: DECISION
The Applicant applies for amnesty in respect of crimes by him (and others) in relation to drive-by shootings in Sebokeng on the 12th July 1993. The Applicant was convicted on 19 of the 58 charges on which he stood trial, on the 24th August 1994 and sentenced to 226 years imprisonment with an effective sentence of 20 years imprisonment. His co-accused was acquitted. Four (4) of the nineteen (19) charges on which he was convicted, are in relation to murder, thirteen (13) to attempted murder and two (2) to robbery with aggravating circumstances.
The Applicant filed two formal and duly completed applications in relation to the shootings (respectively dated 12 June and 3 December 1999). In addition an affidavit, dealing with the above incident (as well as with his involvement in the Boipatong massacre, the subject of another application by the Applicant), was signed and attested to on the 14th December 1996.
The facts pertaining to this incident, which are not in contention, may be summarised as follows:
There was ongoing violence in the Vaal Triangle, and specifically in Sebokeng, between the ANC and IFP. Supporters of the IFP had to flee their homes as had the Applicant. The Applicant found refuge in Kwa-Madala hostel, an IFP-stronghold. He became deputy chairperson of the IFP youth brigade. On or about the 10th of July 1993, Victor Kheswa, also known as the Vaal Monster died. On the night of the 12th July 1993 the Applicant, Themba Mabote, Sipo Lukozi and Clemence Cindy boarded a taxi for Zone 3 in Sebokeng. All of them were armed with 9mm pistols. They alighted from the taxi and entered the premises of the Ndlovu family where they at gun point robbed them of R1 900 in cash, a white Toyota Cressida, a motor vehicle, a 9mm Luger pistol and 50 rounds of ammunition, a wrist watch, an ID document and clothing items. (The Applicant admits to the robbery of the vehicle, and the firearm and ammunition, does not contest the possibility of his friends having taken the other items, but maintains that he did not observe this).
From there they travelled in the Cressida, driven by Mbato, where at various places they randomly shot at people in the street, killing some and injuring others. Another vehicle, a Honda Ballade, PPL 934T, was robbed at gunpoint from Magdaline Masilo in Zone 14 Sebokeng in which the Applicant and his friends returned to Kwa-Madala hostel, abandoning the vehicle in the vicinity. It is also common cause that the Cressida was set alight and burnt out.
The Applicant applies for amnesty only for those crimes on which he was convicted. He relies on an order allegedly issued by Prince Vanana Zulu who was the leader of the IFP in Kwa-Madala hostel.
The application was opposed on behalf of the victims by Mr Brian Koopedi and on behalf of the implication party, Mr Zulu, by Mr Van der Heyde. Their versions were stated in cross-examination but no evidence was tendered. Ms Cynthia Pretorius appeared for the Applicant.
The formal application before the Committee complies with the provisions of the Act. The Committee is further to be satisfied, in order for the Applicant to be granted amnesty, firstly that the acts of the Applicant were committed with a political objective and within the context of the conflicts of the past and secondly, that the Applicant has made a full disclosure of all material facts relevant to his acts which constitutes the crimes for which amnesty is sought.
As far as the first requirement is concerned, however, it is clear that the Applicant relies solely on the orders he had allegedly received from Prince Zulu. He made it clear that he would not have been involved but for the alleged order. The version put to the Applicant on behalf of Zulu, was that he had never given such an order, nor issued them with arms and ammunition, that Victor Kheswa was a close friend of the Applicant, that they belonged to a gang that went around the township, shooting people, stealing and robbing cars. They were common criminals and their activities had nothing to do with politics.
The Applicant was less than a satisfactory witness. In his affidavit of the 14th November, augmenting his application, he already stated that Kheswa "was known to be a person who was hijacking cars, stealing cars and killing people ...". These however were stories that had their origin with people who were envious of him because of his wealth.
In the same document he specifically claims that at "several times" during 1993, Zulu ordered himself Kheswa, Mabote and Lukozi "to go out and kill the people of the ANC", supplying them with weapons and ammunition, and further that "every time we came back after going out and shooting ANC people at random" they would return the weapons.
When he was led on this issue in evidence in chief he denied it. The transcript of the record is quoted:
"MS PRETORIUS: This was not the first time that you have gone out getting weapons for Mtwana Zulu and getting instructions from him, was it?
MR MTHEMBU: That is correct.
MS PRETORIUS: You had done this before?
MR MTHEMBU: Previously we would go to Sebokeng because I would be in the company of people who grew up there who had friends and relatives living in that area. We had a problem that if we had done this during the day their houses would have been burnt down because they would have been seen in our company.
MS PRETORIUS: Mr Mthembu, the question is did Mtwana Zulu give you orders to go and shoot people in Sebokeng prior to the 12th July 1993?
MR MTHEMBU: No."
It was further put to the Applicant that at the scene of the robbery at the Ndlovu home he seemed to have been in command. He replied "... we never put any commander whenever we were going out on those missions".
When questioned about the number of bullets spent, his response was "even though I am not certain but usually whenever I had taken a gun and I went on a shooting spree I would leave at least four bullets in my gun in order to protect myself ... while I am escaping the area".
When the inconsistencies were pointed out to the Applicant he admitted that he had been on earlier shooting sprees bur never before on instructions of Zulu. At the end of his testimony he was asked by the Panel to clear up the position with regard to earlier shootings and asked specifically again whether he had ever been involved in incidents of shooting before the 12th of July. His response was that there were instances where people had shot at them and at those instances they had gone to report to police but he had not fired his gun on those instances.
It must be accepted that the Applicant had been out before this date on a number of similar shooting sprees. Too often in unguarded moments did he refer to a pattern of shootings. His denials of such involvement simply has no ring of truth.
In contrast, though stating in the affidavit that Zulu on several times had called on them and given them instructions, it was in his evidence in chief emphatically stated that they on no other occasion than the present, had received such instructions from Zulu. It is difficult to conceive why Zulu would have given instructions on this one occasion but not on any of the others. A document, Violence in the Vaal, which was handed in at the hearing by consent of all parties and which appeared to be a working research document, lists a number of other drive-by shootings which were of a conspicuously similar nature, one of which Applicant had also been prosecuted on but acquitted as the Applicant could not be linked to the incident.
There were a number of other issues such as the theft of cash and other items at the Ndlovu home which the Applicant did not observe; the time of burning of the Cressida, where corroborated evidence during his trial was that the Honda Ballade was hijacked while they were using the Cressida as against Applicant's evidence that they had already burnt the Cressida and were travelling on foot in enemy territory when they robbed the Honda; and a host of other minor aspects on which the evidence of the Applicant was either false or less than frank.
The Committee cannot find that the Applicant on his version had acted under the instructions of Prince Vanana Zulu and under the circumstances, whatever the Applicant's true political objective, if any, was, that he had complied with the requirements of Section 20(2) of the Act. Furthermore the Committee finds that the Applicant's evidence was less than frank and that he did not make a full and truthful disclosure.
Amnesty is therefore REFUSED.
SIGNED ON THE 13TH DAY OF MARCH 2001
JUDGE S MILLER
ADV N SANDI
MR W MALAN
