: DECISION
The Applicant applied for amnesty in terms of Act 34 of 1995 for the kidnapping of Monde Nondumo at Mangwani during 1990.
The Applicant testified that at the age of 15 he joined the Port Elizabeth Youth Congress which was an affiliate of the United Democratic Front. During 1990 he was chairperson of the local branch of the Youth Congress. He personally knew the deceased, Monde Nondumo. At the time there were rumours that the deceased was working with one Sipho Pungola, a returned exile, who was believed to be an askari. This resulted in the deceased being called to several meetings to explain his association with Sipho. The deceased used to carry a gun and this was not approved of by the community. The deceased was fetched by the Applicant and other comrades and brought to a meeting of the community in the open veld where he was questioned about the rumours.
The Applicant testified that he was not present when Monde was killed and necklaced and only learnt about the killing the morning after the meetings. He said that the killing took place contrary to the policy of the Youth Congress and against what he himself advocated. The people at the meeting, however, would not listen to him and he quitted as chairperson and went home.
The Applicant is not applying for amnesty in respect of the murder of Mr Nondumo but for his kidnapping. On being questioned by the legal representative of the deceased's family about the deceased's reaction on being confronted and asked to attend the meeting, the Applicant replied:
"He just got up and went to the meeting, he did not show any form of resistance."
"So you did not have to force him all the way to the meeting, he just went with you voluntarily?"
"Yes, he just got up and he walked on his own."
He later reiterated that the deceased got up peacefully and voluntarily and accompanied them to the meeting. He at no stage took Monde forcibly anywhere, no compulsion was used.
It is common cause that the deceased was given a comrade's funeral when he was buried and the Committee accepted that the Applicant did not partake in the murder of the deceased and that his remorse about the death is genuine.
The Applicant was later asked about the meeting which he chaired before leaving. He testified that the deceased was accused that he had killed some of the comrades, that he intimidated people and that he committed robberies.
When further examined about the manner in which the deceased was persuaded to attend the meeting, the Applicant said after he had been dragged out of the house by other comrades he walked to him and told him that he was wanted at the meeting. The deceased then accompanied them.
In an affidavit by the Applicant which formed the basis of his oral evidence before the Committee the Applicant stated:
"I was part of the group that went to seize Monde Nondumo ......"
He then explained that this means that they went to fetch him and added he came voluntarily.
He further stated in the affidavit:
"I admit taking part in the abduction of Monde Nondumo."
On being asked what he understands by the word "abduction" he replied that it means "to having fetched him and taking him to the meeting."
The Committee, having heard the evidence, had to decide whether the Applicant admitted that he committed any offence or delict as required by Section 20(1)(b) read with Section 20(2) of Act 34 of 1995. In the previous paragraphs the evidence of the Applicant reflected how the Applicant subjectively interpreted the behaviour of teh deceased. The Committee also paid attention to certain objective facts. One of those facts, being the fact that the Applicant was found guilty of kidnapping Mr Nondumo after the Court heard evidence at a trial where other witnesses also testified. Another aspect which was considered is whether a man would voluntarily remain at a meeting after being accused by an obvious hostile crowd of murder, intimidation and criminal conduct. It was dragged out of the Applicant that the hands of the deceased were tied together at a later stage during the meeting.
The Committee is satisfied that notwithstanding the Applicant's interpretation of the situation, the deceased did not voluntarily attend and remain at the meeting. He was at least forced to stay there and that would amount to kidnapping. The problem however does not end there.
Did Applicant's act or omission, on his evidence before the Committee, satisfy the requirements laid down in State vs Mgedezi and Others 1989(1) SA 687 AD for the commission of an offence on the basis of common purpose? Did he perform some act which manifested his sharing of a common purpose to kidnap the deceased? On the evidence he was the chairperson of the meeting where the deceased's presence was required and he went with and associated himself with the group that went to the deceased's place and dragged him out of the house.
The Committee is also satisfied that there was a prior agreement "to go and fetch" the deceased.
There is no doubt in our minds that if the deceased had refused to accompany them he would have been forced to do so. The fact that he, according to the Applicant, "voluntarily" accompanied them was no doubt brought about by the threatening attitude of the crowd who came to fetch him.
The question that remains to be answered is whether this kidnapping was associated with a political objective? On the evidence before us the purpose of the meeting was to confront him with allegations that he made common cause with one Sipho Pungola who was believed to be an askari and further that he was responsible for the death of one of the comrades and intimidated and robbed people. In the context of the then prevailing circumstances this was associated with politics.
In the result amnesty is GRANTED to the Applicant in respect of the kidnapping of Monde Nondumo during 1990 at Mangwani.
It is recommended in terms of Section 22 of Act 34 of 1995 that Mrs Lindiwe Nondumo be declared to be a victim in terms of the aforementioned Act.
SIGNED AT CAPE TOWN ON THIS THE 26TH DAY OF MARCH 2001
JUDGE A WILSON
D POTGIETER A-J
C DE JAGER A-J
