DECISION
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Both Applicants apply for amnesty in respect of the killing of a policeman, Mr Ernest Mfanayedwa Manana (herinafter referred to as "the deceased") at the Easy by Night Tavern in Sivukile, Morgenzon on the 4th May 1990. The Applicants were both convicted on a charge of murder on 31 January 1992 and each sentenced to a term of 12 years imprisonment which sentences the Applicants are still serving. The applicants are opposed by the father of the deceased policeman, Mr Simon Mkhananda Manana on the basis that the offence was not committed with a political objective but was purely a criminal act. Both Applicants and Mr Simon Manana testified at the hearing.
In broad outline the testimony of the two Applicants corresponded in that both testified that there was a boycott of white owned businesses in the township organised by SACO (Sivukile Action Committee Organisation), an organisation affiliated to the ANC of which both of them were members; that policemen were driven out of the township but that the deceased was allowed to stay since he had undertaken to support them and regarded himself as one of them; that the deceased thereafter became uncooperative in that he refused to be searched at a roadblock set up by SACO and at the entrance of the night club where they all were at the night of the incident during which the deceased was killed and that he had bought items from a white business.
The major discrepancy in the evidence of the two Applicants relates to the sequence of events which led to the killing of the deceased. The Second Applicant, Jabulane Makhanye, who was charged with the duty of disciplining those members of the community who would breach the consumer boycott testified that he went up to the deceased with the intention of admonishing him for his recalcitrant conduct, that the deceased drew his gun and began shooting. He grabbed the deceased’s wrist so as to disarm him, others who were present at the nightclub attacked the deceased with knives and bottles and, the Second Applicant, then ran away. The next day he had heard that the deceased had died. When questioned by members of the Committee he indicated that he did nothing to try and stop the vicious attack on the deceased and identified with it.
The First Applicant, Joseph Baphelile Makhanye, in turn testified that he had been one of the persons who guarded the entrance and searched people who entered the tavern. He was not there when the deceased refused to be searched but was aware of it at the time of the incident since he had been so informed by his comrades. He also knew first hand of the deceased’s refusal to be searched at a roadblock earlier that day and that he had breached the boycott. He, however, related that the deceased was involved in an argument with a "man from Newcastle" and that the accused started shooting. He then drew his knife (one which he had confiscated from one of the entrants at the tavern door earlier that night) and stabbed him once while others also attacked him. In cross-examination he explained that he did not see his brother and may have been wrong in what he observed and what he thought to be an argument with the man from Newcastle. There were other minor discrepancies in the evidence of the two Applicants but of not of such a nature as to constitute material differences.
The father of the deceased conceded that there was a consumer boycott of white owned businesses at the time. Both Applicants were well known to him and, in fact, as members of his soccer club regarded him as a father. He saw them as a gangster mob who were coercing and harassing members of the community inter alia a counsellor one Johannes Zwane who did not want his sons to become members of SACO. He further said in cross-examination that he, himself, had not been opposed to the consumer boycott but indicated that in a small community like Morgenzon the boycott caused hardship and that not to have bought from businesses in town would have caused members of the community to have suffered starvation and the Applicants themselves bought in town. He could not in his evidence shed any light on the circumstances of the incident at the tavern.
The Committee paid due attention to the fact that the incident had occurred at a tavern where there was bound to have been some drinking of alcohol. There was, however, no evidence placed before the Committee to show that there was a drunken brawl. All the evidence, including that of the deceased’s father lead us to the conclusion that the accused’s death resulted from his reneging on his undertaking to support SACO in its boycott campaign and that the Applicants regarded his actions as indicative of political resistance on his side. The fact that the deceased was a policeman no doubt reinforced this perception.
After consideration of all the above the Committee concludes that the Applicants have met all the requirements of Section 20 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 ("the Act"), that the acts were committed with a political objective and that the Applicants have made a full disclosure of all relevant facts.
Accordingly amnesty is GRANTED to Joseph Makhanye and Jabulane Makhanye for the murder of Ernest Mfanayedwa Manana in or near Sivukile, Morgenzon on the 4th May 1990.
In our opinion the next-of-kin of the deceased are victims in relation to the incident and the matter is referred to the Reparation and Rehabilitation Committee for consideration in terms of the provisions of Section 22(1) of the Act.
DATED this ................... day of.......................... 1999.
_______________________ JUDGE DENZIL POTGIETER
_______________________ADV. CHRIS DE JAGER
_______________________ADV. FRANCIS BOSMAN
