DECISION
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995. The Applicants are currently serving long terms of imprisonment for the following offences in respect of which they are now seeking amnesty:
1. The murder of Jacob Manoto ("the Deceased);
2. Housebreaking with intent to commit murder;
3. Assault with intent to do grievous bodily harm to Mary Manoto;
4. Assault with intent to do grievous bodily harm to Beverley Manoto;
5. Assault with intent to do grievous bodily harm to Marvin Manoto;
6. Public violence;
7. Any offence or delict flowing from the incident.
All the offences were committed in Diepkloof, Soweto, on or about 21 April 1993. At the relevant time all the Applicants were supporters of the African National Congress ("ANC") and were all involved in the events leading up to the attack and eventual murder of the Deceased. It is, however, clear that the latter fully associated himself with the actions of the mob who attacked and killed the deceased. The undisputed facts of the matter are that on the day in question a large crowd of ANC supporters gathered at the Lutheran Church Hall in Zone 5, Diepkloof. They were discussing problems affecting the community such as crime and the existence of police informers. In particular, there was an allegation that the Deceased had reported to the police that his neighbour, Vusi Charles Fakude, was in possession of arms. It was further alleged that the police had come to Fakude's home and conducted a search. It was as a result of this incident that the Deceased was seen as an informer. In the atmosphere of rage which dominated the proceedings of the meeting it was decided that the Deceased should be confronted. The venue of the meeting was near the home of the Deceased. When the mob went to confront him he put up resistance. In the ensuing struggle he was killed and set alight by the angry mob of which the Applicants formed part. His wife, Mary, and his daughter, Beverley and son, Marvin, were assaulted. It is quite clear that before the occurrence of the incident the relationship between the two families viz the Fakudes and that of the deceased was far from a happy one. Tensions were so high that the deceased had erected a wall which served as a boundary between the two yards. At some stage there was a clash between the deceased and Vusi Charles Fakude. It was alleged that the latter had threatened to shoot the deceased. The deceased then sought protection from the police. It has been testified that at the time there was a violent conflict between the community and members of the South African Police Force ("the SAP") and for the deceased to have sought protection from the SAP was tantamount to treason in the eyes of the Diepkloof residents who generally supported the ANC. The meeting which was held at the Lutheran Church Hall was not only attended by ANC Youth League members but also by elderly members of the community who supported the ANC. They took part in the discussion about the deceased and his unacceptable behaviour. It is also quite clear from the evidence that was led that for some time before the events herein referred to the deceased was seen as an anti-social person who opposed the ANC and its activities. It further appears that matters came to a head when the deceased "collaborated" with the police. There is also evidence that earlier there was another meeting which was called by the ANC Youth League branch of Zone 5, Diepkloof, and the deceased was a subject of discussion. At the end of that particular meeting it was resolved that some sort of action be taken against him. It is not entirely clear what action exactly was contemplated.
The applications are being opposed on the basis that the incident had nothing to do with politics and that it was simply a dispute between the deceased and Fakude. It is further submitted that Fakude had tried to politicise the matter by involving ANC supporters in his dispute with the deceased. We intend to address these arguments later but shall first deal, very briefly, with the position and evidence of each Applicant. We commence with Shabangu.
Shabangu testified that he was an ANC Youth League supporter. He did not have personal knowledge of the deceased but he was aware of the rumours that the deceased was an informer. He stated that he was present at the ANC Youth League meeting which was held at a school where they also spoke about a certain boy who had raped a girl. Action was going to be taken against the boy. The meeting also discussed the deceased and it was resolved that the case be referred to the Diepkloof Civic Organisation. Fakude and the other complainant, that is the parent of the girl who was raped, were referred to the Civic Organisation in order that their cases could be resolved by elderly members of the community and not the youth who were regarded as being too young to call the deceased and ask him questions. Shabangu stated that later it was announced that a general meeting had been called for 18h00 by the Civic Organisation at the Lutheran Church Hall. At the meeting Mrs Tshabalala, the mother of Sipho Victor Tshabalala, reported that the police came to search her house. According to her the police were looking for firearms. She believed that they were sent by the deceased. Shabangu states that another speaker at the meeting was Makoba, an elderly members of the Civic Organisation. He reported that he had seen the police at the home of the deceased whence they proceeded to the house of the Tshabalalas. A suggestion was made by one of the attendants at the meeting that a group of elderly people be elected to go and ask the deceased about the allegations against him. This suggestion which initially seemed to enjoy support was disregarded when a certain lady, Anna Gumede, stood up and suggested that the deceased be killed because he was a traitor to the struggle. This had the effect of swaying the emotions of the crowd in the hall and immediately they moved to the home of the deceased. They were toyi-toying and chanting slogans as they were advancing towards his home. They found the deceased on top of the roof of his house. He was throwing stones at the crowd. The crowd also stoned the deceased and his house. In the end the latter was overwhelmed by stones from the crowd. He ran into his house where he locked himself up. The crowd entered and dragged him out. He was killed on the scene with stones. Shabangu stated that he struck the deceased several times on the head with an iron rod and poured paraffin on his body. He was then set alight. Shabangu stated that although he had no proof that the deceased was a police informer, he, just like the others, believed that he was an informer.
Thanjekwayo testified that at the time he was a member of the ANC Youth League and the anti-crime committee of Diepkloof, Zone 5. He states that he was present at the meeting which was held at the Lutheran Church Hall and took part in the march to the home of the deceased. He was armed with a stick. On their arrival there, the daughter of the deceased, Beverley Manoto, threw boiling water at them. He says he struck her with a stick. He also took part in the general assault on the deceased. He doused him with petrol and set him alight. When Thanjekwayo was asked in what way the assault on Beverley was an act associated with a political objective, he explained that Beverley was obstructing them in the achievement of their political objective viz getting to the deceased and killing him for being a police informer. He stated that even then he used force which was only necessary to get her out of the way.
The testimony of Nyaluko generally confirmed the evidence of his co-applicants but he added that the aim of the group was to have a discussion with the deceased about his alleged activities and in particular the allegation that he had reported Fakude to the police. He stated that when they came to the deceased's house it was not possible to have such a discussion with him because he reacted by throwing stones at the crowd from the roof. Nyaluko also stated that when the deceased ran into the house he, Nyaluko, when into the adjoining house where he opened the window and threw an iron object onto the roof of the house of the deceased. He said that his aim was to damage the roof so they could gain entry into the house. He stated that when he came to the premises of the deceased his companions were already there. They were assaulting the deceased. He stated that he joined the assault and burnt the vehicle of the deceased. He had no personal grudge or malice against the deceased because he did not even know him and his family. He only believed that the allegations about him were true.
Zondo testified that although he and the deceased were neighbours, they were not on speaking terms because the deceased hated the ANC and its supporters.
The deceased knew that he was an ANC supporter. Zondo stated that he also hated informers and the deceased was also believed to be one and a supporter of the previous government. The deceased was always involved in quarrels with his neighbours and as a result there was very serious animosity between them. The deceased feared for his life and fortified his house with high walls, razor wire, burglar bars and spiked steel fencing. He always kept his gate locked. Zondo stated that he was also aware that there was "a particularly virulent quarrel" between the deceased and Sipho Victor Tshabalala who also lived next to the house of the deceased. At the time Zondo very strongly believed that the deceased was taking all the protective measures because he knew that as an informer he could be attacked at any time. But he said he was concerned that the deceased should not be summarily executed. He believed that the matter should be referred to the elders of the ANC, the street committees and the local Civic Organisation. He said that at the subsequent meeting the conciliatory approach which was adopted by the elders was disrupted by Anne Gumede who according to him incited the youth. As a result the youth rushed out of the hall and went to the home of the deceased which they surrounded "like a swarm of angry bees". He says there was nothing he, as a person, could do about the situation and was only "frustrate" that he could not join the mob because he would have been identified, since he was a neighbour of the deceased. He further stated that although he would have preferred the conciliatory approach at the initial stage when it was decided to attack the deceased, he associate himself with the eventual action of the mob although he did not join the mob. He went to visit his girlfriend. he said he did not lend any support to the deceased to save his life and his family because he agreed with what was being done to them by the group. He stated that although he had a telephone at home he never called the police to come and protect them. He said he had no personal grudge against the deceased but only hated him for being an informer. At the criminal trial it was testified by the widow of the deceased that Zondo was one of the assailants who descended from the roof into the dining room and that he dragged and handed her over to one of his companions. Zondo denied this and maintained that he did not participate in the execution of the attack on the Manotos by the mob. We do not consider it necessary to make a finding on the dispute since Zondo very clearly associated himself with the action of the mob. It cannot be said that he did not make a full disclosure of the relevant facts.
Fakude testified that during the time in question he was a member of a street committee. He was also a neighbour of the deceased and the police frequented the house of the deceased. He believed the deceased was a police informer and on the day he was attacked by the mob, although he could have telephoned the police, he did not do so. Instead of lending assistance to him, he allowed some of the assailants to use his house as a means of getting to the premises and house of the deceased. He state that he attended the public meeting whereafter the crowd proceeded to the house of the deceased. He said that it would not have been possible for the mob to gain entry into the house of the deceased without his assistance because the gate was locked and the walls were high. Their houses were joined together as part of the same construction. Under cross-examination, Fakude said on one occasion before the incident he had a quarrel with the deceased because the wall he had built encroached on his property. later the deceased complained that Fakude's gate was making a noise. They were, however, able to settle the matter because the deceased gave him a pole to fix up his gate. Thereafter, they would only greet each other and never used to talk about anything.
Sipho Victor Tshabalala testified that on 18 April 1993 he was coming from the church and was clad in the uniform of his church. The deceased who was his neighbour called him and asked how the church service was that day and he told him how it was. After the deceased asked if he knew that the Bible dictated that one should love one's neighbour. To this he replied in the affirmative. The deceased then asked why he was carrying a firearm and he replied that he had no firearm in his possession. Tshabalala left the deceased after this exchange. Tshabalala said the next day when he was at work he received a telephone call from his sister, Thoko Tshabalala. She told him that the police had come to his house and conducted a search for firearms. They did not find any firearms there. According to her, from their place the police went to the house of one Mr Makoba, where they also conducted a search. They had also visited the house of Mr Mbatha. These were all ANC supporters. Thoko also told him that after the police had left, two ANC activists came to his house to ask what the police were doing. They were told by Thoko what had happened, vis that the police had come to search the place for firearms. The two activists suggested that the matter be reported to the ANC Youth League and other community-based structures. When he returned from work he learnt that Thoko and his wife had already left to report the matter to the ANC Youth League. He followed them. At the meeting which was held on the same day it was resolved that the deceased should be killed but Patrick Themba Zondo disagreed. He suggested that the matter be discussed with embers of the street committee and the elders in the ANC and the civic organisation. This was accepted and it was followed by a meeting on 21 April which was held at the Lutheran Church Hall. Tshabalala's evidence as to the occurrences in the hall coincides with that of his co-applicants. It is not necessary to repeat it. He confirmed that when they came to the house of the deceased he also threw stones at him and his house. He also kicked the deceased's wife because he believed that she was married to an informer. He stated that he was very angry that the deceased had tried to get him into trouble with the police because they could take him to a remote place for torture and possibly even kill him. He stated that the confrontation between the deceased and the crowd took quite a while and that there was some delay before they were able to enter the place. Whilst he was there he received a message that he should go home at once. His sister had apparently fainted and he was required to take her to hospital as a matter of urgency. He left without having assaulted the deceased. He stated that at the time he knew that the deceased would possibly get killed in the attack. He fully associated himself with the intention of the mob to kill the deceased, but he was not present when the actual killing occurred.
We are satisfied that the Applicants have complied with the requirements of the Act and that the offences committed are "acts associated with a political objective" as required by the Act. We are also satisfied that the Applicants have made a full disclosure of the relevant material facts. We are not persuaded that the incident occurred solely as a result of the quarrels between the deceased and some of the Applicants. A holistic view of the evidence that was led leaves us with no doubt that the incident occurred as a result of the political conflicts of the past. There is no evidence that any of the Applicants bore a personal grudge against the deceased. The Applicants have all testified that at the time they subjectively believed that the deceased was an informer. We are satisfied that they had reasonable grounds for this belief. It is a notorious fact that in the course of the conflicts of the past a person could be killed at the slightest suspicion of being an informer. This is certainly what happened to the deceased. However, this ruling should not be understood to establish that the deceased was indeed an informer. We deliberately refrain from making a definitive finding in this regard and mainly concern ourselves with the subjective beliefs of the Applicants at the time of the occurrence of the incident. There is also no vive voce evidence before the Committee to contradict the testimonies of the Applicants.
In the result, amnesty is GRANTED to all the Applicants for all the offences referred to above.
It is recommended that the following persons be declared victims in terms of the Act:
1. Mary Manoto;
2. Beverley Manoto; and
3. Marvin Manoto.
DATED AT CAPE TOWN THIS DAY OF 2001.
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JUDGE D POTGIETER
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ADV N SANDI
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ADV F BOSMAN
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