: DECISION
The Applicant was charged, tried and convicted of the murder of Vusumuzi Lembethe on 30 January 1994 in Emankwanyaneni Reserve, Lower Umfolozi.
The summary of substantial facts relates the accused having gone to the deceased's kraal, entered the house unnoticed, waited for the deceased and upon him entering the house, shot the deceased in the heart and head, which caused his death.
It appears that the accused had pleaded guilty to the charge (as he also alleged at the hearing), and he was sentenced to 18 years imprisonment.
The trial judge on sentence remarked that a possibly cause could be revenge for some real or perceived act by the deceased against the accused or his family since there was evidence that the family's house had been burnt down.
In his application for amnesty the accused revealed that he was an ANC supporter from 1990 to 1995. he committed the murder because his (the family's) home had been burnt down and his 3 sisters killed. in evidence at the hearing he said that his niece, the baby daughter of his sister had also been killed. He claims this to have been due to the conflict between ANC and IFP, the victim Vusumuzi Lembethe, having been an IFP supporter. He alleges that he informed his organisation that he was going to kill Vusumuzi Lembethe, but he was not ordered to do so. It was his own decision.
The mother of the deceased filed an affidavit disclaiming knowledge of her son's alleged attack causing the death of the Applicants sisters. She says her son was not a member of the IFP, and that the Applicant was mistaken if he believed that the burning of his home and death of his sisters were associated with her son's political acts or affiliation.
She does however concede the existence at the time of friction and misunderstanding in the area between political organisations, not naming them. Two of the deceased's sisters, Bongiwe Philisiwe Mildred Lembethe and Gcino Dorcas Ximba (nee Lembethe) filed affidavits saying that they did not have any knowledge of their brother's political affiliation/interest.
The Committee was taken aback when at the hearing Mr Dehal on behalf of the Applicant filed an affidavit, the contents of which the Applicant confirmed to be true and correct and then proceeded to tell the Committee that he had advised the Applicant that the application did not merit amnesty.
The affidavit confirmed the contents of the application. It emphasised the ongoing conflict between the ANC and IFP during January 1994. While he was at his girlfriend's house he was approached by friends who informed him that he had to return home, because of great damage. When arriving home he found the house to be burnt down. His sisters and niece were gunned down and burnt.
One Sipho Dlamini informed him that Vusumuzi Lembethe had killed his three sisters and niece. he knows Vusumuzi to be belonging to the IFP. He got angry and planned to kill him. He planned to do it in the morning and bought a 9mm gun for this purpose.
Two further pieces of evidence are then added. After killing Vusumuzi, he took his (Vusumuzi's) gun and ran home. He further alleges again that both his sisters and Vusumuzi died mainly because they belonged to opposing political parties.
On behalf of the victims Mr Panday put it to the Applicant that he had known the family well. He answered that he did. He grew up among them, they were neighbours, his sisters were well known to the family. His sister was married to a son of the Lembethe's. He bore no grudge against Vusumuzi.
Asked as to why he did not tell the court about his sisters, he said that he did not get to explain much at court.
Asked as to what he would have done if someone else had killed his sisters and burnt his home, he responded that he would have killed any such person, disregarding the organisation even if such person was aligned to ANC.
Asked as to whether he had killed him not because of his IFP membership but because of the act itself, his response was that he did not have a problem with him being IFP.
In assessing the evidence before the Committee, a few findings were made on a preponderance of probabilities.
1. That Vusumuzi Lembethe was probably aligned to the IFP. No evidence was produced to gainsay the Applicant's allegation. The family only adduced evidence on affidavit that they were not aware of his politics or interests.
2. That the fact that the Applicant alleged that he also took the deceased's gun before leaving his kraal, which was never challenged, adds to the credibility of the Applicant's version that Vusumuzi was in some way more involved in the conflict, than the family had knowledge of.
3. That, on the evidence before the Committee, there indeed was ongoing conflict between the IFP and ANC, also born out by the affidavit of the mother of the deceased.
4. That the evidence about the killing of his sisters, the burning of their bodies and the setting alight of their home is probable manifestation of this conflict. No other suggestion, was adduced in the hearing.
5. That this attack preceded the killing of Vusumuzi. Although it was put to the Applicant that it only happened after the killing, he did not concede this allegation. No date was suggested on which these killings were to have been perpetuated and no such evidence presented. Was this so, one would have expected opposition to have made this the main point of attack.
The reference (by the trial judge) to the burning, quoted above, and a reaction to such incident, tend to rather favour the Applicant's version.
It is common cause that the conflict in KwaZulu Natal had its own peculiar dimension and momentum, which continued long after the conflicts in the rest of the country had subsided.
It is also well known that the dimension of conflict at the traditional and rural level was very brutal, all out war. It was not based on a frame of modern reason. Revenge attacks were actually daily occurrences. These were not revenge attacks of a non-political nature or of a personal nature. They were at the centre of conflict that kept on spiralling upwards both in tempo and intensity. It was in fact the heart of the conflict, one being unable to decide which was attack and which counter attack. The spiral virtually rendered every attack a counter attack.
It is against this background that we have to weigh the argument of the family, forwarded by Mr Panday, that this was a non political personal revenge. We are mindful also of Mr Dehal's statement to the Committee that he had advised the Applicant that the acts do not merit amnesty.
Both the above are premised on the statement that the Applicant killed Vusumuzi Lembethe because he had killed the Applicant's sisters. It is probably also based on the statement of the Applicant that he would have killed anybody who had killed his sisters.
Now, the fact that, on the evidence of the Applicant, he would have killed whoever was responsible, does not, of course, divorce the act from the political conflict. The Committee is more than satisfied that it came in response to a politically motivated attack on the home of the Applicant and the political killing of his sisters.
Section 20(3)(b) enjoins the Amnesty Committee to, in its deciding whether the act was associated with a political objective, to have reference to the context in which the act took place and in particular whether the act was committed as part of a political event, or in reaction thereto. We have no doubt that it indeed was and that the Applicant, subjectively, had no such doubt and acted bona fide, even informing his organization of his proposed action.
The last question that remains is whether the fact that the Applicant responded to an attack on himself and his relatives, renders the attack personal as opposed to political. The Committee finds it not to be so. This could mean that an Applicant who responds to the political killing of his comrades would qualify for amnesty, but were those comrades his brothers or sisters, persons closely related to him he would not so be entitled. That is not good logic.
We are satisfied that both the Applicant and the deceased found themselves in a traditional environment where the facts of this incident fit the broad pattern like a glove. We are further satisfied that the Applicant acted within the political conflicts of the past and having regard to Section 20(3)(b) acted with a political objectives as envisaged in Section 20(2) of the Act.
We are further satisfied that the Applicant has made an honest and truthful disclosure of all material facts related to the killing of Vusumuzi Lembethe.
Amnesty is therefore GRANTED to the Applicant for the killing of Vusumuzi Lembethe on the 30th January 1994 at the Emankwanyaneni Reserve in the district of the Lower Umfolozi.
The Committee is further of the opinion that Vusumuzi Lembethe is a victim as envisaged in the Act and refers his name, with particulars of his next-of-kin, to the Reparation and Rehabilitation Committee for consideration in terms of Section 26 of the Act.
The Committee is further of the opinion that the 3 sisters and niece of the Applicant are victims as envisaged in the Act and refers those too, to the Reparation and Rehabilitation Committee for its consideration.
SIGNED THIS THE 30TH DAY OF JANUARY 2001
