DECISION
The applicant applies for amnesty in terms of Section 18 of Act 34 of 1995 in respect of the following offences for which he was sentenced to 15 years imprisonment:
a. the murder of Samuel Njabulo Ndlovela at Boboyi in the district of Port Shepstone on the 24th April 1993;
b. the murder of Brian John Bazley at the same place and on the same date as mentioned in (a) above;
c. the attempted murder of Mfanele Zulu, Dumisani Wonderboy Yinda and Mbulelo Patrick Sebenza on the same date and place.
The applicant was a card carrying member of the Inkatha Freedom Party (IFP) and resided at Boboyi in the district of Port Shepstone in KwaZulu Natal. He testified that there was violence (conflict) between the IFP and the ANC in the area since the mid 80's; that the people of Boboyi knew each other's political affiliation because they grew up together and attended the same school.
He further gave evidence that on Saturday 24th April 1993 he boarded a taxi at Kwakanjaza to the Port Shepstone taxi rank intending to proceed to Durban, that he could not continue with his journey, because at Port Shepstone taxi rank he met a group of ANC members who swore at him calling him "Uklova" which term is derogatory to IFP members; that he abandoned his journey and returned to Boboyi; and that the group of ANC members boarded another taxi and followed him.
Applicant alighted at Boboyi and walked towards his home. When he was near the Sister Joan's School he heard people swearing at him. Looking back he noticed that it was the same group he met at Port Shepstone. He decided to fight the group.
He testified that he was far from the group when they swore at him. The group did realise that he would pretend as if he was walking away. Instead he used the trees and the school as cover. He grabbed a young boy and using him as a shield walked up to the group, initially spoke to them and then attacked them by shooting at them. The applicant conceded that the incident took place under a tree and did not dispute the medical evidence that Brian was shot whilst in a sitting position. He was, in our opinion, an unsatisfactory and unreliable witness.
He shot the two men because he assumed they were part of the group who had sworn at him in town, although he did not recognise them as such. He knew then and under cross-examination admitted that he had lost his temper; he also admitted that both the deceased were unarmed.
The Evidence Leader called Mbulelo Patrick Sebenza to give evidence. He testified that on the day in question he and Brian Bazley passed the applicant's home and went to town, Port Shepstone. The applicant found them at the butchery where they braaied meat and talked. There was no quarrel or conflict between them. They then parted ways. While the witness and Brian boarded a taxi at Port Shepstone to return to KwaKanjaza, they met and were accompanied by Mr Ndovela and Mr Mtango Zulu. On arrival at KwaKanjaza they bought meat and went to a girlfriend's room. They requested someone to cook the meat for them. They went outside the room and sat under a tree in the shade because it was hot on that day. Shantini Zulu and others joined them.
Mr Sebenza further testified that whilst they were waiting for the food to cook, the applicant, armed with a gun, arrived holding a young boy by the arm and said:
"Hey, you sons of bitches, do you know this boy?"
Ndovela looked at the applicant who asked what Ndovela was looking at and then he started firing. Mr Sebenza also testified that there was no conflict between Brian and him on the one hand and the applicant on the other hand. He added that he was a member of the ANC but that Brian was not a member of any political organisation.
Applicant's version is totally contradicted by Mr Sebenza's evidence. It is difficult to understand applicant's reason for his conduct on the day in question. The Committee has been told about the conflict which existed at the material time between the ANC and the IFP in the area but that was no open war or violence. Applicant testified about ANC areas being distinct from IFP areas. Mr Sebenza stated that there was no demarcation or no-go areas and that he walked past the applicant's house that morning.
The applicant's evidence is that a group of ANC members swore at him in town and threatened to kill him; that the same group followed him to Boboyi. He lost his temper and decided to attack. However, he is unable to identify any person at Boboyi as having been present in town.
Having regard to the evidence tendered before us, and in the light of Mr Sebenza's testimony we are not satisfied that the applicant has made full disclosure of all material facts and furthermore that the acts applied for are acts associated with a political objective. Even if we had accepted his version his reaction to the alleged insults was grossly disproportionate.
The applicant's application for amnesty is therefore REFUSED.
SIGNED AT CAPE TOWN ON THIS
: DAY OF
: 2000.
JUDGE A WILSON
MR I LAX
MR J B SIBANYONI
