DECISION
The applicant applies for amnesty in respect of the murders of Secrete Nkonsenhle Mkhize and Sibusiso Brian Mlaba which were committed on the 16th of March 1994 at or near Hlanzeni in the district of Camperdown and also of being in the unlawful possession, at the same time and place, of a G3 rifle and ammunition.
The applicant testified that he was a member of the African National Congress, the ANC. He received military training in Transkei and was the commander of a Self-Defence Unit, (SDU), in the Kwaximba area where he resided.
He also acted as a bodyguard for Chief Mlaba.
During 1993 the applicant was warned by one Wiseman Mpanga, who was a policeman, that the police at Hammersdale were looking for him as they knew that he had been trained in the Transkei. Mpongo told him that the police had received such information from Secrete Nkonsenhle Mkhize, (hereinafter referred to as "the 1st deceased") who was a police informer. He was thereafter harassed by the police who searched both his and his girlfriend's house.
The applicant then spoke to a local Umkhonto weSizwe (MK) commander, one Linda Xaba, about the matter. Xaba told him that the policy was that informers should be attacked. The applicant then made a decision to kill the 1st deceased.
During March 1994, the applicant established that the 1st deceased was at the house of Lungisani Mncwabe at Hlanzeni. He and a fellow comrade, one Felamandla Mthethwa, proceeded to Mncwabe's house. The applicant was armed with a G3 rifle and Mthethwa had a .765 pistol in his possession.
On entering the house they came across the 1st deceased in a room. Also in the room was Sibusiso Brian Mlaba (hereinafter referred to as "the 2nd deceased"), who was sitting on a bed. The 2nd deceased was 17 or 18 years of age and was the cousin of the applicant.
The applicant told the 1st deceased that he was experiencing his last day, he cocked his rifle and he shot the 1st deceased in the chest and thigh, thereby killing him.
The 2nd deceased jumped up and tried to climb through a window. Felamandla Mthethwa shot him in the back of the head and killed him. They then both fled from the premises. Felamandla Mthethwa told the applicant that he shot the 2nd deceased in order to prevent him from reporting the murder of the 1st deceased to the police. The applicant believed that Mthethwa did the right thing by killing the 2nd deceased.
The evidence of the incident before this Committee differs substantially from that which was led at the applicant's trial. At the trial the said Mthethwa was used as a state witness. In terms of his evidence as well as that of Lungisani Mncwabe, who was an eyewitness, the applicant shot and killed both the deceased persons. There was also no mention made at the trial of the 1st deceased being killed for reason that he was an informer. The applicant denied that he shot any of the deceased persons and stated that it was Mthethwa who shot them.
The applicant testified at this hearing that he did not tell the truth at his trial as he wanted to avoid being convicted. The motive for the killing at the trial is unclear.
The applicant was the only person to testify at the hearing. Felomandla Mthethwa is deceased and Lungisani Mncwabe elected not to testify. In considering the evidence of the applicant we have taken into account the fact that he is not averse to telling untruths when giving evidence under oath and that the version of the killing of the deceased persons was different at the trial.
We, after careful consideration, accept the applicant's explanation that the reason for killing the 1st deceased was because he was an informer. We also accept that during those turbulent and violent times it was the policy of both MK and the ANC SDUs to kill informers.
We are accordingly satisfied that both the applicant and Felomandla Mthethwa went to the Mncwabe house with the common intent of killing the 1st deceased and that the murder of the 1st deceased was an act associated with a political objective committed in the course of the conflicts of the past.
There was, however, no common purpose between the applicant and Felomandla Mthethwa to kill the 2nd deceased. It is clear from the evidence before us that the 2nd deceased was not killed in the so-called crossfire. He, on applicant's version, was intentionally shot and killed by Mthethwa without any forewarning or consultation with the applicant. The mere fact that the applicant agreed with Mthethwa's explanation for killing the 2nd deceased dose not make the applicant a perpetrator or, on his version, responsible for the death of the 2nd deceased, notwithstanding the fact that he was Mthethwa's commander.
The 2nd deceased was an entirely innocent victim. He resided in an ANC area and there is nothing to suggest that he was a political opponent of either applicant or Mthethwa. When the applicant saw that the 1st deceased was in the company of the 2nd deceased he could have taken steps to avoid killing the 1st deceased in the presence of an eyewitness. Even if such steps could not have been taken, the killing of 1st deceased was not so essential as to justify the killing of the 2nd deceased as well.
We are therefore, of the view that it would be incorrect to adopt the approach that the murder of the 2nd deceased was committed with a political objective, that the whole incident was political and that the applicant should accordingly be granted amnesty in respect of the killing of the 2nd deceased.
We are, in the circumstances not satisfied that the murder of the 2nd deceased was an act associated with a political objective in terms of the criteria set out in the provisions of Section 20 of the Promotion of National Unity and Reconciliation Act, no.34 of 1995.
The applicant is therefore GRANTED amnesty in respect of:
1. The murder of Secrete Nkonsenhle Mkhize on 16 March 1994 at or near Hlanyeni in regard to which the applicant was convicted and sentenced to undergo 20 years imprisonment in the Natal Provincial Division of the then Supreme Court; and
2. the unlawful possession of a G3 rifle and ammunition in regard to which the applicant was convicted and sentenced to undergo 5 years imprisonment in the Natal Provincial Division of the then Supreme Court.
The applicant's application for amnesty in respect of the murder of Sibusiso Brian Mlaba in regard to which he was convicted and sentenced to undergo 20 years of imprisonment in the Natal Provincial Division of the then Supreme Court is REFUSED.
We are of the opinion that the immediate family of Secrete Nkonsenhle Mkhize are victims and this matter is referred to the Committee on Reparation and Rehabilitation for consideration in terms of the Act.
Signed at Cape Town this the 9th day of February 2000.
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JUDGE S MILLER
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J B SIBANYONI
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MR I LAX
