DECISION
I have read the decision of my colleagues Potgieter AJ and Adv. Gcabashe. For the reasons set out below I cannot agree with the result.
After considering all the evidence I am convinced that the applicant made a full disclosure of all the relevant facts. The longer the hearing lasted, the more it became clear that those implicated by him were indeed the conspirators who planned to kill the late Mike Mcetywa who was the ANC chairperson at Pongola. The applicant was chosen to execute the murder because it came to their knowledge through Philemon Mtungwa, who worked with the applicant, that the applicant had received training in the use of fire arms. Philemon Mtungwa was the brother of Amos Mtungwa who was a member of the KwaZulu Parliament and an IFP leader in the area. There was an attempt to down play the IFP's involvement in politics at Piet Retief and Pongola at the time and the role that the implicated persons namely, the Mtungwa brothers Amos and Philemon, the Khumalo brothers Sam and Velaphi, Malebele Buthelezi and Rasta Mngcwango played in the IFP during the relevant period. It was testified that Rasta was a PAC supporter. It is, however, significant that it is common cause that a month or two after the assassination he was known to be the IFP chairperson in Pongola. It also transpired that the IFP had an office where the applicant was alleged to ask for pecuniary assistance for his trial after his bail was paid. It also became clear that applicant's attorney at the criminal trial was appointed by Petrus Ndlangamandla and that Sam Ndlangamandla and Sam Khumalo also played a role in this. Sam Khumalo was indeed a councillor serving on the local council at Pongola and accepted to be an IFP representative.
The Ndlangamandla name is indeed the praise name of the Mtungwa people and the person Petrus Ndlangamandla is also known as Petrus Mtungwa. It became clear that the implicated persons, none of whom had applied for amnesty, tried their utmost to protect the IFP and themselves from possible involvement and prosecution. The extent to which they were prepared to go was clearly illustrated by the dubious methods applied to obtain an affidavit from the applicant's father in an effort to explain their visit to the applicant at his father's house after his release on bail. I have no hesitation in rejecting their evidence where ever it contradicts the applicant's version. It is significant that the applicant's evidence is to a large extent corroborated by Krutchev Ndwandwe an ANC leader in the area whom I found to be a credible witness.
The applicant testified that he killed the deceased because he was requested to do so by Amos Mtungwa, Philemon Mtungwa, Sam Khumalo, Velaphi Khumalo, Sandisiwe Ndlangamandla and Malebele Buthelezi. As stated, although there was an attempt to down play their roles in the IFP, it is clear that all of them were in fact at the end of day closely associated with the IFP and served in local leadership positions in that organisation. They informed the applicant, who was a foot soldier member of the IFP, that they would arrange for his transport to Pongola, that they have chosen him for the task because he was unknown at Pongola and would not easily be recognised. This meeting took place in Pongola in the Wimpy Bar after the applicant was driven there in Amos Mntungwa's car by the Mtungwa brothers.
They further told him that they wanted Mike Mcetywa killed because he was the ANC chairman at Pongola and that he was causing lots of problems in the area. They furnished him with a fire arm. Two other persons, Krutschev Ndwandwe and a certain Erens, also prominent ANC members, were also ear-marked for assassination. He was told that the ANC is growing stronger and stronger in the area. He conceded that it wasn't IFP policy to kill people but "we were supposed to do this because my organisation agreed or wanted us to do it that way". He did not do it out of bad faith and considered Mr. Mcetywa to be a "perfect (legitimate?) target" in the struggle between the ANC and IFP. He later became aware that money was collected and IFP members made donations for his defence. He used to attend rallies of the IFP and was well aware of the political struggle. On being asked about the policy of the IFP on killings he repeatedly answered more or less in similar words:
"I will repeat again that the policy of the IFP is that we shouldn't kill and I don't think there is a single political organisation that allows its members to commit murder, but members do that, they do it on their own and that's why we get political violence in areas. And my area wasn't just the only area which was involved in political violence, other areas as well. We will hear about them over the radio".
It was a well known fact, widely published in the media that the ANC and IFP were at war with each other. This war continued notwithstanding calls from leaders for peace. It continued up to, and even after, the elections. If it had been a requirement of the act that amnesty can only be granted to people acting in accordance with official party policy or government policy, no IFP member or security force member for instance could be granted amnesty.
The applicant further testified in answer to a question about the struggle that he was involved in: "I think I have mentioned that I was going to come back and do as the people who were outside (of goal) were doing. If they were continuing with the struggle, I was going to join the struggle and if it was necessary to kill, I was going to kill, but if they were not, I was not going to. I know that after President Mandela took over, IFP and ANC were now in good relationships. I think I was going to take part in that process as well, like they are doing".
This to my mind clearly illustrates that the applicant was politically motivated and did not act because of any other motive. The fact that money was collected from IFP members, that attorneys were instructed by the local IFP leaders to act on his behalf is evidence of the IFP's approval and/or condonation of applicant's acts.
There is no evidence that the applicant himself or the deceased was involved in the taxi dispute. In any event that dispute was solved a month before the murder. It was further suggested that the applicant might have acted as a police agent. This too, was not substantiated.
Although there might not have been political killings at the time in Pongola, the political war between the ANC and IFP was not localised. Conflicts used to occur in neighbouring towns Ermelo, Piet Retief, Vryheid, Dundee etc. Killings were almost daily publicised in newspapers and over the radio. The applicant was told that the ANC is growing stronger and stronger in the area. According to him the killing of the ANC leader in Pongola in fact contributed to an IFP majority in the area and a decline in the growth of the ANC.
I am of the opinion that the applicant fall within the ambit of Section 20 (2) (a) and/or (f). It is true that a person like Amos (accepted to be "a well known IFP leader" in the area) did not have the authority to impose orders upon the applicant to commit murder. As a matter of fact nobody in the whole country could do so. That, however, is not a requirement of the act for the granting of amnesty. The applicant accepted him as an IFP leader who spoke on behalf of the party. He was in fact a speaker on public platforms on behalf of the party. It should further be born in mind that this order came from a group of people, all of them being involved in the local leadership of the IFP.
The belief of the applicant that he is acting on instructions of IFP leaders against a political opponent who was the leader of the opposing party in the area, is a fact and forms a factor in considering the criteria or guidelines set out in Section 20 (3) as to whether the offence was associated with a political objective. The subjective belief of the applicant, once established, is a factor that should be considered in applying the criteria set out in Section 20 (3) in the same way as the (subjective) motive of the applicant is a factor required to be taken into account in dealing with Section 20 (3) (a).
Although there was no local political uprising in Pongola, the ANC/IFP conflict was a national conflict and as such played a role in events throughout the country. This offence occurred while peace negotiations were going on but it is clear from inter alia the IFP's submissions to the TRC that violence continued through out that period.
There might be speculation about other possible motives for the murder and whether the offence was associated with a political objective but there is no credible evidence contradicting applicant's version that his act was in fact associated with a political objective.
In the result I conclude that amnesty should be GRANTED to the applicant as requested by him.
C DE JAGER AJ
