DECISION
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995, as amended (hereinafter referred to as "the Act").
The Applicants are brothers who hail from a traditional community in a remote rural area, Driekop in the Northern Province where Abram Madibeng Phasa ("the deceased") was murdered on 14 February 1993. Pursuant to this incident Applicants were convicted in the Lydenburg Regional Court of the following offences:
(i) murder;
(ii) contravention of section 1(a) of the Witchcraft Suppression Act 3 of 1957 by imputing witchcraft to the deceased;
(iii) contravention of section 1(a) of Act 3 of 1957 in respect of Johannes Mmaletswai Phasha.
The Applicants were each sentenced on 28 June 1995 to an effective 13 years imprisonment which sentence they are presently serving. The amnesty applications relate to the above convictions. We may interpose here that a third brother, Lipson Lebjana Phasha, is a co-applicant for amnesty in respect of the same incidents and is also presently serving an effective seven years imprisonment pursuant to his conviction on the first two counts referred to above. He is presently hospitalised for an undisclosed period. Mr Richard, who appeared for the Applicants and was also instructed to represent Mr Phasha, indicated to us that his instructions are to proceed with the present applications, given the lack of any clarity as to the condition and expected period of hospitalisation of Mr Phasha, whose application will be dealt with at a later stage.
In our view it is in the interest of justice that the matter be dealt with on the suggested basis and for the application of Mr Phasha to stand over for later determination.
The next-of-kin of the deceased were legally represented at the hearing by Mr Mokoena, but they did not formally oppose the applications.
The salient features of the matter can be set out succinctly as follows. Moses Phasha ("Moses"), the Applicants' cousin, disappeared during January or early February 1993. All attempts to locate him failed. He lived with First Applicant, Michael Morudi Phasha, at the time. Moses was either a supporter or member of the African National Congress Youth League ("ANCYL") for some time prior to his disappearance.
At the time of the launch of the ANCYL in Driekop, the Chief in the area, N.W. Mashabela, clashed with the youth and attempted to stop the launch. It was apparent that the Chief was opposed to the ANCYL and a hostile relationship developed between the parties as political adversaries. The members of the ANCYL held the belief that the Chief enlisted the assistance of certain members of the community who were regarded as exercising witchcraft, to eliminate the ANCYL in the area. The latter consequently also regarded these persons as their political enemies. The members of the community at Driekop, including the Applicants, held a deep seated belief in witchcraft. Members of the ANCYL held the bona fide belief that the persons in question were using their supernatural powers to harm them and eliminate potential future community leaders among the ranks of the ANCYL, in support of the Chief. This was regarded as a serious threat to the ANCYL.
Soon the ANCYL linked the disappearance of Moses to the activities of the perceived practitioners of witchcraft. Matters came to a head on 14 February 1993 when the Chief was approached by a group in excess of 500 ANCYL members and supporters who held a meeting in his kraal. The upshot of this was that the Chief summoned one of his traditional healers to attend at his kraal and assist the group to determine the whereabouts of Moses. This person never appeared and the crowd eventually confronted another member of the community who was regarded to have the necessary information about the identity of the persons responsible for Moses' disappearance. This person identified the deceased, who was perceived to be a witchdoctor, as one of the culprits. The group proceeded to the deceased who was confronted and questioned by second Applicant, Daniel Lisufi Phasha. The deceased admitted his involvement in the disappearance of Moses. Second Applicant realised that the deceased was about to be killed by the group which included members of the ANCYL leadership. He left the scene with a part of the group in search of another suspect.
The deceased was stoned by the crowd who was singing and chanting political slogans. First Applicant threw the first stone at the deceased who eventually died of head injuries.
The body of Moses was discovered some months later hanging from a tree. Some of the body parts had been removed from the body in a style reminiscent of a muti-killing.
Having carefully considered the matter, we are satisfied that the killing formed part of the political strife between the ANCYL on the one hand and the Chief and his perceived supporters on the other. It is clear that bona fide perceptions about their association with and support of the Chief, led to the perceived witchdoctors being regarded as their political enemies by members of the ANCYL. On the whole, in our view, the issue of witchcraft did not play a determining role in the decision to kill the deceased. It was rather his complicity in the disappearance of Moses in furtherance of the Chief's political struggle against the ANCYL. It was clear that by the same token the deceased was regarded as an enemy of the ANCYL and his murder was seen as the elimination of a political enemy.
Although Second Applicant did not physically participate in the attack upon the deceased and was not on the scene at the time of the killing, we are satisfied that his actions rendered him liable for the killing on the basis of common purpose in spite of his evidence that he did not desire the death of the deceased. This coincides with the finding of the trial court. First Applicant played a leading role in the attack upon the deceased.
We are also satisfied that the Applicants made a full disclosure of all relevant fact and that their relevant actions constitute acts associated with a political objective as envisaged in section 20 of the Act. The applications accordingly comply with all the requirements of the Act.
In the circumstances the Applicants are GRANTED amnesty in respect of the following offences committed on or about 14 February 1993, at or near Driekop, Northern Province:
(i) the murder of Abram Madibeng Phasha;
(ii) a contravention of section 1(a) of Act 3 of 1957 in respect of Abram Madibeng Phasha;
(iii) a contravention of section 1(a) of Act 3 of 1957 in respect of Johannes Mmaletswi Phasha.
In our opinion the next-of-kin of the late Abram Madibeng Phasha are victims in respect of the murder and they are referred for consideration in terms of section 22 of the Act.
DATED AT CAPE TOWN THIS
: DAY OF MAY 2000.
JUDGE DENZIL POTGIETER
ADV N SANDI
MR J B SIBANYONI
