DECISION
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The Applicant applies for amnesty for the murder of Michael Mcetywa ("the deceased") on 22 November 1993 at Pongola, KwaZulu-Natal. He also applies for amnesty in respect of the attempted murder of an innocent bystander who was shot and wounded in the incident as well as the unlawful possession of arms and ammunition. Applicant was convicted and sentenced to long term imprisonment pursuant to the incident. The application is opposed by the next-of-kin of the deceased.
The Applicant and a number of other witnesses testified at the hearing which ran for a considerable period of time. There were wide-ranging disputes of fact in the various versions presented to us. Little purpose would be served by giving a detailed exposition of all the issues in contention, most of which have been dealt with in helpful written argument submitted on behalf of Applicant and the next-of-kin of the deceased and by the leader of evidence. The following summary of the salient points of the evidence will suffice for the purposes of this decision.
At all material times, Applicant was a member of the Inkatha Freedom Party ("IFP") employed as a security guard at the Bison Board factory in Piet Retief, KwaZulu-Natal. According to his version he was approached by a fellow employee, Philemon Mtungwa ("Philemon") who arranged for Applicant to attend a meeting with Amos Mtunga ("Amos"), Philemon’s brother. Amos was an IFP member of parliament who frequently addressed public meetings to the knowledge of Applicant. Applicant and Philemon travelled from Piet Retief to Pongola where the meeting took place at Amos’ house. Applicant was informed that certain members of the African National Congress ("ANC"), including the deceased who was its local chairperson, were causing problems for the IFP and had to be killed. Applicant was ordered to execute the assassinations. Later in the day Applicant, Amos, Philemon and a number of other persons held a meeting at the Wimpy Restaurant in Pongola where the assassinations were discussed further. The following day, Applicant was unsuccessful in his attempts to execute the plan. A day later he returned to Pongola where he shot and killed the deceased. He was arrested soon afterwards and was eventually convicted and sentenced as pointed out above. He was assisted during his trial by members of the group of conspirators whom he met at the Wimpy restaurant.
A number of persons implicated by Applicant, including Amos and Philemon, testified at the hearing contradicting the version of Applicant. They basically denied having been involved in a conspiracy to kill the deceased or to have given orders to Applicant to kill the deceased. Suffice it to say that none of these witnesses nor the Applicant has made an exceptionally favourable impression on us. There are valid points of criticism that can be raised in regard to all these versions, most of which are dealt with in the written argument. No useful purpose would be served by repeating these submissions, save to point out that it is common cause in the written argument that the evidence as a whole established the complicity of all the implicated parties in the planning and execution of the assassination of the deceased. We merely point out that we are in agreement with this submission.
There are further facts established in the evidence that are important to deciding the application, which need now to be dealt with. According to the acceptable evidence there was no political conflict of any note in the Pongola area between the ANC and IFP prior to the murder. There was, however, considerable conflict between the community and taxi operators to effect large increases in fares. The ANC was seen to be leading the resistance. The deceased and the two other victims identified for assassination were perceived to be actively involved in this regard. A majority of the persons involved in the conspiracy to kill the deceased were also involved in the taxi industry. Their involvement in the IFP, however, was peripheral at best. One of them was a member of the Pan Africanist Congress, a liberation movement on the same side of the South African political spectrum as the ANC. Although Amos could be described as having enjoyed a relatively high profile within the IFP, he was clearly also associated with the taxi operators in that he publicly supported their cause during the conflict.
Having regard to the totality of the evidence and the factors referred to, we are satisfied that the assassination was not in fact related to any political conflict in the area. In all probability the attack was linked to the taxi conflict, although it is not necessary for us to finally decide this issue in view of the decision to which we have come on the matter. The issue which does arise for consideration, however, is the effect of the evidence of Applicant that this is what the group of conspirators told him and that to his mind he was executing an order from the IFP to assassinate a political enemy. It needs to be pointed out in this regard that one of the requirements to be complied with by an amnesty applicant is that the offence in question should constitute an act associated with a political objective as envisaged in sections 20{2) and (3) of the Act. The provisions of these two subsections have to be considered separately.
Insofar as section 20(2) is concerned, our finding that the evidence does not establish any ANC/IFP conflict in the area in question results in the situation that section 20(2)(f) is the only provision which possibly apply in the instant case. It should be pointed out in this regard that where there are reasonable grounds for the relevant belief referred to in section 20(2)(f), the true state of affairs are irrelevant insofar as the provisions of section 20(2) are concerned. This issue has to be decided by evaluating the evidence relevant to Applicant’s state of mind and through an analysis of the provisions of section 20(2)(f). The relevant evidence was to the effect that Applicant was an ordinary IFP member from a neighbouring town who did not know any of the intended victims, one of whom was the ANC chairperson in Pongola – We accept, without deciding, for purposes of this analysis that Applicant was informed by Amos, a well-known IFP leader in the area, that the victims were political enemies whom the former had to assassinate and that Applicant could reasonably have concluded in the circumstances that the order emanated from the IFP. The question for decision, however, is whether this is sufficient to comply with the relevant provisions of section 20(2)(f), which are to the following effect :
"(2) In this Act … ‘act associated with a political objective’ means any … offence… committed … by.
(f) any person referred to in paragraphs (a), (b, (c) and (d), who on reasonable grounds believed that he or she was acting in the course and scope of his or her duties and within the scope of his or her express or implied authority;"
(emphasis supplied)
For present purposes, the only relevant category of person is that referred to in paragraph (a) of section 20(2), namely "any member or supporter of a publicly known political organisation". The Applicant would fall into this category only for the purposes of section 20(2)(f). The section requires further that such a person should believe that "he or she was acting in the course and scope of his or her duties and within the scope of his or her express or implied authority". It is clear that section 20(2)(f) only caters for a strictly circumscribed category of people, more particularly those persons under a particular duty and who enjoy specific authority in the relevant organisation.
As pointed out above, Applicant was an ordinary member of the IFP who held no specific position within the organisation. No case has been made out that Applicant was under any duty or enjoyed any authority within the organisation. There is no indication that Amos could impose any duty or confer any authority upon Applicant. He was not the chairperson of the IFP in the area. Amos has in fact vehemently disputed Applicant’s evidence and has adopted an adverse position towards Applicant’s case. It is accordingly doubtful whether the application complies with the provisions of section 20(2)(f). However, given the fact that the matter can be decided on a basis which obviates the need to do so, we decline to make a final decision on the proper interpretation of section 20(2)(f) and its application to the peculiar facts of the matter.
The application also needs to be evaluated against the criteria set out in section 20(3). This requirement is distinct from and additional to the locus standi requirement set out in section 20(2). Section 20(3) sets out the factors to be taken into account and the criteria to be applied in order to decide whether the offence in question constitutes an act associated with a political objective. In terms of section 20(4) the Committee should take into account, in this regard, the criteria applied in the repealed indemnity legislation. We are mindful of all these requirements but will only deal with those criteria that are directly relevant to and, in our view, determinant of this application.
In considering the requirements of section 20(3), we take into account that the murder did not occur as part of a political uprising or conflict. On all accounts, as indicated above, there was no political conflict involving the ANC and IFP in the Pongola area at the relevant time. There is, moreover, no evidence that the deceased was in fact regarded as a political enemy of the IFP. It follows from what is set out above that the factual position is that Applicant has failed to establish that the offence was directed at a political opponent. In this regard any subjective belief on the part of Applicant would be irrelevant, given the fact that section 20(3)(d) introduces a factual test. The fact that Applicant may have been misled into believing that this was indeed the position is of no consequence in the context of the enquiry under section 20(3). It has also not been established that the murder was committed as a matter of fact, notwithstanding Applicant’s possible subjective belief, in execution of an order of or on behalf of or with the approval of the IFP. Applicant in fact testified that to his knowledge the IFP had no policy authorising the assassination of political opponents. The then chairperson of the IFP in Pongola, Mr Dlamini, denied that the organisation was involved in the assassination and distance the organisation from the offence in an affidavit placed before us. Applicant was unable to dispute the contents of the affidavit.
In considering the provisions of section 20(3)(f) we take into account that very little, if nay, indication was given in the application concerning the objective which was sought to be achieved through the assassination. Applicant indicated that he had no p[personal knowledge about the deceased or his activities. He referred in his testimony to what was allegedly conveyed to him by the group of conspirators. There were vague references in Applicant’s evidence that the conspirators informed him that the deceased was "a problem for the IFP in Pongola" or that the deceased was a thorn in their flesh. None of these effectively hearsay allegations was substantiated by direct evidence. In fact, Applicant’s version was strenuously disputed by the conspirators. In the circumstances Applicant’s averments carry very little, if any, weight. Even if these allegations were made, we are not satisfied that they had any basis in fact. The fact that Applicant may possibly have been misled into believing the allegations to be true, is irrelevant for the purposes of section 20(3) which deals with the factual situation concerning the offence and the victim. No evidence was placed before us concerning any less drastic measures that were taken to resolve any possible problematic situation concerning the deceased before summarily killing him. As pointed out above, we are not satisfied.
In the circumstances and having regard to the criteria set out in section 20(3) and referred to in section 20(4), we are not satisfied that the murder constitutes an act associated with a political objective, as envisaged in the Act. By the same token, neither the attempted murder nor the unlawful possession of arms and ammunition qualifies for amnesty.
In the result the application is REFUSED.
DATED at CAPE TOWN this 22 day of November 2000.
________________________ DENZIL POTGIETER A J
________________________C DE JAGER A J
________________________ ADV L GCABASHE
