DISSENTING DECISION
______________________________________________________This is an application for amnesty in terms of the Promotion of National Unity and Reconciliation Act, 34 of 1995 ("the Act"). The applicant is currently serving 45 years imprisonment, having been convicted of 13 counts of murder, 12 counts of attempted murder and arson. In the evening of the 12th January 1990, the applicant led a mob of about 200 to 300 supporters to attack Dingindawo Xulu's hut with firearms and petrol bombs. Xulu, who has since deceased, managed to escape the fury of the mob but his wife was one of those that were killed. It is common cause that the majority of the victims were women and very young children who were screaming when the house was being attacked. Worse of all, the mob prevented all people from leaving the hut whilst being set alight. Shots were fired indiscriminately at the occupants of the house who were holding a vigil to mourn the death of two sons of Xulu who had been killed by ANC/UDF supporters.
I very respectfully regret to say I am unable to agree with the conclusion of my colleagues that amnesty should be refused in this matter. This case has exercised my mind for some months and after careful reflection, I am still not persuaded that amnesty should be denied. I now intend to give full reasons for my disagreement. Because of the reasons for my view in the matter, it is necessary to traverse the evidence at inordinate length to highlight and emphasis important facts. The applicant was the only witness to testify in support of his application. Xamukwakhe Khuzwayo, the grandson of Xulu (Makhathini), testified in opposition and nothing of importance emerged from his evidence. Significantly, he testified that being too young at the time of the occurrence of the incident and events referred to by the applicant, he was not abreast with all the politics of the day. At the end of his testimony, the applicant's version relative to the political background remained unshaken. His evidence really had nothing to do with the actual attack.
Having regard to the political context and all the evidence that was adduced, it is my considered opinion that amnesty should be granted. Refusing amnesty in this case would defeat the fundamental policy of the Act to pardon politically motivated crimes that were committed in the course of the conflicts of the past. In order to ascertain the purpose of the said policy it is worth while to peruse the epilogue to the Republic of South Africa Constitution Act 200 of 1993 and the preamble to the Act.
The period during which this incident took place was when there was a violent conflict between members/supporters of the ANC/UDF and IFP in the region of KwaZulu Natal. The applicant was a member of the ANC/UDF faction and vice-chairman of the Cottonlands Crisis Committee. Presently, leaders of the two organisations seem to be working together, at both national and provincial levels and it cannot be controverted that the existing spirit of co-operation and apparent desire to bury the hatchet has gradually filtered down to their followers and respective constituencies. In the result there is today more peace than violence in the KZN province. In the circumstances, granting amnesty to the applicant and in other similar cases may further contribute to reconciliation in the troubled province. Section 20 (4) the Act enjoins the Committee when deciding whether a particular act, omission or offence is an "act associated with a political objective" to take into account the criteria that was applied in the Acts subsequently repealed by Section 48 of the Act. The Acts referred to are the following:-
(1) Indemnity Act No. 35 of 1990;
(2) Indemnity Amendment Act no. 124 of 1992; and
(3) Further Indemnity Act no. 151 of 1992.
The criteria that were decreed in those Acts (see Government Gazette Notice R2625, as published in Government Gazette No. 12834) were virtually the same as those contained in Section 20(3) of the Act. In all these legislative instruments of political transition, including the present Act, proportionality has never been a requirement in the sense of being a hard and fast rule but only a factor to consider, in determining whether the offence committed by the applicant is an "act associated with a political objective". This means that in some cases and in spite of the gruesome nature of the offences committed, proportionality may be overridden by other compelling considerations depending on the tenor of the evidence; the context of the crime and any other relevant fact. Already, since 1990, indemnity and amnesty has been granted and correctly so for very gruesome crimes. Matters that immediately come to mind are the following: Brian Mitchell Case; the Amy Biehl Murder; the St James Church Massacre; the 1994 cold-blooded murder of AWB members in Boputhatswana.
What further fortifies my view in this case is that in terms of Section 2(b)(ii) of the now repealed Act 151 of 1992 the State President, in determining whether a prisoner should be released, had to be of the view that the release of such a person "may (not shall) promote reconciliation and peaceful solutions." This is generally the approach we should take in regard to applications emanating from the KZN ANC/UDF-IFP conflict. Where by accident we happen to make an error, it could be better if we do so in favour of granting rather than refusing amnesty, bearing in mind our delicate task to help the country through the transition and its lofty objective of reconciliation.
In my mind there is no doubt that the applicant has met the essential requirements of Section 20(1), namely that he acted with a political objective and that he has given a full disclosure of all relevant facts. he has been very frank and honest about his role and did not try to minimise and humanise it. It is clear that he and his group acted out of extreme anger and fear for Xulu and other IFP members who, they believed, were going to attack all UDF supporters in retaliation for the murder of Xulu's sons. It would seem that they were so disgusted at the fact that residents were forced by Xulu and IFP supporters to join and donate money. According to the Chairperson, this intimidation and violence had been going on for some time. At times dead bodies of ANC supporters would be found lying in open spaces and it was widely believed that Xulu was behind the killings. The applicant says women were also killed by IFP supporters but is unsure if children were also attacked in his particular area. Under cross-examination he was unable to give names and numbers of victims of such attacks. Obviously, the incident having happened several years ago, his failure of memory in this regarded should not be counted against him. In addition to being an office bearer of the Crisis Committee which was established precisely to deal with the IFP problem, the applicant also had a spaza shop to run and they did not keep records of victims. he also says before the incident when passing by Xulu's house he used to see those who refused to join IFP being sjamboked by Xulu and his compatriots. This must have engendered an immense hatred for Xulu and his place.
In his own words, the Chairperson says their aim was "to take (a) defensive action in anticipation of an attack by him (Xulu) and his ("IFP") supporters". He further explains that: "Our aim was to attack Mahlathini's (Xulu) house before he could attack us." The information had been obtained from one ANC/UDF female members, a marshall, Zethu Makhoba and an ANC/UDF aligned "boys" from Xulu's clan. They had been told that IFP supporters were gathering at Xulu's house in the night of the wake preparing to launch an attack. They had also been told that there were women and children there. When they met as members of the Crisis Committee the issue of the safety of women and children was raised but could not be resolved. it was decided that it would be kept in abeyance for discussion at the general meeting which was held the same night in an open space. About 200-300 supporters attended. At that stage the Committee had already decided that Xulu's house be attacked. At the general meeting and after some discussion, the majority view prevailed to "destroy" Xulu's hut and everyone there. They all proceeded to the house. But before launching the attack one of the members of the mob took out some medicine ("umuthi") and said that because IFP members were using "umuthi", they should also do the same. This was to ensure that none of them would suffer a "guilty conscience". They medicine would also make them "brave". It was sprinkled on everyone. This evidence accentuates that the applicant and his group appreciated the gruesome nature of the crime they were about to commit but in the circumstances felt they had no choice. In the thinking of the mob ("de-individuation") and the boiling emotions of the moment, human reasoning was superseded by fear and desire for self-preservation. The mob must have deeply hated Xulu and the IFP to commit such a horrific act. The applicant happens to have been one of those who were trapped in the cycle of violence. It is clear from the evidence that the decision was not easily taken. That women and children were killed just like in many other tragedies in the shameful past of this country, is something to be deeply regretted. Although this is not a requirement for amnesty, the applicant has already expressed his remorse and there has not been a suggestion that it is not a genuine remorse.
There is another reason why I think amnesty should be granted in this matter. Presently the applicant is the only one who is still languishing in prison for the incident. All those who were convicted and sentenced with him were released, ostensibly on the recommendations of the Indemnity Committee and that is confirmed in the affidavit of his fellow perpetrator Jabulani Attwell Ntanzi. In his deposition he says he and two others who have since deceased were released from prison on 16 June 1994. Unfortunately for the applicant he never applied for indemnity. It is not clear why he did not do so. If indemnity was granted, as it seems to be the case, the Committee obviously made a finding that the crimes committed were politically motivated. That was the function of the said Committee. The fact that the records cannot be traced should not prejudice the applicant, bearing in mind that the material contents of Ntanzi's affidavit remain uncontradicted. There has not been the vaguest attempt in that direction.
SIGNED AT .................. this ...... day of .................. 19....
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ADV NTSIKELELO SANDI
