DECISION
The Applicant applies for amnesty in terms of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 ("the Act"), as amended. Applicant was convicted of two counts of murder, five counts of attempted murder, one count of unlawful possession of a firearm and the unlawful possession of ammunition. These convictions flow from the incident that he seeks amnesty for. He is currently serving a term of imprisonment for these offences totalling 25 years.
SUMMARY OF THE EVIDENCE
The Applicant testified that he was a member of the Inkatha Freedom Party ("IFP"), and served on the disciplinary committee of the IFP inside Dube Hostel, Soweto, where he lived. He was also a member of the Youth Brigade of the IFP at Dube Hostel. Dube Hostel was inhabited largely by IFP members and supporters. Most of the township residents were ANC members and supporters.
Applicant testified that there was ongoing conflict between his political organization and the African National Congress ("ANC"). On the 30th May 1992, the ANC attacked the hostel using firearms and handgrenades. Applicant, amongst others, tried to phone the police, who failed to respond. The attackers were from Meadowlands Zone 4 and 5, which bordered the hostel. Applicant further testified that one of their members was shot dead by those attackers and the house of one of their members, a Mr Mazibuko who lived in Meadowlands, was bombed by those attackers.
They met as the youth of the hostel and decided that they had had enough. A decision was taken to attack the aggressors. They did not target a specific house, but decided to attack any ANC member or person walking in the street. Applicant pertinently stated that their intention was not to attack the residents of Zone 4 as such, but to shoot any ANC member they came across in the street, even if they did not reach Zone 4.
They set out on the offensive the day after the ANC attack on the hostel. Applicant was in the company of Petros Hlongwane, David Gumede, Mandla Mchunu and Jeffrey Mkhize (deceased in 1993 when he was shot by ANC aggressors). All of these persons were members of the IFP. Applicant explained that they had the authority to take such a decision, as Gumede was the Chairman of the Youth Brigade, and Petros was its Secretary. Mkhize was Gumede's deputy and Mchunu was an additional committee member. They collectively agreed that the attack should be carried out. They expected that such an attack would bring great relief to them at the hostel, because it was there that they were under constant attack.
As they were walking down a street in Zone 4, they saw one ANC member whom they knew as Tebogo, go into a particular yard. Tebogo's correct names are Lifa Alwyn Mtimkulu. Applicant knew Tebogo because in the past, before the violence started, they used to see him in the company of ANC comrades. On seeing Tebogo, the followed him, drew their firearms, and started firing.
There was in fact a wedding at this house. At the time of the attack, Applicant testified, he did not know that there was a wedding in progress. He did notice that there was a tent in the yard, and that there were many people milling about in the yard and on the street. They concluded at the time that something must have been happening, he stated. It was only after the event that they found out that they had attacked a wedding party.
Tebogo was on the premises, standing at the gate, amongst other people. Applicant and Mandla Mchunu went onto the property. As they fired, people fled in all directions. Tebogo was shot and killed. The guests and residents who fled towards the street, were shot at by Applicant's companions, who had also drawn their firearms. One other person was killed. Three of the township residents were injured. Applicant was injured, while Mchunu was shot, as they attempted to run away. As they fled, Applicant and Mchunu continued to fire at the people in front of them. Applicant further conceded that he did shoot at an approaching bakkie, and that it is possible that one of the policemen who came to the scene shot at them.
Later on in his testimony, however, Applicant asserted that he had only seen the bakkie after he had phoned for an ambulance from an adjacent house. His further testimony was that he would not expect IFP members to attend an ANC function, such as a wedding. He had no idea, however, as to whether this wedding was an ANC wedding. He in fact had no clue as to the political affiliation of any of the persons at that wedding party, except Tebogo. He also conceded that he accepted that it was possible that one of the injured, Douglas Kheswa, was not involved in politics at all, stating further that they would not have attacked this house had Tebogo not been there.
Applicant was asked if he could distinguish a PAC member from an ANC member, and his response was that he could not. He concluded his testimony by stating that he only realises now that they were shooting at the wrong people, explaining that it was not easy to tell ANC persons apart from other residents.
The Committee was furnished with various statements. The deceased's father denied that his son was a member of any political party. Douglas Mzwandile Kheswa was injured during this incident. He, and others, stated that they were simply attending a wedding party, and were dressed for that occasion. They were not wearing any clothes depicting a political gathering of any sort.
Finally, there is the statement of one of the policemen, Thamsanqa Anthony Mnwana, and his companion, Benedict Dladla, who arrived at the scene in the bakkie, soon after the shooting started. Mnwana has since disappeared in rather mysterious circumstances, the deceased's family alleged. In their statements, Mnwana and Dladla confirm that the shooting took place at a wedding, and that there was an exchange of gunfire with persons who fired shots as they ran towards them. These statements are indirectly confirmed by Applicant who, in furnishing a supplementary statement to the Amnesty Committee, states therein that the police told him that he was shot by the police because he had shot one of the comrades who died at the scene of that incident.
CONCLUSION
It was not disputed that the Applicant was a member of the IFP Youth Brigade, and that he and his fellow members collectively took a decision to go out into Meadowlands to avenge the attacks on Dube Hostel that had left some hostel residents killed and others injured. Their perception was that these attacks were carried out by members or supporters of the ANC. The police were of no help in reducing the levels of violence, so they felt that it was their duty to right the wrongs that had been perpetrated against them.
The Applicant had not seen the deceased, Lifa Alwin Mtimkulu, during any of the attacks on the hostel. Lifa was, however, known to him as an ANC member or supporter. This is what led to him being attacked at Meadowlands Zone 4 where a wedding party was in progress.
The Committee accepts that in the circumstances the Applicant regarded Lifa as one of the enemy and a legitimate target for attack. The attack was both to avenge what had been done to IFP members, and to deter ANC members from launching any further attacks on the hostel. Given the conflict involving the hostel and the political tensions of the time, the attack upon Lifa can be regarded as being associated with a political objective.
How the victims of this attack at the wedding party were to conclude that their attackers were avenging IFP attacks was not explained. The Applicant further was not able to distinguish ANC members (who were their legitimate targets) from other a-political or PAC aligned residents of Zone 4. The Applicant categorically stated that they did not know which, if any, political parties the guests at the wedding party were affiliated to.
In reviewing the evidence of the Applicant, it appears that the shooting of the guests and residents in the vicinity of the wedding party on the 30th May 1992, was an indiscriminate shooting of persons whose political leaning was unknown to the Applicant and his group. The context of the incident was that this was a wedding, and although the attack at the hostel had occurred the previous day, attacking innocent persons cannot be said to be an act committed in reaction to the attack at the hostel. Moreover, Applicant's case was not that he subjectively thought that these other persons were ANC members or supporters. This action can accordingly not be regarded as being in furtherance of the struggle waged by the Applicant.
The ANC person identified was Lifa (Tebogo), yet the group shot at all of the fleeing guests, even after Lifa had been fatally shot. This additional shooting could not have been directed at a political opponent, and was indeed totally disproportionate with respect to the objective pursued.
The Applicant and his group could thus not have had reasonable grounds to believe that they were acting in the course and scope of their duties, and within the course and scope of their express or implied authority, as far as the shooting of the rest of the wedding guests was concerned.
Finally, the Committee is not satisfied that the Applicant was completely honest with respect to the arrival of the police at the scene, and the subsequent shoot-out that took place once they got there. Much as the Committee only has the untested evidence of Constable Thamsanqa Anthony Mnwana and Benedict Dladla with respect to the shoot-out between the police and the Applicant and another, on the probabilities, there is no reason to doubt the veracity of their statements. The Committee accepts that this shoot-out led to the injuries sustained by the Applicant and the fatal injury Mandla Mchunu sustained.
The Committee is satisfied that the killing of Lifa Alwin Mtimkhulu falls within the criteria set out in the Act, and the Applicant thus qualifies for and is GRANTED amnesty with respect to this killing. Amnesty is further granted for the unlawful possession of a firearm and ammunition as contained in the Court record on sentence.
With regard, however to the second killing and the five attempted murders, the Committee is not satisfied that the requisite political object was present when these acts were committed, and amnesty is REFUSED with respect to these offences.
DATED at
: THIS
: DAY OF
: 1999.
JUDGE DENZIL POTGIETER
ADV C. DE JAGER
Adv. L. GCABASHE
PANEL : Judge D. Potgieter; Adv. C. De Jager; Adv. L. Gcabashe
EVIDENCE LEADER: Ms Lulama Mtanga
VENUE & DATE: 3 June 1999
Telkom Park
PRETORIA
ATTORNEY FOR APPLICANT: Mr Dawie Claassen
DAWIE CLAASSEN ATTORNEY
Glyn Forum
519 Glyn Street
Hatfield
PRETORIA
Tel. (012) 3620184
Fax: (012) 3620184 x112
