: DECISION
The applicant applies for amnesty in terms of Section 18 of Act 34 of 1995 (the Act) in respect of the following offences:-
1. Murder of Luyolo Bright Zengethwa;
2. Murder of Mzoxolo Mtshungwana;
3. Escaping from lawful custody in contravention of Section 51(1) of Act No 51 of 1977;
4. Escaping from lawful custody in contravention of Section 48(1) of Act 8 of 1959;
5. Possession of a firearm without a licence in contravention of Section 2(1) of Act 75 of 1969.
The applicant was formally charged with the above offences in the Bisho High Court, but was not asked to plead and his case was postponed pending the finalisation of his application for amnesty.
The applicant was born at Idutywa in the Eastern Cape on the 12th of December 1964. He grew up in Tsolo District and studied standards 3 to 8 at Umtata. In 1986 he went to Mdantsane near East London where he completed standard 9 and 10. He joined the Pan Africanist Congress (PAC) through Azanian National Youth Unity (AZANYU) in 1986. In January 1989 he left South Africa via Lesotho for Tanzania.
The applicant did his basic military training in Tanzania. In 1991 he went to Guinea where he trained further in military and guerilla warfare. From Guinea he went to egypt where he was trained in counter-intelligence and anti-terrorism. He went back to Tanzania in December 1992, and was promoted to the rank of company commander in the Azanian Peoples Liberation Army (APLA) the military wing of the PAC.
In May 1993 he was called by Mbulelo Fihla and told that he was to be deployed inside South Africa. Fihla then was a member of the High Command of APLA. He is now second in command in the Intelligence Service of the South African National Defence Force (SANDF).
According to the applicant he left Tanzania together with another comrade called Dloks (his real name was Madoda). They were taken by motor vehicle from Bagamoyo to the airport from where they flew to Zimbabwe. They were met at the airport by a comrade called Muzi and he took them to Hatfield where they met another comrade called Keith (his real name was Bangani Dlamini). They stayed for about a month in Zimbabwe and were joined by Keith and an APLA operative named Mrapapa. They travelled by train to Bulawayo and from there by motor vehicle to the borders of Zimbabwe and Botswana. Keith was the Commander of their unit. A comrade came to fetch them from Botswana and he took them to Katlehong. Here Mrapapa joined his old unit and the applicant was recruited into it. Keith received instructions to proceed to Transkei and the applicant was ordered to accompany him. Dloks also joined them. They were met in the Transkei by the Director of Operations, Letlapa Mphahlele. He told applicant that he was not going to go back to Johannesburg, but was to be deployed in another area and that further briefing would follow.
During or about July 1993 the applicant was told by one Sandile Ntshikilana (also known as Mandla, Power or Mzala) an administrator of APLA, that he was being deployed in Dimbaza in the former Ciskei where he would be required to conduct the training of Task Force members. He began on his assignment with the physical training of recruits as he did not have any arms to train them with. He only had one Z88 pistol. He appealed to Mandla to supply him with firearms. In reply Mandla said the applicant, as a trained cadre of APLA, should get the arms from the police at Dimbaza Police Station or from any policeman.
Thereupon the applicant reconnoitred the Dimbaza Police Station in execution of the order to obtain weapons from the police. He discovered that on Fridays and Saturdays the policemen there were always drunk and that the station was staffed by only a few policemen who could be overcome with little difficulty.
As an APLA operative the applicant's general instruction from the APLA High Command was to prosecute the armed struggle by all means against the then undemocratic and oppressive "racist minority regime". As part of the armed struggle, APLA cadres had to seek and attack the "bastions and minions" of the regime. The ultimate objective of the PAC and APLA was not only to topple the then regime, but to eventually return the land to the majority of the people in South Africa. The bastions and minions of the regime were:-
(a) The members of the South African Police (SAP) and reservists in general;
(b) The members of the South African Defence Force (SADF);
(c) The farmers as they belonged to the Commando structure, over and above the fact that they occupied the farms out of which it was the intention of APLA to drive them;
(d) The white homes which were the garrisons of apartheid;
The applicant perceived his general instructions as being "to seek, identify and attack the enemy who was seen in the context of the above stated bastions and minions of the regime, and also to train other cadres and command them in whatever operation that is being embarked upon."
In pursuit of the above objectives on or about the 9th day of October 1993 the applicant commanded a unit of APLA cadres consisting of himself and Mzoxolo Mtshungwana (Alias Xoli) which launched an attack on the Dimbaza Police Station. The applicant was armed with a Z88 pistol; Xoli was unarmed. On arrival at the police station the unit found two policemen. The applicant pointed his pistol at one of them. The policeman stood up and attempted to draw his pistol. The applicant immediately shot and killed him. The other policeman returned fire and the unit withdrew. Xoli was shot dead in the street. The applicant sustained a bullet wound, and he was soon captured by the police reinforcements. The name of the deceased policeman was Luyolo Bright Zengethwa.
The applicant was removed to the Bisho Hospital and kept there under police guard. On the 17th or 18th October 1993 the applicant escaped from the hospital. He was re-arrested in 1997. On the 6th of November 1997, the applicant escaped again from Dimbaza Police Station but he was re-arrested shortly thereafter.
After having carefully considered by the applicant's application for amnesty, the Committee is satisfied that the application complies with the requirements of the Act; that the offences referred to above, save for the escape from lawful custody during 1997, are offences associated with a political objective committed in the course of the conflicts of the past in accordance with the relevant provisions of the Act; and that the applicant has made a full disclosure of facts relevant thereto. In the result the application for amnesty is GRANTED in respect of all of the offences enumerated above save for the offence of escaping from lawful custody committed during 1997.
The Committee is of opinion that the next of kin of Luyolo Bright Zengethwa and of Mzoxolo Mtshungwana are victims and recommends that they be referred for consideration in terms of the provisions of Section 22 of the Act.
Signed on the 30th day of November 1999.
................................. ............................
JUDGE D. POTGIETER ADV N SANDI
..........................
DR. W.M. TSOTSI
ADDENDUM
VENUE: Centenary Hall, Port Elizabeth
DATE: 26 - 30 July 1999
PANEL: Judge Potgieter, Dr Tsotsi &
Adv Sandi
EVIDENCE LEADER: THABILE tHABETHE
Mr Mbandazayo
2nd Floor, Clark House
60 Terminus Street
EAST LONDON
Tel: (0431) 20524
Fax: (0431) 26056
LEGAL REP FOR VICTIM: Mr Greg Nel
Griebenow & Nel Attorneys
3rd Floor, FNB Building
582 Govan Mbeki Avenue
North End, P.E.
Tel: (041) 4870270
Fax: (041) 4870249
VICTIM: Mrs Nontobeka Zengetwa
(Wife of deceased)
