DECISION
These are applications for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act"). The applications relate to the killing of Victor Lembede ("the deceased") in his shop at Ngonyameni Reserve, KwaZulu-Natal on Friday, 21 June 1991. All of the Applicants have been arraigned at different stages on a count of murder and attempted robbery arising out of the incident and were sentenced to long term imprisonment which they are presently serving. An exposition of the detail concerning the various trials and all of the charges brought against the different Applicants is not strictly necessary for purposes of this decision. Suffice it to say that the basis of the criminal trial, namely a murder committed in the course of an abortive planned armed robbery, differs radically from the case which the Applicants sought to make out before us. The case before us was that the deceased was killed in the course of a political assassination.
All of the Applicants, as well as a number of witnesses, testified at the hearing. The applications were opposed by the next-of-kin of the deceased.
The versions of Applicants coincide and were basically to the effect that they were either members or supporters of the African National Congress ("ANC"), save for Francis Tekise Meyiwa ("Meyiwa") who was a member of the South African Communist Party, at the time of the murder. They were involved in political activities, including the protection of their area, Zamani Reserve, against attacks from their political foe, the Inkatha Freedom Party ("IFP"). While they were present at a camp organised for the purpose of defending their area, Ernest Sipho Mahlanze (referred to in the evidence as "Mbambo") arrived and raised the problem of a person who was supplying arms to the IFP in the neighbouring Ngonyameni Reserve. This was on the Wednesday preceding the murder. According to Mbambo the culprit was a shopkeeper who had already supplied a variety of weapons to the IFP. The leader of the ANC in Zamani, Mr Mtambo, was present at the camp and immediately ordered a group of those present to eliminate the culprit, who transpired to be the deceased, on the coming Friday, 21 June 1991. The assassination had to occur at the deceased's shop which would be relatively safer than his home where he kept the weapons. Mtambo decided that Elijah Nyawuza ("Elijah"), one of the applicants before us and the father of a co-Applicant Ernest Nkosinathi Nyawuza ("Pops"), should be approached to supply the necessary transport to Ngonyameni. Mtambo in fact led a small delegation to Elijah's house and on their return confirmed that the transport was arranged.
On the day of the incident and after having received some firearms from Mtambo, the group of attackers set off to the shop of the deceased in Elijah's vehicle. The group consisted of Elijah, the driver, Mbambo who had to give directions to the deceased's shop and point out the latter to the assassins, Pops, Joseph Mkhize and the co-Applicants Filbert Makhonya Ndimande ("Ndimande") and Meyiwa.
Pops, Ndimande and Meyiwa were armed with firearms. After the group's arrival at the shop of the deceased, Elijah remained in the vehicle while the rest of the group alighted and proceeded on foot in the direction of the shop. Mkhize and Meyiwa stopped a distance away from the shop while the remaining three entered the shop and pretended to be customers in order to give Mbambo an opportunity to point the deceased out to the other two companions. After the deceased was identified the group left the shop and joined Mkhize and Meyiwa outside. Mbambo returned to the vehicle because he was at risk of being recognised by possible eye-witnesses as a former resident of Ngonyameni. The remaining four returned to the shop to execute the assassination. Pops and Ndimande entered the shop whilst Meyiwa and Mkhize kept a look-out near the entrance. When Ndimande drew his firearm inside the shop he was grabbed by someone in the shop and a scuffle ensued in which Ndimande lost possession of the firearm which fell on the floor. Pops witnessed the scuffle and realised that Ndimande was being dispossessed of his firearm. He fired one shot at the deceased and noticed that the latter was wounded. Ndimande ran out of the shop while Pops backed out keeping an eye on the persons inside the shop. They escaped from the scene in their vehicle which waited for them outside the shop. They reported the success of the operation to Mtambo and also returned the weapons which he supplied. The Applicants and Mbambo were subsequently arrested and tried. Mbambo was acquitted on the basis that he was acting under duress when he accompanied the group of attackers to the deceased's shop.
The remaining witnesses on the merits of the applications, contradicted Applicants' version. Two of the deceased's sons testified as to the general circumstances of the deceased. The evidence was briefly that the deceased was a 62 year old, diabetic who was in bad health and had to be transported around usually by one of his sons. The family was accordingly always aware of his movements and whereabouts. He was a well-known personality in the Ngonyameni area where he was a school principal and shop-owner. Although the family has some ANC ties, the deceased was committed to his work and business and was not involved in politics. He was not a supporter or member of the IFP and never supplied any weapons to that organisation. The deceased was the licensed owner of a pistol and a shotgun and possessed no other firearms.
The only eye-witness to the incident among the witnesses who appeared before us was the grandson of the deceased, Edgar Mkhungo ("Edgar"). He was a 21 year old technikon student at the time and helped out in the shop in the afternoons. They were approximately six persons working in the shop apart from the deceased. The incident occurred just before 17h00 on the Friday in question at a time when they were about to close the front entrance to the shop. They were only three shop assistants present in the shop together with the deceased at the time. The others had already left for home. As he was preparing to close the front door he noticed some people, whom he accepted to be customers, approaching the shop. He kept the front door open to allow them to enter and do their purchases. At some stage he went to fetch a key at the back of the shop for one of the other shop assistants, whereafter he returned to the entrance. He then became aware of a noise coming from the back of the shop and saw Ndimande, armed with a firearm, struggling with the deceased. Edgar went to the assistance of the deceased and grabbed hold of Ndimande trying to disarm him. In the course of the struggle a shot went off and Edgar managed to gain possession of the firearm. He ran towards the back of the shop and heard gunshots. When he looked back he saw the deceased falling to the ground near the shop counter. Ndimande then shouted to his companions to come and get the money. Edgar fired a shot at them and the assailants fled. He cannot identify any other members of the group of attackers. He had a very close relationship with the deceased and is unaware of the deceased's alleged involvement in supplying firearms to the IFP. In view of Ndimande's reference to the money, he concluded that the motive for the attack was robbery. On Fridays there was usually more money in the shop than on weekdays which would explain why the robbery was planned for late afternoon on the Friday. In his view the shot that he fired from Ndimande's firearm foiled the attackers' plan to execute the robbery.
Mbambo also testified at the hearing contradicting Applicants' version. He basically testified that the Applicants approached him a while before the incident and obtained information from him about the number of shops in Ngonyameni. They intended to rob these shops starting with the deceased's shop because, in their view, the deceased had a lot of money. Mbambo gathered that they knew the deceased as some of them were previously living in the Mbumbulu area where the deceased also used to have a shop which was later burnt down. Mbambo refused to participate in the plan. On the Friday of the incident he returned home from work and met the Applicants together with his neighbour, Joseph Mkhize, while they were parked under a tree drinking beer in Elijah's car. They indicated that they were waiting for Mbambo to take them to Ngonyameni to point out the shop of the deceased. Due to the fact that the vehicle was not roadworthy, they wanted Mbambo to direct them along certain back roads to Ngonyameni. None of them knew this particular route except for Mbambo. After Mbambo dropped off certain groceries at home, he went for a drink in a nearby shebeen. He was still busy drinking his first beer when Ndimande arrived with a firearm to fetch him. He was compelled to leave with Ndimande before even being able to finish his beer. He acted under duress in accompanying the group to the shop of the deceased. In the vicinity of the shop, the others alighted and went to the shop which was pointed out by Mbambo. He waited at the vehicle with Elijah. After a while they heard gunshots coming from the direction of the shop and Elijah drove in that direction, leaving Mbambo behind. The latter started walking back in the direction from which they came earlier. He intended to sleep at his parent's home, should he not get a lift back to Zamani. After a while Elijah's vehicle arrived and Mbambo returned to Zamani with them. Mbambo was later tried with Meyiwa and Ndimande and was acquitted on the basis of duress. He denied having informed the Applicants or anyone else that the deceased supplied firearms to the IFP. He was quite emphatic that the Applicants planned to rob the shop of the deceased and that this was their sole reason for visiting Ngonyameni on the day in question. The deceased was his school principal and he has no knowledge of the former being associated with any political organisation. He confirmed that the deceased had difficulty in walking as testified to by members of the latter's next-of-kin.
We have been extremely favourably impressed by the evidence of Edgar. Mbambo also impressed us as a good witness. We find no reason not to accept both their versions as the truth. The Applicants, on the other hand, have not made the same favourable impression on us. Elijah, at one stage, withdrew his application for amnesty. He claimed to have done so as a result of undue influence exerted on him by one of the Amnesty Committee's investigators. He, moreover, denied at first having made a statement to the investigator but subsequently confirmed the statement dated 9 December 1998 forming part of the papers before us, however, still disputing material aspects thereof. At the end of his testimony he had all but abandoned his attack on the statement in question. The leader of evidence, Ms Thabethe, called both Ms Mkhize, the investigator who took the statement in question, as well as Mr Cele, the one allegedly responsible for intimidating Elijah, to testify. This evidence indicated that both investigators were present when the statement in question was taken from Elijah by Ms Mkhize. At some point in the discussion Mr Cele, who was previously a member of the detective branch which investigated the murder of the deceased at the time, mentioned this fact to Elijah. It transpired that Mr Cele had some knowledge about the facts of the incident. After this discussion between Elijah and Mr Cele, the former suddenly indicated to Ms Mkhize that he wished to withdrew his amnesty application. This fact is reflected in the statement in question. Mr Cele furthermore denied having intimidated Elijah. We have no hesitation in accepting the evidence of Ms Mkhize and Mr Cele to the effect that the statement reflects what Elijah had related to Ms Mkhize and that Elijah voluntarily decided to withdrew his application for amnesty, without any improper actions on the part of Mr Cele. The evidence of Elijah is rejected where it conflicts with the version of these witnesses.
There are other unsatisfactory features in the version of Applicants. They failed to tender a satisfactory explanation for deciding to assassinate the deceased at his shop where the possibility of eye-witnesses being present was overwhelming. This factor lends further support to the evidence of Edgar and Mbambo that the plan was to rob the shop. Applicants' suggestion that it was safer to attack the deceased at his shop because the firearms were at his home, is fanciful. They failed to give any basis for this conclusion. There would have been every reason to expect that an alleged seasoned arms supplier to one of the contending political forces in the area would be armed at all times, particularly while present in his business premises. Applicants' actions in summarily attacking the deceased without reconnoitering his movements to ascertain when he would be most vulnerable, is highly improbable given their version that their sole objective was to eliminate a political adversary. This is more likely the actions of persons who intended to rob the shop rather than launch an attack on the deceased. The haste in which the decision was taken to eliminate the deceased, who was allegedly unknown to them, at great risk and on the mere unsubstantiated report of an individual, is so improbable as to be beyond the realm of belief. As already indicated, this evidence is of course contradicted by Mbambo who was supposed to have supplied the relevant information to Applicants about the alleged activities of the deceased.
Having carefully considered all of the evidence, we are satisfied that Applicants' version is untruthful where it conflicts with the testimony of the witnesses referred to above, particularly in regard to the reason for the attack on the deceased. We are satisfied that the deceased was killed in the course of an abortive attempt to rob the deceased's shop. It accordingly follows that the murder does not constitute an act associated with a political objective as envisaged in the Act. Applicants have, moreover, failed to make a full disclosure of all relevant facts.
In the circumstances the applications are REFUSED.
DATED AT CAPE TOWN THIS
: DAY OF JULY 2000.
JUDGE A WILSON
JUDGE D POTGIETER
ADV N SANDI
