&R Committee for its consideration.
DATED AT
: THIS
: DAY OF AUGUST 1999
JUDGE A WILSON ADV C DE JAGER J B SIBANYONI
COMMITTEE: Wilson J, C de Jager SC and
J B Sibanyoni
DATE: 4 August 1999
VENUE: Marian Centre, Pietermaritzburg
EVIDENCE LEADER: Mr Z Mapoma
FOR THE APPLICANT: Mr K Molohlanye
Saloshna Moodley & Co.
9 Highview Road
Overport, Durban
031-2077435 (fax)
031-2077437 (ph)
0824760686
FOR THE VICTIMS: Mr Z Mapoma
