: DECISION
Towards the end of the 1980's South Africa entered a new phase in its history. It was the beginning of a democracy that we are still trying to shape even today.
With these changes, we saw a phenomenon that is not unusual with the dawn of a new political dispensation. In particular there was a heightened incidence of violence which was eventually clearly identifiable with the political differences that we had in South Africa at the time.
In our view this was not a difficult phenomenon to develop because of the political violence that existed prior to the changes. However, the focal issue changed and the violence in the early 1990's escalated mainly in the areas formally reserved for the African people of this country.
As a result, the African National Congress (ANC) structured a mechanism of defending the membership and the residents in general from attacks by other groupings. It was explained that it was necessary to establish the Self Defence Units (SDU) because the police were not helping to resolve the situation at all.
The area of Thokoza was no exception and essentially the battles developed between the members of the ANC and its allies on the one hand and the Inkatha Freedom Party (IFP) and its allies at the time, on the other hand. the core of the fight was political power of the area which included for practical purposes, the establishment of territorial divisions within the same locality and to assert a national image. This led to party on party attacks and consequently protection of the areas demarcated as "belonging" to a particular political party.
While it was the essential purpose of the SDU to defend the areas and people, the situation matters developed with time, so as to include full scale political war in which members of the different parties were injured and killed.
This "war" included the destruction of most, if not all, the political machinery employed to interfere with the functions of the ANC (e.g. the killing of opposition membership, in particular informers and people assisting such machinery). Therefore it was no longer a question of waiting for an attack, but rather at times, the use of pre-emptive force to attain a political objective. The SDU operations were conducted in a quasi-military style in which Commanders were appointed to oversee operations. These Commanders seem to have had overwhelming powers bestowed upon them.
Hereunder we intend to deal with a number of applications which fall within the ambit of what is set out above. It must be added though that a few of the actions to be discussed below fall ostensibly within the context of this political scenario, but do not comply with the requirements of Section 20 of Act 34 of 1995 as amended (the Act) which provides that amnesty shall be granted.
(a) the act/offence/omission to which the application relates, is associated with a political objective committed in the cause of the conflicts of the past;
(b) that full disclosure is made of the facts;
(c) that the Act has been complied with.
We will deal with each application.
1. In the application of:
ANTONY NDUMISO MACI - AM7365/97
ID NO: 660327 5676 083
The applicant is an ordinary member of the ANC and was a member of the SDU in Katlehong.
He applies for amnesty in respect of:-
(a) murder of Sicelo Yekani;
(b) murder of Mtolo;
(c) murder of Ntsingila;
(d) unlawful possession of firearms and ammunition and
(e) dealing in and distribution of firearms.
Whilst still an SDU member he used to be given money by the community at Katlehong to buy weapons at Pholapark and Vosloorus. At one stage he had to travel to Mozambique to acquire weapons.
He possessed an AK47 and a pistol for his own use and transported various types of weapons for the SDU members such as AK47's, pistols, FPS57; Rocket launchers also known as a "Bazooka".
Murders.
RE: YEKANI
In respect of the murder of Sicclo Yekani, the applicant testified that he had just been released from detention without trial. One evening whilst he was at a house in which he was staying, he heard someone knocking loudly at the door. He asked the person to identify himself. Instead the person kicked the door. He shot through the door, thinking that it was a member of the Internal Stability Unit (ISU) who had presumably come to arrest him as he was in possession of an unlicensed AK47 rifle. He only realised when the person fill inside the house that it was his friend with whom he was staying and had accompanied from the former Transkei. The applicant stated that the killing of Sicclo was a mistake. His legal representative Mr Shein, addressed the Committee and argued that the killing was an accident associated with a political objective in that when the applicant fired the shot, in his mind the person who was at the door was a policeman. His intention was to shoot and kill a political enemy.
The applicant further testified that he was involved in the killing of two other males namely Mtolo and Ntshingila who were police informers.
RE: MTOTO
When SDU's were fighting at Pholapark, Mtolo fled the area. An order was issued by a certain Bruce for Mtolo to be killed. In a company of other SDU members, the applicant, armed with a pistol, hunted down Mtolo. The applicant was first to shoot at him with his pistol and he thereafter have his accomplices a chance to use their AK47 in shooting Mtolo who died as a result of this attack.
RE: NTSHINGILA
The applicant stated that Ntshingila used to inform the police where weapons were stored (at a traditional healer). Ntshingila was called to an SDU/community meeting and asked about his activities in informing the police. According to the applicant, Ntshingila attended the meeting but was defiant towards the community and threatened that he would bring IFP members to attack the community. The community got angry and the SDU's decided that he be killed. The applicant shot first and does not remember how many bullets he fired. Others also shot at Ntshingila and he died as a result of this attack.
The Committee is not satisfied that the murder of Yekani is an act associated with a political objective. His killing was not intended. Even if applicant's version is that he believed that Yekani was a member of the ISU is accepted, was acting in self-defence and not with political motive because he feared that the ISU would arrest him for possessing an AK47 rifle unlawfully. The application for amnesty in this respect of this incident is thus REFUSED.
On the other offences, the Committee is satisfied that the applicant has complied with the requirements of the Act. accordingly he is GRANTED amnesty for the:-
(a) murder of Mtolo;
(b) murder of Ntshingila;
(c) dealing in and distribution of firearms and ammunition and
(d) unlawful possession of firearms and ammunition.
2. In the application of:-
ELLEN VATHISWA BARNABUS - AM7376/97
IDENTITY NUMBER - 750902 1206 084
She joined the Monoheng Section of the SDU in 1992 as an 18 year old. She was under the command of Ntabela.
She applies for amnesty for the murder of Johannes Thabiso Mkoteli (the deceased) who she shot and killed as a result of a decision of the community to kill all informers of the police. He was regarded as an informer because he was often seen in the company of the police and soldiers. Indeed they ascertained that he was an informer and this seem to be confirmed by the fact that his father addressed one of these community meetings requesting that the activities of the deceased should not be visited upon the family. The applicant had a bona fide belief that the deceased was an informer.
The deceased, upon being questioned ran into his home. He locked his bedroom door. The applicant, in the company of her Commander forcibly opened that door causing damage to the house in doing so. The deceased tried to grab the Commander's firearm and they struggled for it. The purpose of the trip to the deceased was to kill him. The applicant shot at him and killed him with a firearm loaded with ammunition both of which she was in unlawful possession, at that time.
Clearly her activities were of a political nature and we are satisfied that she has complied with the requirements of the Act. amnesty is consequently GRANTED for the murder of Thabiso Mkoteli, malicious injury to property causing damage to the Mkoteli homestead and the unlawful possession of a firearm and ammunition.
3. In the application of:
DANIEL MAMESE BOOI - AM7561/97
IDENTITY NUMBER - 730405 5419 038
The applicant applies for amnesty for the murder of a person known as Mr Dabula. He was a member of the SDU in Katlehong area at the time of the incident, during 1992 or 1993.
The applicant testified that as was decided by the community, police informers impeded the quest for freedom and should be killed.
In the case of the deceased, he was also believed to be a member of the IFP and who advanced the conflict between the ANC and the IFP.
The applicant was with his Commander, Jabu Nkosi, when some of his SDU colleagues arrived with the deceased. He went to fetch a firearm and proceeded to shoot the de ceased who died as a result. He shot him for the reasons set out above. The firearm and ammunition was unlawfully in his possession.
We are satisfied that the applicant has complied with the Act and consequently amnesty is GRANTED for the murder of Mr Dabula and for the unlawful possession of the firearm and ammunition.
4. In the application of:-
SIPHO ALBERT MKHONTO - AM7012/97
IDENTITY NUMBER - 680905 0433 6083
The applicant applies for amnesty for the murder of Absalom Booi Shozi and the unlawful possession of a firearm and ammunition. He was a member of the SDU in the area at the material time. The deceased was regarded as a leading figure of the IFP, directly involved in fuelling the conflict between the ANC and IFP. The community had sanctioned the death of any such person.
During July 1993 the applicant saw the deceased and wet to fetch a firearm. The applicant was with one of his colleagues and they looked for the deceased knowing he was in the vicinity. When he was seen, he was shot and died as a result.
We are satisfied that the applicant has complied with the Act and consequently amnesty is GRANTED for the murder of Absalom Booi Shozi and for the unlawful possession of a firearm and ammunition.
5. In the application of:-
THULANI VINCENT NHLAPHO - AM7011/97
IDENTITY NUMBER - 706011 5998 080
Applicant seeks amnesty for the following acts:
(a) Murder of one Mr Ngcobo and
(b) Malicious injury to property in respect of Mr Frank Ngcobo's premises.
The applicant was a SDU member in Radebe Section, Katlehong. He joined the SDU in 1993 and his Commander was Quango Hluthwa. He further testified that he was a member of the ANC at that time.
He testified to the killing of one Mr Ngcobo, stating that there had been a meeting of the Section Commanders and the community, where discussions concerning IFP members and their activities ...
Mr Ngcobo was identified as one of these people and the gathering decided they wished to have him brought to the meeting to discuss his case.
Hluthwa ordered the applicant to go to Mr Ngcobo's house and request that Ngcobo attends the meeting. He was to return with Mr Ngcobo. If Ngcobo resisted, applicant was authorised to kill him.
When the applicant arrived at Mr Ngcobo's home, he found that Mr Ngcobo had as yet not returned from work. He left a message with Mr Ngcobo's sons and went back to the meeting to report on what had transpired. He then left the meeting, but came across Mr Ngcobo, returning from work. He ran back to the meeting to report this, and was told to get a weapon from one Elijah and proceeded to fetch Mr Ngcobo.
Applicant was given a gun, which he carried to Ngcobo's house. Ngcobo refused to accompany him to the meeting and went into his house with his son, locking the door behind him.
In line with his instructions, applicant shot through the door in an attempt to kill Ngcobo. He heard a cry, thinking he had struck Ngcobo, left, only to be told later that in fact Ngcobo's son, not Ngcobo, had been struck.
He then took another firearm from Sipho and returned to Ngcobo's house where he once again shot at Ngcobo, killing him. His explanation for returning to kill Ngcobo was that he had been ordered to kill Ngcobo should he refuse to go to the meeting. In line with this order, he knew he had to go back and complete the operation.
Once this was accomplished, he gave a report to his Commander.
The Committee is satisfied that in the given circumstances of the political conflict and the general situation regarding political opponents and their activities within the community, orders such as the one given to the applicant were not only given, but executed by SDU members.
The political objective was to preserve the integrity of members of the community and promote the cause of the SDU's and the political party to which they were affiliated.
In the premises, the Committee is satisfied that the requirements of the Act have been complied with, and amnesty is GRANTED in respect of:-
(a) the murder of Mr Ngcobo;
(b) the unlawful possession of firearms and ammunition.
Mr Frank Ngcobo is declared a victim in respect of the damage caused to the house and the matter is referred to the Rehabilitation and Reparation Committee for consideration.
6. In the application of:-
SIPHO JAPHTA MADUNA - AM5475/97
IDENTITY NUMBER - 661011 5550 098
Applicant seeks amnesty for:-
(a) murder of one Mxolisi Twala in 1993;
(b) murder of an undetermined number of people in a shack at Mngadi Section, Thokoza in 1993;
(c) arson in respect of the burning of the shack at Mngadi Section in 1993;
(d) the attempted murder of an undetermined number of persons occupying a house at the corner of Radebe and Mngadi Sections in 1993;
(e) the malicious injury to the house at the corner of Radebe and Mngadi Section in 1993;
(f) the bombing and damage to a portion of Buyafuthi hostel in 1994;
(g) attempted murder of an undetermined number of occupants of Buyafuthi hostel in 1994;
(h) the attempted murder of an undetermined number of persons occupying Mshayazafe hostel in early 1994;
(i) the malicious injury to property caused by Mshayazafe hostel in early 1994;
(j) the dealing in and the distribution of firearms and ammunition;
(k) the unlawful possession of firearms and ammunition between 1992 and 1994.
Applicant joined the SDU in 1990 and participated in SDU activities in his Section, ie Mavimbela Section, and in the nearby Radebe Section. His Commander was Mzwandile Mbokani.
RE : MZOLISI TWALA
This incident occurred in 1993 at Radebe Section.
Twala was known to be a member of the IFP. IFP members were seen regularly visiting Twala at his home and there was a general bona fide belief that he was one of the central figures in the conflict. This matter was discussed at a civic association meeting. As a result of these discussions a decision was taken by the gathering that Twala should be killed.
Mbokani advised applicant as to Twala's whereabouts, and instructed him to kill Twala. Applicant went to where Twala was and asked to talk with him. He and Twala walked to a nearby veld where applicant told Twala that he had been sent to kill him. During their discussion, applicant testified, Twala admitted to being a member f the IFP, but said he was prepared to change and become a member of the SDU movement. On being asked, however, if he would, as an SDU member, be prepared to kill his father who was an IFP member, Twala said no. This seems to have been designed to test Twala's new found loyalty.
To applicant, who knew of many killings such as this from both sides of the political divide in Katlehong, this indicated that Twala would never change. In line with his instructions, he then shot and killed him.
RE : MURDERS AND ARSON AT MNGADI SECTION
This incident concerned the killing of IFP members/supporters who had gathered in a shack at Mngadi Section in 1993. This shack was situated in an IFP dominated area, and known to be used by IFP members as a base. Each time there was a confrontation with the local residents, the IFP attackers would take refuge at this base. On this particular day, they once again attacked the community and fled to these shacks. The applicant and other SDU members observed this, and when the opportunity arose, attacked the particular shack in which these IFP members had taken refuge. They fired into the shack, and applicant testified that as the door flew open, he observed a number of people laying dead on the floor. After the shooting, the shack was set alight. Thereafter the applicant and his fellow SDU members ran away. Some of the other shacks also burnt down.
RE: ATTEMPTED MURDERS AND ARSON AT THE CORNER OF RADEBE AND MNGADI SECTIONS.
This incident concerns the attempted murders of persons occupying a house at the corner of Radebe and Mngadi Sections, and the damage to the house in 1993.
Applicant testified that they had been fighting with the IFP in and around that area. They dispersed when soldiers arrived. They had, however, observed the house that two of their opponents had gone into. When they returned after the soldiers had left, they threw a RD 5 handgrenade into the house, and ran away. Applicant was in the company of his Commander, Mbokani, during this incident. He cannot say if there was any fatality that resulted. The house was partly burnt.
RE : ATTACK AND ATTEMPTED MURDERS AT BUYAFUTHI HOSTEL
This incident occurred in the first quarter of 1994. One Sam told the applicant that the two of them had been selected to execute a mission on behalf of the SDU. When they met at the appointed meeting place, the target was identified to applicant. It was the Buyafuthi hostel where residents were IFP members and supporters.
In terms of a plan, the applicant was given an RPG handgrenade which he loaded and used in an offensive action against the hostel and its occupants. Thereafter he and the three SDU members he was with, left.
The reason for the attack, he explained, was that the residents of Katlehong wanted to have those hostels removed as the inmates constantly attacked and harassed the community. Further, these hostels were known to be used as a base by the armed wing of the IFP, which was in political conflict with them. The applicant does not know if there was any fatality though this was intended. The building was damaged in the process.
RE : ATTACK AND ATTEMPTED MURDERS AT MSHAYAZAFE HOSTEL
This incident occurred in early 1994, just before the general elections of April 1994. A large number of SDU formations participated in the fight at Mshayazafe hostel. It was one of the bigger battles of the Thokoza/Katlehong SDU's against the IFP members who occupied the hostels and used these as bases. The applicant was armed with an AK47, which he used to fire at opponents. He also used an RPG7 in this attack. Many were injured. The hostel was damaged. He does not know of any fatality, though this was intended.
RE : DEALING IN AND DISTRIBUTING FIREARMS AND AMMUNITION
The applicant testified that at one stage he was asked by the community to accompany one Michael to Mozambique where they were to purchase firearms for use by the community. In Mozambique they purchased a large quantity of weapons, which were to be used by the SDU's. They were able to bring 12 x AK47 rifles and 5 x G3 arms into the country, as well as ammunition for these. Some RPG7 handgrenades and some pistols were left in Messina because of transport difficulties. The weapons were handed over to Commander Mbokani for distribution.
RE : UNLAWFUL POSSESSION OF FIREARM AND AMMUNITION
During the above-mentioned incidents, the applicant unlawfully possessed arms and ammunition in contravention of the law relating to arms and ammunition.
The Committee is satisfied that the acts for which the applicant seeks amnesty were acts executed with the political objective of protecting the community and promoting the interests of the African National Congress to which the SDU's were affiliated. We were satisfied that he has complied with the requirements of the Act and consequently amnesty is GRANTED for:-
1. The murder of Mxolisi Twala in 1993;
2. The murders of an undetermined number of people in a shack at Mngadi Section, Thokoza in 1993;
3. Arson in respect of the burning of the shack at Mngadi Section in 1993;
4. The attempted murders of an undetermined number of people in the house at the corner of Radebe and Mngadi Sections, Thokoza, in 1993;
5. Malicious injury to property in respect of the house at the corner of Radebe and Mngadi Sections, Thokoza, in 1993;
6. Malicious injury to property in respect of the Buyafuthi hostel in 1994;
7. The attempted murders of an undetermined number of people in the Buyafuthi Hostel in 1994;
8. The attempted murders of an undetermined number of persons at the Mshayazafe hostel in 1994;
9. Malicious injury to property in respect of the damage caused to the Mshayazafe hostel in 1994;
10. Dealing in and the distribution of firearms and ammunition in contravention of the Arms and Ammunition Act;
11. The unlawful possession of firearms and ammunition between 1992 and 1994.
7. In the application of:-
LUCKY THEMBA BUTHELEZI - AM7563/97
IDENTITY NUMBER - 720921 0508 081
The applicant applies for amnesty in respect of an undetermined number of incidents of attempted murder and for the unlawful possession of firearm and ammunition. He joined the SDU in Katlehong in 1993 under the command of Mcowa.
The assessment of the strife in the area lead to the conclusion that the people who attacked residents in the Radebe area was being conducted by members of the IFP. The Buyafuthi hostel was one building where IFP members mostly stayed. The applicant and about twenty of his colleagues launched an attack thereon. The applicant was not the only person who shot into the hostel. They all then ran away. He is unable to say if anyone died but can say an unknown number of persons were injured. Killing the occupants was intended though.
Clearly this whole operation was based on a political motive and the application does fall within the ambit of the Act. He has complied with the requirements of the Act.
The applicant is therefore granted AMNESTY in respect of an undetermined number of incidents of attempted murder and for the unlawful possession of a firearm (AK47) and ammunition.
8. In the application of:
VICTOR PETER MOLOI - AM6419/97
IDENTITY NUMBER - 600311 5805 8
The applicant applies for amnesty in respect of:-
(a) murder;
(b) arson, in that he burned three shacks
(c) malicious injury to property.
He is a member of the ANC and in 1993 he joined the SDU in Katlehong.
The IFP members had attacked the community of Mavimbela Section. The applicant, in a group of sixteen (16) SDU members went to Mavimbela Section in search of IFP members. They found a person who had locked himself in a shack and they kicked the door open. The person (the deceased) was assaulted by the group who used an assortment of weapons including stones. The applicant had an axe which he used to hack the deceased, who died as a result of injuries sustained in the attack.
The applicant then participated in the burning of three (3) shacks belonging to IFP members during this operation.
The Committee is satisfied that the applicant has complied with the requirements of the Act and is GRANTED amnesty for:
(a) murder of an unknown person'
(b) arson in respect of three (3) shacks in the Mavimbela Section;
(c) Malicious injury to property in respect of the door which was broken.
9. In the application of:-
BRUNO SKHOSANA - AM7180/97
IDENTITY NUMBER - 710518 5356 086
The applicant applies for amnesty for three (3) counts of murder and one (1) count of unlawful possession of a firearm and ammunition.
He joined the Self Defence Unit in 1991 or 1992 and first served it in the area known as the Mlangeni Section. Later he was deployed to the area known as the Slovo Section.
In September 1993, at Mlangeni Section, he heard gunshots from the Slovo Section from where he was walking. He returned to it and discovered that his colleagues had captured a known IFP supporter. This person, he said, would often be party to an IFP attack on the residents in the area. He was taken to a particular house where he was stabbed by the others. The applicant was armed with an AK47 rifle at the time.
It seemed that the person was trying to get away despite being stabbed. The applicant then shot him at the base of his head and as a result of which he died. He used a firearm and ammunition without the lawful right to possess these.
Also during September 1993, at Mhlapo Street, the applicant and others were patrolling the area in terms of the SDU practice. A young person, unknown to the applicant and his colleagues, was found in the area. It was discovered that he had come from Natal, as was the case with many of the IFP members.
After questioning him, there was a strong suspicion that he had been recruited to participate in the killing of the residents as this was the normal practice of their political opponents. This in any event, was a bona fide belief amongst the applicant's group.
The person tried to escape at which point the applicant shot at him. The person was injured and died as a result. He did so because he was convinced that this person was destined to advance the cause of the IFP by killing members of the community.
Later in 1993, when the applicant was patrolling the area again, in Slovo Section, a female person was found in what was declared a no-go area. They followed her and discovered that she went to known IFP members who were armed at the time. It became apparent that she had come to stalk the area and give this information to those members of the IFP. On her return, the applicant and his colleagues saw the armed IFP members making preparations for what they honestly thought would be an attack on them. They took evasive action.
Eventually they cornered the lady who said she was looking for a church. They watched her after giving her directions to this particular church. She did not go there but in the direction of where the members of the IFP generally stayed.
This generated the bona fide belief that the lady was in fact a supporter of the IFP involved in planning the violent activities which were directed at the ANC and its allies.
Consequently the applicant chased her and shot her twice as a result of which she died.
The Committee is satisfied that the applicant has complied with the requirements of the Act in respect of all the offences for which amnesty is sought.
In the result, the applicant is GRANTED amnesty in respect of three (3) counts of murder of unknown persons and one (1) count of unlawful possession of a firearm and ammunition.
10. In the application of:-
THAMBISO ZAKWE - AM7312/97
IDENTITY NUMBER - 710527 5623 080
The applicant was a Commander of the Sebokeng SDU. He helped to establish the SDU in 1990 and applies for amnesty in respect of the murder of Joseph Skosana Dlamini (deceased) in January 1993 and one (1) count of unlawful possession of firearms.
The deceased used to stay in Sebokeng. The applicant being in a leadership position, was approached by some of the youths in the area. They were armed with a variety of weapons at the time. They were angry at the deceased.
It appeared that the deceased had committed certain acts with which the community was not at all satisfied. The applicant told them that the leadership of the ANC Youth League had discussed the matter and were attending to it. The youth agreed to stop looking for the deceased, but put the applicant, who was part of the leadership in question, to terms on this issue.
The problems that the deceased caused had a negative impact on the political situation in the area. An assessment of what had already been done indicated that the deceased had not changed his ways.
The applicant then decided that in the nature of things, the community had already decided that persons who stifled the progress of the political quest for freedom, should be killed. The applicant then took his firearm and searched for the deceased. When he found the deceased, he shot and killed him.
As a leader of the SDU, and during the period of 1990 to 1994, the applicant was also the custodian of the weaponry used by the SDU. He did not have the legal rights to possess these. However, he possessed them within the overall political situation of the battles that were in progress.
The Committee is satisfied that the applicant has complied with the requirements of the Act and, in the result, amnesty is GRANTED to him in respect of the murder of Joseph Skosana Dlamini and for the unlawful possession of firearms.
Signed at Cape Town on this 10th day of December 1999.
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JUDGE R. PILLAY
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ADV. L. GCABASHE
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MR J.B. SIBANYONI
ADDENDUM
COMMITTEE: Judge Pillay
Adv Gcabashe
Mr Sibanyoni
DATE: 02 - 18 February 1999
VENUE: Central Methodist Church
Johannesburg
EVIDENCE LEADER: Adv Steenkamp
