DECISION
All the applications in this matter relate to the murder of Sicelo Dlomo, a student activist, on 24 January 1988 at Emndeni in Soweto. The applicants were members of Umkhonto weSizwe (MK), the then military wing of the African National Congress (ANC) when the events in question occurred. The deceased was killed because it was suspected that he was a police informer who spied on them and relayed information to the police, whilst they were all, including the deceased, members of an underground MK unit. Dube who had received military training under the ANC acted as the Commander of the unit. The crisp question here is whether the applicants bona fide believed that the deceased was a police informer, and not whether the deceased was in fact such an informer. The applicants say the action was necessary to protect MK underground activists and its structures. Dube, who shot and killed the deceased, says he had no order from his superiors but acted on his own initiative. We commence by sketching out the background of the deceased.
The deceased was an 18 year-old youth whose involvement in the activities of the Soweto Students Congress (SSC) and other organisations attracted the attention and interest of members of the South African Security Police (SAP). On more than one occasion he was detained and maltreated by the Security Police. He also worked as a voluntary worker for the Detainees’ Parents Support Committee (DPSC). In 1986 he appeared on an overseas television programme on the detention and treatment of children under the State of Emergency.
His murder caused a widespread outcry and it was generally suspected that it was the work of members of the Security Police. No arrests were made for his murder and the applicants, some of whom were well-known to his family, came out on their own and confessed that they murdered the deceased. There can be no doubt that the deceased was an activist youth of considerable profile and repute due to his role in the affairs of the abovementioned organisations. We now proceed to deal with the evidence. We should also mention that the applications are being strenuously opposed by the family of the deceased.
Dube, who is now a Captain in the South African National Defence Force (SANDF), came into the country between 1986 and 1987, having been deployed by the ANC to mobilise its support by recruiting and training supporters. He set up several underground cells in Soweto and one of the members he recruited was the deceased, who was introduced to him by Tshabalala who knew him from SSC circles. Makhubu had also recommended him. They all received some military training for protection and securing of the cell.
At the beginning all went very well and he had a good relationship with the deceased. At a later stage, he as commander of several units, had many tasks to perform. These necessitated that he went from one place to another. On many of these occasions he would find the deceased following him. At first he met him at Diepkloof and he did not ask him what he was doing there, and the second time was at Maponya. When he asked him what he was doing there he said he was just moving around. He reported this to his co-applicants. The deceased would also try to hide himself when he saw him. Matters reached a point of culmination when the deceased was arrested and released on the same day although he had given him a handgrenade and a Makarov pistol. He found it very surprising that the deceased could be released so soon, because at that time detainees would generally be held for long periods of detention, more so when found in possession of arms of war. He believed that a detainee would only have been released if he had agreed to be a police informer and work for the police against his (former) comrades. He concluded that the deceased must have sold out.
After his release the deceased did not come to report to their cell what had happened whilst in detention. Instead, he disappeared for a long time without making any contact with them. Dube says he asked his co-applicants to tell him that he urgently wanted to see him. It was against security rules for a member to disappear without telling the others where he was going and why. His disappearance was a matter of concern to all the applicants. He resurfaced after plus-minus three months.
On a certain day Dube was visiting his co-applicants at Makhubu’s home. It was late in the afternoon when the deceased came. Dube says he was shocked and afraid to see him there. They spoke with him outside. Before they spoke Dube sent Makhubu to go and telephone other members of the cell, namely Tshabalala and Zungu. He remained with the deceased. Whilst questioning him as to where he had been all the time, he saw some object bulging out of his pocket. He wanted to know from him what it was. The deceased said it was nothing. Dube quickly took it out and noticed that it looked like a walkie-talkie type of device. He says he then threw it to the ground in order to destroy it, as he was concerned that his conversation with the deceased was being transmitted to the Security Police by the device. When Makhubu came out of the house form where he had telephoned the others, he showed him the device.
Dube decided that they should immediately move away from Makhubu’s house as it was no longer safe there. He also came to the conclusion that the deceased should be killed, because he was dangerous. The deceased had allegedly admitted to him that the device belonged to the police and that they had recruited him. He also confirmed that the weapons he had been given had been taken by the police. Uppermost in his mind at that stage was the security of the people he was working with underground, and the ANC covert operations at large He personally also had to be very careful about his own security to avoid police arrest. He had no time to contact his superiors in the MK because he was confronted with an emergency situation. In general he had authority to use his own discretion and take decisions when facing situations which threatened the entire network of the ANC. He instructed Makhubu to go and fetch the two others and, meanwhile, he proceeded with the deceased to a nearby school. The deceased did not resist. He had already told Makhubu where they were going to. He had also told Makhubu that the deceased would have to be killed because he was a police informer. When Makhubu, Tshabalala and Zungu joined them at the school, Dube told the deceased that they should leave the school and move away from the residential area. At a certain point he told the deceased to sit down, which he did. He was not aware that he was going to be killed. Dube instructed Makhubu to shoot the deceased, which he did, using his own firearm. The deceased died instantly. Dube says Tshabalala and Zungu look very surprised at what had happened but when he explained to them, they accepted it. He reminded them that the deceased had initially disappeared and that he found a police device in his possession. He told them that the incident was kept secret. The elimination took place at about 22h000. After several months he gave a report to his superiors when in Lusaka.
Under cross-examination Dube was asked why he did not kill the deceased himself. He said it was because Makhubu was the most senior member of the unit, and also acted as Commander in his absence. It was also put to Dube and his co-applicants that the deceased had a certain amount of money in his possession. This they all denied and said no money was found in his possession and that he was not killed for money.
Tshabalala, Makhubu and Zungu testified and their evidence generally coincided with Dube’s testimony. Although there were some discrepancies, these are not of such a nature that they amount to material contradictions. They say they agreed with Dube that the killing of the deceased was the right thing to do in the circumstances and associated themselves with it. Under cross-examination it was put to Dube that on a certain day the deceased was arrested on his way to school. The police had pressurised the deceased to work as an informer, by assaulting and kicking him. The deceased, to stop the assaults, agreed to be an informer, but was not going to work as such. He only wanted to be released. On his release he went to see his attorney to report the entire incident with the view to instituting a civil claim. He went to stay with one Joe Thlwaile at Hillbrow as he was afraid of the police arresting and detaining him gain. Dube replied that he had no knowledge of the said incident.
Thlwaile later testified and confirmed that the deceased had spent some time at his place. He said at the time he was a DPSC employee and an underground MK operative. He now works for the Military Intelligence unit of the SANDF. Although he had weapons at his place, and this was known to the deceased, his place has never been raided by the police. Again Dube replied that he knew nothing about that and he did not even know Thlwaile for that matter. Thlwaile further testified that on the last day he saw the deceased he had a certain amount of money with him which he was to take to detainees at Baragwanath Hospital. There is no certainty as to how much exactly it was. Mr Richard for the family of the deceased put it as R1000 and Tshabalala said he was told by the deceased that he had a sum of R830 with him. He, however, did not see the money. Earlier the deceased had come to his house. He had a device looking like a "cassette" or "radio" on his waist but he does not know if it is the same as the one that was destroyed by Dube, as he never saw that one.
One of the witnesses who testified, having been called by the family of the deceased, was one Ntombi Jane Mosikere. She worked for DPSC and knew the deceased. Her duties entailed taking statements from ex-detainees and referring these with complaints to doctors and lawyers for assistance. She had dealt with the deceased and his mother during the times of his detention including the last detention when he was released in December 1987. She says it was a common occurrence in those days for the police to pressurise political detainees to agree to be informers before they could be released. She would refer such people to lawyers for assistance and advice. The deceased also reported that under pressure he had agreed to work for the police, but said he was not going to do so and had agreed only to secure his release. It was usually accepted, after debriefing, that such people were not informers at all. Debriefing would reveal that they had no intention of complying with their undertaking to the police and a file would be opened. The deceased was referred to attorney Mr Ayob and a file was kept on the matter. She got to know the deceased very well and had a close relationship with him and his mother who used to tell her about their financial problems. At some stage she even offered the deceased a hiding place, which he refused, as he wanted to stay closer to his grandmother. Her evidence was further that in late 1987 he was arrested by police at DPSC offices and was charged, convicted, and sentenced for unlawful possession of an unlicensed firearm. Then in January 1988 he was arrested at DPSC offices by police who came and identified him as the person who had appeared on a television programme. He was released on about the second day. The last time she spoke with him was on a Saturday in January 1988 when he telephoned her at home and said he wanted to speak with her "urgently" about "something confidential". He wanted to meet her at the DPSC offices. She suggested to him that they would have to meet on Monday as she could not make it that day. The deceased reluctantly agreed and that was the last time she heard from him. He did not say what he wanted to speak with her about. The witness confirms the evidence about "something like a radio" that the deceased used to walk around with on his waist. It had never been suspected to be anything sinister. The deceased used to listen to it openly at the DPSC offices. Further, she has never thought of him as an informer and no one at the DPSC offices or anywhere for that matter, ever thought so.
After considering all evidence we hasten to say that there is no evidence that the deceased was an informer and worked for the Security Police. There is also no evidence that the applicants acted for personal gain or out of malice, ill-will or spite. It would seem that Dube was understandably quite nervous and sensitive about the security of the ANC underground cells and his own safety. When he took the view that the deceased was an informer his co-applicants seem to have simply followed suit without asking questions. On the information available to them which they believed to be reliable we can accept that they came to the decision honestly and accordingly believed they had to take action to protect themselves, the MK and ANC from further police investigations and action. For these reasons it is our view that the offence committed is associated with a political objective. They have also given a full disclosure of all the relevant facts. The evidence also does not suggest that this was an act of robbery.
Amnesty is therefore GRANTED to all the applicants for the murder of Sicelo Dlomo and for any other offences or delicts arising from the murder.
Further, it is recommended to the Reparation and Rehabilitation Committee of the TRC that the next of kin of the deceased be declared victims in terms of the Act.
Signed at Cape Town on this 21st day of February 2000.
_________________ JUDGE A WILSON
_________________ DR W M TSOTSI
_________________ ADV N SANDI
