: DECISION
The Applicant applies for amnesty in respect of his conviction for the murder of Msizi Francis Shabane on 30th/31st March 1991.
The Applicant was one of three persons charged with and convicted of this offence in the Regional Court, where he was sentenced to 10 years imprisonment on 23 November 1992. During the course of the trial the Accused admitted the identity of the deceased; that he sustained no further injuries after the attack and that the post-mortem report related to the body of the deceased; and that the findings of the report as well as the cause of death is correct. This was that the cause of death was consistent with penetrating wounds of the head and chest. The doctor who prepared the report gave evidence and explained that the injuries were of a penetrating and incised nature, caused by a sharp instrument and that she found no traces of a bullet wound. There was a penetrating wound to the skull and fourteen to the chest.
The Applicant, who was Accused 1, gave evidence at the trial that on the day in question, he was at his home and not at the deceased's house; he only heard of the incident on the next day. The other two accused also denied any participation in the incident.
The Applicant, in his amnesty application, dated 25 September 1996, averred:
9(a) (i) "The person I killed was aligning himself with the then KwaZulu Police, which was my opponent."
(ii) "I killed the person to further the aims of my political party (ANC). I stabbed the deceased with a knife."
10 (a) State the political objective sought to be achieved: - "To eliminate my political opponent".
(b) Your justification for regarding such act/s, or omission/s or offence/s as act/s, omission/s or offence/s as with a political objective: - "this was due to the political rivals which was in the area during that time."
11 (a) Was the act/s, omission/s or offence/s committed in the execution of an order of, or on behalf of or with the approval of, the organisation, institution, body, liberation movement, state department or security for the concerned: - "This was through to my own sacrifice."
He thereafter, in an affidavit dated 14 July 1998, set out in detail who he was with on the night in question. He stated that he was a cardholder of the ANC Youth League and that others were also members, although he was not sure if they were cardholders. He then explained what happened as follows:
"The reason why we decided to attack the victim was because they were opposing us and had formed their own group of "Kapnaars". The Kapnaars were a group of vagrants, and criminals who were breaking into houses and stealing. They were not associating themselves with political organisations.
One of the main reasons why we decided to attack them it was because they first attacked us whilst in the company of the KwaZulu Police who were aligned with Inkatha Freedom Party. The attack was on comrades who were at Mkhize's house in J-Section, Umlazi. They attacked us with firearms and two of our comrades died, namely Mzezazi Luthuli and Themba Myende.
Both were staying in Unit 3, J-Section, Umlazi, but I have forgotten the house numbers. Mr Mkhize's house was also in Unit 3. This attack happened on the 31st March 1991 about 23h00. I know of nobody that was arrested for these crimes.
The attackers were brought in by a vehicle which left then and drive into their area. We watched it. After the shooting they ran away into the house after alighting from the vehicle. We then followed immediately and attacked them. It was on that very same date and incident in which Msizi Shabane was killed.
On our arrival we found Msizi Shabane, Nganezi Shabane and the family.
I also want to point out that the reason why I concluded that there were members of the KwaZulu Police is because the KwaZulu Police used to go to them using the same vehicle that was used on the night of the attack on Mkhize's house. Nobody instructed us to do what we did but our own initiatives to also revenge.
I connect it with the politics because there was conflict in the township between us and the Kapnaar. This had been going on for some time. The relationship with the members of the KwaZulu Police, who were opposed to us made us to conclude that the Kapnaars were being used as watchdogs or spies for them. Even the Mayor of Umlazi, Mr Xulu tried to resolve our differences by summoning or convening a meeting between them and ourselves but we were unable to go to that meeting because there were members of the KwaZulu Police. I apply that my application for amnesty be considered on these ground."
This accorded to a large extent with the evidence he gave before us when he said the purpose of the attack was to promote their organisation and to take revenge against their enemies. he talked of the attack on his group which was relaxing at Gumede's house and the cars subsequent return to Shabane's place, although he was unable to see the people who alighted from the car. Under cross-examination he explained that the Kapnaars gang attended their meetings and disturbed them; they also attacked members of the community. They later associated with the KwaZulu Police and the IFP, but by that time they were already regarded as enemies. The deceased was always with them. He gave details of the attack including their decision to burn the body with paraffin and averred that the attack on them was political in that the Kapnaars told them they did not want comrades.
It appears clear from the contents of the affidavit as confirmed by the evidence that the Kapnaars were not a political party in any ordinary sense of the word nor were their activities carried out with a political objective. No motive has been given for the attack by the Kapnaars on the night in question but the retaliation by the Applicant and his companions was obviously an act of revenge committed out of personal malice and ill-will.
In the light of the contradictions and inconsistencies in his evidence at the trial and before us and in his statements, we do not accept his version as to how and why the incident commenced. There is no suggestion in the evidence before us that the Applicant believed he was acting on the instructions of or on behalf of the ANC or within its implied authority.
In these circumstances the Applicant has not complied with the requirements of Section 20 of the Act and has clearly not shown that he acted with a political objective as required in terms of the Act. The application for amnesty is accordingly REFUSED.
DATED AT CAPE TOWN THIS 15TH DAY OF FEBRUARY 2001
JUDGE A WILSON
DR W TSOTSI
MR I LAX
