DECISION
The applicant is 35 years old. Before his arrest and conviction he resided in the Umbombo district. He was employed as a driver for a contractor in Empangeni. He was an IFP member. He used to organise the youth to attend meetings but he did not hold any specific position.
The applicant is applying for amnesty for the killing of Mmenezi Nxumalo who was killed in March 1994. He and his co-accused, Alson Mandlenkosi Mavundla were convicted of murder and both sentenced to 10 years imprisonment.
He now applies for amnesty for these offences.
The applicant testified that in 1992 a certain Simon Zikali started recruiting for the ANC. The applicant knew Simon Zikali as somebody who lived in the area.
He testified that on one occasion in 1992, whilst he was filling petrol at a petrol station, Simon Zikali came to him, pointed a gun at him and told him to go to an ANC meeting. He further told him to come the following day with a R100.00 joining fee. The applicant however did not go to the meeting, instead he went to the Chief to report that Simon Zikali had pointed a gun at him. The Chief said he did not know about such a meeting.
One day in June 1993, Simon Zikali, Gedle Gumede and Mmenezi Nxumalo wanted people to come to the streets to toyi-toyi. They were actually forcing the people to toyi-toyi. The applicant did not comply with this request.
According to the evidence of the applicant, on the 25th December 1993 his brother Gibson Ngubane and cousin Velephi Maluleke were killed in the Jobe area. The applicant says that he saw this happening. The people who killed his brother were a group which was led by Simon Zikali and Mmenezi Nxumalo. He testified that Simon Zikali shot his brother and his cousin. Mmenezi Nxumalo chopped his brother's head. Simon Zikali gave an order to the people to slay the corpses.
Some months later in March 1994 the applicant drove to his brother Epson Ngubane at Ndumo near Mozambique. He bought a gun and ammunition in order to be able to protect himself.
When he came back he found that his house had been burnt. He did not know where his children were and whether or not they were dead. He then met Mavundla and Isaac Masango. The following day they decided that they were going to attack Simon Zikali and his gang at night.
They first went to Simon Zikali's house but did not find him there. They proceeded to Gedle Gumede's house. They attacked him but did not succeed in killing him. They proceeded to Mmenezi Nxumalo's house. He was asleep. His wife and children were in the house. The applicant told Mrs Nxumalo to go out with her children which she did. The applicant then shot Mmenezi Nxumalo. As a result of the shooting Nxumalo died. The applicant and his friend then returned to Ndumo.
A few days later, the applicant and Mavundla were arrested. They were subsequently tried and convicted for the murder of Mmenezi Nxumalo.
At the hearing of the amnesty application, Simon Zikali gave evidence and denied that he had ever pointed a firearm at the applicant. He denied that he killed the applicant's brother and his cousin. He was on the fringe of the crowd and did not see how they were killed. He said that they were not killed by a political group but by the community at large. They were killed because they were suspected of stock theft from the community. He was not aware of political unrest in the area. He admitted that he was arrested and charged for the murder of the applicant's brother and cousin but was found not guilty and acquitted.
The next witness Jordan Gumede is the Chief of the area. He testified that at the time of the incident he was an Induna to Chief Mankenke. He did not have any knowledge of a meeting which was held at the forest. He knew that there was a problem of stock theft in the area. He said that his predecessor, the previous chief, who had since died, had actually called three meetings to address the problem of stock theft and had also invited the Magistrate to these meetings.
He admitted the applicant had told him that in 1992 Simon Zikali had pointed a firearm at him, and that Simon Zikali had asked him to attend an ANC meeting. He was emphatic that in his area there was neither IFP nor ANC. He said that to date there has been no political strife in the area and was emphatic about this as well. He said that when he heard of the deaths of the applicant's brother and cousin, he reported the matter to the police. He did nothing further in the matter because it was being attended to by the Chief. He did not know whether anybody had been arrested or tried for those murders.
He was aware that the applicant and Mavundla had been arrested for the murder of the deceased which had been committed in the area of another Induna. He emphasised that if there had been political conflict in the area he would certainly have been aware of it. The applicant was afforded an opportunity to cross examine the Chief, but he had no questions to ask.
The central question that has to be decided is whether the killing of the deceased and the attempted murder of Simon Zikali was due to the political conflict in the area between ANC and IFP or whether this arose out of the killing of the applicant's brother and cousin arising out of the stock theft which was prevalent in the area. On this aspect of the matter there was the evidence of the applicant on the question of political violence in the area. As against that there was the evidence of Zikali and Chief Gumede.
After the conclusion of the hearing, the Committee decided that an attempt should be made to ascertain whether the applicants co-accused had filed an application for amnesty.
From the records of the TRC, it appears that he, Mavundla, had not made an application for amnesty, but had made a statement under oath to the Human Rights Violation Committee of the TRC concerning the loss he had suffered as a result of the burning down of his house and its contents.
The contradictions between the two affidavits on a crucial matter is of such a nature that the committee has decided to place no reliance on the evidence of Mavundla.
The committee has come to the conclusion that the evidence of Simon Zikali is reliable. His evidence was corroborated by Chief Gumede. We are persuaded that the community in that area was plagued by stock theft. We accept that the applicant's brother and cousin were killed by members of the community who were angered by the stock theft in that area. If Ngubane was an eyewitness to the killing of his brother and cousin, he has offered no explanation why he was not called to give evidence at the trial of Simon Zikali.
The committee has come to the conclusion that the applicant has failed to establish that the killing of Nxumalo was as a result of political conflict between the IFP and ANC.
He has thus failed to meet the requirements of the Act and accordingly amnesty is REFUSED.
SIGNED AT
: THIS
: DAY OF
: 2000.
JUDGE H E MALL
ACTING JUDGE C DE JAGER
ADV S SIGODI
