DECISION
The applicant seeks amnesty for the murder of Ndukuzempi Mkhize at Nyandezulu in Port Shepstone during 1990 for which murder the applicant is currently serving a term of imprisonment at Westville Prison.
At the onset applicant confirmed that pages 1 to 10 of the bundle constitute his application written in his handwriting however, he pointed out that the signature appearing on page 9 is not his. He pointed out that he does not confirm the purported English translation contained on pages 11 to 15. He also denied that he wrote and sent letters forming part of the bundle and marked exhibits "C", "D", "F", "G" and "H". The committee then requested a fresh translation of pages 1 to 10 and this was done and handed in as exhibit "E" which the applicant accepted as the correct translation of his application.
The committee also requested that an investigation and research be conducted as Westville Prison to establish the origin of the disputed documents.
The results of the investigation could not point to applicant as the author of the disputed documents. The committee also dictated certain words to applicant so as to compare his handwriting with the disputed documents. The product was handed in as exhibit "J". This was not helpful because the handwriting of exhibit "J" slightly differed even to the handwriting of pages 1 to 10 which the applicant confirmed as his, especially the way the letter "T" is written. An investigation done at the TRC's offices in Cape Town established that additional applications were received by the TRC (see exhibits "C" and "D") and a separate application number was allocated.
As a result the application testified that his application is based on pages 1 to 10 of the bundle, exhibits "A" and "E". He joined the ANC in 1985 and in 1988 he became a member of UmKhonto WeSizwe, the military wing of the ANC, and served in the operation Vula Unit. He was recruited by Mr Sipho Mkhize and the late Mr Archie Gumede. He underwent military training in the former Transkei and on his return to Port Shepstone he became a commander and a member of the ANC Youth League.
He accounted to Mr Cyril Shezi who was the leader of the ANC in the area.
He testified about the conflict between the ANC and the IFP and that IFP members worked with the police in harassing ANC members by prohibiting them from using recreational facilities and in ambushing them when they came back from meetings and rallies. The applicant also testified that the deceased, Mr Mkhize, when hearing about the death of applicant's eight year old brother, remarked and said that the younger brother would not have died in the car accident if he did not leave him (the deceased). Applicant interpreted this to mean that the deceased caused the death of his younger brother through witchcraft. He further testified that there was a rumour from his family that the deceased practised witchcraft.
A meeting was called, according to the applicant, attended by Mr Shezi and Kenneth Mkhize, the son of the deceased who was then 16 years old. Applicant's testimony is that, after the killing of the deceased was discussed a decision was made that the deceased was a legitimate target and Mr Shezi issued an order that he should be killed, and that Kenneth would pour petrol on him and set him on fire (exhibit "B"). An affidavit was filed by Mr Shezi's legal representative in which he vehemently denies attending such a meeting and giving instructions for the murder of the deceased.
Mr Shezi also denies that he was an operative under Operation Vula. He deposes further that faceless people had a campaign to kill people who practised witchcraft in the South Coast area. The Mass Democratic Movement (MDM) (which the ANC form part of), opposed this campaign and set up committees to stop it successfully. The conflict of which he was aware occurred during the 1990's between the youth on the one hand and the State. The latter used chiefs, the police, the army and the Kits Konstables called "aboblomu" to further its cause.
Kenneth Mkhize testified that he did attend the meeting as he was also a member of the ANC but that he and other young people were at a stage requested to leave the meeting. When his late father's issue was discussed he was no longer present at the meeting.
The applicant states that the reason for killing the deceased was because he bewitched and killed his younger brother; he was a police informer because he used to be seen in the company of the police and that he was an IFP member and was involved in the killing of many comrades. He explains that he made a mistake in his application form to state that the deceased was killed for killing applicant's father.
Assuming for a moment that the deceased was killed for bewitching applicant's younger brother, the committee is not satisfied that witchcraft was used for political purposes and was an act associated with a political objective because the younger brother was only 8 years old and not involved in politics. The killing of the deceased under such circumstance was merely to avenge the death of the younger brother, a factor which is specifically outlawed by the TRC Act.
However, it seems that the applicant is relying on the resolution at the meeting for the elimination of the deceased. According to his estimation he was accompanied by 200 ANC comrades in executing the order issued by Shezi and agreed to by everyone at the meeting.
Kenneth estimates the group to be 50 people.
Shezi elected to submit an affidavit and not to give viva voce evidence and subject himself to cross examination so as to test his denials of issuing the order. Not much weight can be attached to his denials in the face of applicant's version to the contrary.
The committee finds it difficult not to accept that the applicant's act, endorsed by the group of people, was for political reasons.
In the result the committee is satisfied that the test has been complied with in respect of the technical requirements of the Act, that the act is an act associated with a political objective and that the applicant has made a full disclosure of all the material facts.
Accordingly he is GRANTED amnesty for the murder of Ndukuzempi Mkhize at Port Shepstone during 1990.
The committee recommends that the next of kin of the deceased's be declared the victim and is hereby referred to the Reparation and Rehabilitation Committee for its consideration.
SIGNED AT CAPE TOWN THIS THE
: DAY OF
: 2000
: JUDGE A W WILSON
: MR J B SIBANYONI
: ADVOCATE C DE JAGER (SC)
