DECISION
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The Applicant, MHLANGENI JAMES NTULI, applies for amnesty in respect of the killing of Mr Majaji Phakathi in Hillbrow, Johannesburg on or about 21 January 1993, the unlawful possession of a Rossi .38 revolver and the unlawful possession of .38 rounds of ammunition. The Applicant was convicted of the above offences on 20 September 1993 and sentenced to 15 years imprisonment on a charge of murder, two years imprisonment on the charge of unlawful possession of a firearm and six months imprisonment on the charge of unlawful possession of ammunition, all the terms of the imprisonment to run concurrently. The Applicant is at present still serving his sentence.
The application is not opposed and the Applicant was the only person to give evidence at the hearing. From the evidence of the Applicant it transpired that the Applicant, his brother and the deceased grew up together in Natal and were on good terms until political differences began to sour the relationship. The Applicant and his brother were both members of the IFP, the latter a ranking official of the organisation. The deceased was a member of the ANC. At one stage all three lived in a hostel in Johannesburg but the deceased moved out after the hostel became a predominantly IFP hostel. The bad blood as a result of their political differences led to the slaying of the Applicant’s brother by the deceased in December 1992 when all three the above were at home in Natal. The Applicant was convinced that the deceased was going to kill "him next" and that his own life as an IFP member was in danger. He subsequently sought out the deceased and shot him. He did not take anything from the deceased or remove anything from the body. He testified that at the time it was a war situation that existed between the ANC and IFP and that he regarded the deceased as an enemy. He would have killed the deceased even if he had not killed his brother buy any other member of the IFP.
It is common cause that at the time of the incident the IFP and ANC were locked in a battle which often led to violence and killings involving people from the same villages and even members of the same family on opposing sides.. The Committee is aware of other matters where offences were committed not only with a political objective but also involving a strong personal element and carefully considered whether the latter circumstance would exclude the existence of a political objective as required by Section 20 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 ("the Act"). The Committee is of the opinion that despite the strong personal motive which had prompted the Applicant to kill the deceased the incident cannot be removed from the political situation at the time. His personal motive co-existed with the political motive. The Committee accepts the submissions made by the legal representative of the Applicant that there are strong indications that the personal motive was secondary to the political one, inter alia, for the following reasons:
The Applicant, his late brother and the deceased all stayed in the same hostel which eventually became IFP domain and which the deceased victim was forced to leave;
The Applicant although not a ranking official of the IFP as in the case of his late brother attended IFP meetings and rallies;
There was (and this was an explicit finding of the trial Court) no peripheral criminal activity involved in the killing of the deceased.
The Committee is furthermore satisfied that the Applicant has made a full disclosure of all material facts and has complied with all the requirements of the Act.
Consequently amnesty is GRANTED to the Applicant in respect of the following offences:
The killing of Mr Majaji Phakathi in Hillbrow, Johannesburg, on or about 21 January 1993;
The unlawful possession of a firearm; and
The unlawful possession of rounds of .38 ammunition.
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
