DECISION
______________________________________________________
The applicant and three others were convicted on 13 counts of attempted murder and arson on 16th April 1993. He was sentenced to a total of 45 years imprisonment. he now applies for amnesty for the above convictions. The offences were committed on the night of 12th January 1990 at or near Mahlabathini, Cottonlands in the district of Inanda when the house of Dingidawo Xulu was attacked and destroyed by fire. Before considering the evidence of the attack and its consequences, it is appropriate to refer briefly to the general background against which the offences were committed. The residents of Cottonlands were a divided community. They were either supporters of the UDF or supporters of the IFP. From time to time the political conflict between these groups resulted in acts of violence. An affidavit sworn to by the applicant on 7th May 1999 was handed in by his counsel. Applicant gave oral evidence in which he confirmed the contents of his affidavit. According to his evidence, the IFP had embarked on a process of removing ANC supporters from Cottonlands. People were forced to join the IFP against their will and those who refused were harassed and told to leave the area. The IFP demanded payment from the head of each household, an amount of R20.00 per month. Their wives were required to pay R10.00 per month. They were told that the money was to be sent to Ulundi to pay for the activities of the IFP. All this was done under the leadership of Xulu who was the Chairman of the IFP in the area. Applicant said further that he and some others who operated tuck shop businesses from their homes were sometimes forced by Xulu to close their businesses and attend IFP meetings. To meet these challenges the supporters of the ANC formed themselves into the Cottonlands Crisis Committee. There were times when meetings convened by the ANC supporters were disrupted by the South African Police assisted by the IFP leaders.
On Tuesday, before the 12th January 1990, two of Xulu's sons, Ngura and Bongani were stabbed to death by some UDF members who had come from Mawoti. According to the evidence of Zamukwakhe Khuzwayo, a grandson of Xulu, he, Ngura and Bongani were UDF supporters. Despite this, Ngura and Bongani were attacked and killed because one of the attackers regarded them as enemies of the UDF.
According to the evidence of the applicant, some members of the Cottonlands Crisis Committee said that they had heard that Xulu was going to avenge the death of his sons by launching a counter attack against them. On the night of 12th January, a general meeting of the Crisis Committee was held. Among the things that were discussed was a suggestion that there should be an attack on Xulu's house as a defensive action against a possible attack by Xulu and his supporters. Some were of the view that Xulu and his family should be killed and his house and belongings should be destroyed. There were others who said that Xulu's children should not be killed. However, the majority decided that the whole family should be killed that very evening.
After ascertaining that Xulu and his family were at home, a large group of people went to Xulu's house and surrounded it. Some of them were armed with knives while others carried stones. Mfanaje Makhathini, Bongani Mngagi and applicant carried firearms. Applicant also carried 5 litres of petrol. Applicant kicked open the door and the three of them entered the room and opened fire on the inmates. Applicant then sprinkled petrol on the walls and on the blankets of those in the rooms, even though one of the rooms was occupied by little children and applicant heard their voices and their cries. Xulu and his son-in-law, Muntu Elia Khuzwayo, were in one of the out-rooms of the house and managed to escape from the attackers.
The attackers left behind death and destruction. Of the 13 people who lost their lives, 9 were very young. Some were 1 year, 3 years, 5 years and 7 years of age. The other four were; Xulu's wife Nelsisiwe who had been hacked to death outside the house; Xulu's son, Jabulani; his daughter Labuleni Khuzwayo, the wife of Muntu Khuzwayo and Maxulu Mhlongo, a Sangoma who had come to mourn with the family.
The Xulu's and Khuzwayo's had gathered that day to mourn the death of Xulu's two sons. The family was holding a vigil at night when the attack occurred. Applicant said that this mother wanted to attend the vigil but he dissuaded her from doing so.
It was argued on behalf of the applicant that he acted as a member of the UDF and committed the offences in furtherance of political decision taken at a public meeting. It is clear that the purpose of the attack was to forestall any action by Xulu and his followers to avenge the death of his sons. Such action may or may not have been taken by Xulu. The decision to kill Xulu and his entire family could never be described as "defensive action."
Moreover, it could not be said that the attack was directed against an IFP stronghold. For him to succeed the applicant has to prove that the offences he committed were associated with a political objective as required by Section 20(3) of the Promotion of Truth and National Reconciliation Act No. 34 of 1995. The criteria set out in sub-sections (c) and (f) of section 20(3) read as follows:
(c) the legal and factual nature of the act, omission or offence, including the gravity of the act, omission or offence;
(d) the relationship between the act, omission or offence and the political objective pursued and in particular the directness and proximity of the relationship and the proportionality of the act, omission or offence to the objective pursued.
Even if the applicant was driven by some vague political motive, the nature and gravity of the offences committed by him were totally disproportionate to any political objective. The Committee is therefore of the view that he is not entitled to amnesty and his application is REFUSED.
After the evidence in this matter was concluded, the Committee was informed that three persons who had been convicted with the applicant namely:-
Jabulani Atwell Ntanzi, Emmanuel Bongani Mngadi and Bheki Joel Gumede, had been granted indemnity. The applicant has not applied for indemnity.
Counsel for the applicant and the Evidence Leader, Ms Mntanga, undertook to make an appropriate enquiry into the matter. Some weeks later we received a batch of documents. Except for what purports to be an affidavit by Jabulani Gilbert Ntanzi dated 1st June 1999, the other documents were of little or no help. However, according to Ntanzi's affidavit he and the two others were released from prison on 16th June 1994 after their application for indemnity had been granted in terms of Section 3 of the further Indemnity Act of 1992. he says that both Mgnagi and Gumede are deceased.
Enquiries made by Ms Mntanga could reveal no information whatsoever about the matter. Neither she not the applicant's attorney have been able to take the matter any further. The situation is that the Committee has not seen any official document recording the decision of the Indemnity Council. If indemnity was in fact granted to these individuals, we do not know the reason for such a decision.
SIGNED AT ............... this .... day of .................. 19....
____________________________
____________________________
___________________________
