: DECISION
The Applicant applies for amnesty in terms of Act 34 of 1995 in respect of the following offences:
1. murder (2 counts);
2. unlawful possession of a firearm in contravention of Section 2, read with Section 1, 39 and 40 of Act 75 of 1969;
3. unlawful possession of ammunition, in contravention of Section 36 read with Section 1, 39 and 40 of Act 75 of 1969.
The Applicant had already been convicted of these offences and sentenced to 20 years imprisonment on each of the murder counts; two years on the firearm count and six months on the ammunition count, all of these sentences to run concurrently.
Evidence was led at the trial that the two deceased, Mr Ndlela and Mr Zondi were passengers on a train from Germiston to Kempton Park. They were shot after the train left Knights Station whilst a large crowd of people were toyi-toying and singing ANC political songs. A shot rang out and Mr Ndlela fell to the floor. When he attempted to get up more shots were fired by a man wearing a green rain suit. He was the only person seen to be holding and firing a gun. Thereafter Mr Zondi was brought to where Mr Ndlela was lying and was thrown and fell. More shots were fired at him by the same person. The man in the rain suit and another unknown person threw Messrs Zondi and Ndlela out of the moving train. Mr Ndlela died of the gunshot wound and Mr Zondi of head injuries received in the fall from the moving train.
It appears that these facts were not disputed. What was disputed was the identification of the Applicant as the man in the green rain suit by a single witness. The Court however, accepted the evidence and convicted the Applicant despite his evidence that he was not on the train in question that night and knew nothing of the events leading to the death of the two men.
In passing sentence the Judge found that a culture of political violence appeared to be almost endemic though it was not the avowed policy of any of the political parties to resort to killings as a means of attaining political power and they would have been shocked to hear that the Applicant acted in this manner in order to further the aims of their party.
In his amnesty application the Applicant claims to have been the chairperson in Katlehong Area Six of the ANC, a Shop Steward at Trichamp Company and a Self Defence Unit member. He then stated:
9(a)(iv) "The murders were committed on the 11th November '93 by a group of men and women including myself. The victims were two IFP members who were killed after they attacked and injured our comrade. Firearms were used in that attack."
10(b) "Two IFP members were killed and an ANC member was injured."
11(a) "The political objective sought to be achieved was a free political activity everywhere including commuter trains to and from work places."
10(b) "It is known that structures of liberation movements were conducting propaganda and agitation amongst the working class to and from work places. However it is also known that there were those forces who were against free political expression and free political activity. As a result of this, we the working class in our community further established a COSATU/ANC train sector substructure whose primary objective was to mobilise the disadvantaged working groups to join unions and ANC and to further defend train commuters against train attacks that were perpetrated by unknown assassins.
On this fateful day of 93-11-11 our train was delayed due to torrential rainfall, and we were compelled to board an alternative train filled to the capacity by Inkatha members and supporters at Germiston Station. A battle ensued between the station in question and Knights station whilst the train was still in motion. During the battle 2 IFP members lost their lives and we incurred a casualty. When we arrived at Knights Station everyone jumped out of the train and fled. I was consequently arrested on the 26-11-93 by being pointed out to the law enforcement agents by our comrade. The comrade in question was a State witness in trial proceedings.
I wish to place it on record that I do not in any way condone my actions morally or otherwise and thus ask for forgiveness to the bereaved families.
Furthermore I subscribe myself to Reconciliation in a non sexist, non racial democratic South Africa."
11(a) "The acts were committed on behalf of Com Train Commuters whom I was defending."
In the course of his evidence before us he confirmed the contents of his application. He explained that after the train sector was formed to mobilise workers on trains to join the unions, problems arose and the leader of the IFP published an order that members of the IFP should resign from unions such as NUMSA and COSATU; members of the unions were harassed in the hostels and attacked on trains by members of the IFP. As a result of this his group met in Germiston and took a decision that they as commuters should obtain guns to protect themselves; he contributed R50. He was himself shot on 5 July 1993. When they boarded the train on 11 November 1993, they commenced toyi-toying as usual. As he was still injured he was unable to join in this and he clapped his hands and they sang Freedom songs. The IFP replied by shouting "Usuthu", a slogan they used when they wanted to fight.
A fight started and he heard a shot; one of the comrades was injured. Another comrade tried to shoot but his gun jammed; the Applicant took the gun from him, cleared it and shot two IFP members. When the train stopped people ran and he could not shoot them but he later threw the bodies out as they could no longer toyi-toyi. He stated that the shooting was politically motivated as the violence on the trains was caused by the IFP preventing them from recruiting members on the trains.
When the fight started there was a group of 11 to 12 IFP members present who had traditional weapons. He was the only person who shot anybody. He did not hear anyone ask them if they were Zulu but fired at people who were armed to protect his comrades. He later denied he heard any shots. When questioned further he denied taking part in the throwing out of the bodies as he was not fit enough to do so.
It appears clear from the Applicant's evidence that this was an example of what has been termed "train violence". The terms "train violence" has arisen in connection with random attacks on commuter trains as occurring during the period of negotiations in the beginning of the 1990s. Whilst death and injuries have always been occurring on the railway system, it is commonly agreed that violence on trains and stations assumed a political character during that period. The fact that train violence contributed to the general destabilisation of South African society has added to the understanding of the violence as political in nature. In its final report, the Committee appointed to inquire into Train Violence (chaired by Gert Steyn and part of the Goldstone Commission) noted that "the violence on trains is inextricably linked to the political violence in the country." The Commission was finally unable "..... to establish whether train violence is aimed at achieving any particular political goal," but it noted that "it certainly has the effect of hindering the peace process."
The first incidents of train violence took place in July 1990, after which train violence quickly became part and parcel of the violence on the Reef. It basically vanished after the April 1994 elections. Incidents usually happened during peak hours, early in the morning and evening, when the carriages were bulging with passengers.
The regions affected by train violence were particularly the East Rand, Soweto, and the Johannesburg area. Originally, attacks were primarily confined to trains travelling between Johannesburg and Soweto, between Germiston and Katlehong, and between Germiston and Johannesburg, but later they extended to the East Rand as well. In the present instance the train violence appears to have been aimed at promoting or preventing the recruitment of commuters travelling to and from work as union members.
It is commonly agreed that train violence was closely related to other political violence occurring in the country at the time, of which so-called "black-on-black" violence was a major component. In its interim report, the Goldstone Commission concluded that "the violence on the trains cannot be separated from the ongoing violence in the townships. The primary causes and participants appear to be the same."
We are satisfied that the Applicant has made a full disclosure of all relevant facts and that the offences committed by him were committed during the course of a continuing struggle between the party he belonged to and members of an opposition party and that his application for amnesty meets with the requirements set out in Section 20 of the Act.
The Applicant is GRANTED amnesty in respect of:
1. The murder of Mr Bheki Ndlela and Mr Isaac Zondi on 11 November 1993;
2. the unlawful possession of a firearm in contravention of Section 2 read with Section 1, 39 and 40 of Act 75 of 1969 during November 1993;
3. the unlawful possession of ammunition in contravention of Section 36 read with Section 1, 39 and 40 of Act 75 of 1969 during November 1993.
DATED AT CAPE TOWN ON THIS 9TH DAY OF MARCH 2001
JUDGE A WILSON
A-J C DE JAGER
ADV S SIGODI
