DECISION
The applicant is applying for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act 1965 (Act 34 of 1995) hereinafter referred to as the "Act". The offences which is applying for are the following:-
(1) Murder of one Mr Ngwenya, a taxi driver which took place in Soweto on 9 July 1993; for which applicant was convicted and sentenced to 15 years imprisonment.
(2) Armed robbery of the minibus vehicle which was driven by Mr Ngwenya but owned by Mr Albert Moloi which took place on 9 July 1993 for which the applicant was convicted and sentenced to 10 years imprisonment.
The applicant made his application by way of filling in the prescribed form. This form was duly signed by applicant, properly attested to and submitted before the cut-off date.
This application was opposed by the family members of the victim and the victim's uncle Mr Edward Mabizela was also called to testify. The applicant, 33 years old testified that he was a member of the Inkatha Freedom Party (IFP). At the time of the incident he was an assistant secretary to the Youth Branch of the party at Jeppe Hostel in Johannesburg. He testified that he joined the organisation in 1975 whilst he was still at school. His whole family were Inkatha members. He moved to Johannesburg and obtained work at the Braamfontein Hotel from 1987 until 1993 when he was arrested. Although he stayed at the Jeppe Hostel he also stayed in Mofolo South in Soweto.
THE BACKGROUND AND THE POLITICAL CLIMATE
The applicant testified that in 1993 there was tension between the IFP and the African National Congress (ANC). People were being killed and whenever they used to go to rallies or meetings they, the IFP would encounter some disturbance from the opposing organisation that is the ANC. Further there was also violence in the trains, people would be thrown out of the windows from moving trains. There was also extra tension at that time because of the build up to the elections.
THE INCIDENT
The circumstances which led to this incident on the 9th July 1993, were that there was going to be an IFP conference in Ulundi. A meeting was held prior to the conference in Jeppe Hostel. The leaders of the IFP in the hostel were organising in preparation for the conference and making arrangements for transportation. The applicant was one of the people who were making arrangements for the transportation. A caucus was held where the leadership discussed ways and means of obtaining transport for the masses. Present at the meeting was a certain Mr Mazibuko, Mr Mkhize as well as a certain Lamula. Mr Mazibuko suggested that a car be hijacked. The other person who was given an order to hijack a car was a certain Mr Buthelezi. The caucus took place about 2 days prior to the date of departure.
On Friday the day of the hijacking and murder the applicant left work and went to the township in order to fetch his firearm which he had left in his room in the township. After he had obtained his firearm he went to his friend whose name was Nhlanhla Zondi. They went to the taxi rank near Baragwanath Hospital. On their arrival at the taxi rank they looked around to see which taxi they would hijack. He stated that they looked for a taxi which looked new joined the queue ad then boarded the taxi. Inside the taxi they could hear the passengers discussing the political conflicts in the area. They mentioned that they disliked the hostel dwellers and that they should leave the area. The final destination of this taxi was Umndeni terminus in Soweto. After all the people got off, the applicant then questioned the driver as to his political affiliation. The driver stated that he was an ANC supporter. When he mentioned this the applicant pointed his firearm at the driver. After producing the firearm he moved him from the steering wheel and instructed Nhlanhla to point his firearm at him so that he could drive the vehicle.
They then drove to Jeppe Hostel. At the Hostel the driver was left with Nhlanhla so that the applicant could go and report that he had acquired a vehicle. On his return he discovered that there were a lot of people surrounding the vehicle. At that point there was a discussion held, that "because the man had seen, he could easily identify us, that is why it is better to kill him".
After this decision, the applicant, Nhlanhla and other hostel dwellers proceeded towards Denver and came up on an open veld, where the driver was off-loaded and shot. The person who shot was Nhlanhla Zondi. The applicant stated that he did not fire any shots at the deceased. Nhlanhla fired three shots.
After this murder the applicant was ordered by Mr Mazibuko to go ad fetch the firearms at Jabulani township in Soweto. On his way to Jabulani township he decided to go and pick up a friend who he had promised to give a lift whose name was Jabulani Majola. This Jabulani Majola worked with the applicant at Braamfontein Hotel. He had promised him a lift because he was going to a religious ceremony held at his home in Nqutu. On their arrival at Jabulani's home they were spotted by another vehicle a Skyline. They were then chased by this car. After the chase they were involved in an accident and then fled the scene.
This application was opposed by the victim's family. A certain Mr Edward Mazibuko who was the deceased's uncle was called to give evidence. We do not intend to deal with his evidence, as his evidence was fraught with inconsistencies and will not influence the decision of the Committee.
The applicant's application will be dealt with solely on his own evidence.
The first point to be dealt with is why was the vehicle hijacked. According to applicant it was to be used for transporting people to the IFP conference at Ulundi. He was one of the transport organisers. He stated that there were buses which were going to be made available for the IFP supporters. He mentioned that there were about 5 buses available. He however did not know how many buses would be available for the Jeppe hostel dwellers.
He was asked as to how his committee arrived at the conclusion that they need three extra kombis, he stated that the people who were going to get spaces in the bus were not that many. Yet on his evidence he created a picture that they were under immense pressure from a lot of the hostel dwellers to obtain transport.
Secondly despite the fact that there was agitation from his own members about transport, he had the nerve to give a lift to a friend who was not even going to the conference. He thus compromised the seat of one IFP member. It is the view of this Committee that his version is improbable that he sought to use the taxi for an IFP conference.
The other aspect which is of concern to the Committee is the reason why the driver was killed. He first said that the driver was asked what political organisation he belonged and he said he was an ANC. However, when they arrived at the hostel the decision to kill him was because the deceased had identified his assailants.
At page 350 he was asked if the driver would have been killed even if he was not an ANC member. His reply was:
"Yes, but I cannot be absolutely sure about that----------."
At page 334, he was asked as to why the driver was taken to Jeppe hostel. His reply was:
"The reason why we did not leave him, was because we were not certain whether he had been telling us the truth and because of the reason that there were hostel residents who had families who drove taxis, they could perhaps identify him if he was really an ANC person".
At page 364 he was again asked why the driver had to be taken back to Jeppe:
Adv. Sigodi: Okay. The third point which I want to come to is, I still to understand why you did not leave the driver in the township, why did you have to take him back to Jeppe? There were two of you, you could have easily pushed him out of the vehicle, why did you have to take him back to Jeppe.
Mr Mhlongo: That was part of the instruction that we should return with the person.
Chairperson: Are you saying to us Mr Mhlongo, that you were ordered to go and hijack a vehicle and bring the victim, the owner back? Is that what you are saying?
Mr Mhlongo: No.
Chairperson: So what did you mean then to say that you were told to bring him back?
Mr Mhlongo: I am trying to explain that we had been told that if we encounter a person who is from the opposing camp that we were fighting, we should either kill him or return with him to the hostel.
Adv. Sigodi: To do what? To do what with him at the hostel? Why was it necessary to bring him back to the hostel if you could have killed him immediately?
Mr Mhlongo: I did this so that I could show the other persons at the hostel that I have conducted the task satisfactorily.
Chairperson: Wouldn't the vehicle itself be evidence of that?
Mr Mhlongo: I do not know, but they were satisfied when I arrived with the driver.
Adv. Sigodi: What happened when you arrived at the hostel? Because in your evidence you mentioned that the people came around and they were very happy that you got the kombi and then decided to take the driver away to kill him because he had identified you? Is that all that happened?
Mr Mhlongo: That is what happened.
Adv. Sigodi: Is that what happened?
Mr Mhlongo: I don't remember anything else.
Adv. Sigodi: If I recall your evidence clearly, you mentioned that you brought him back because you were not sure, that he was ANC.
Chairperson: Earlier you said you brought him back because you thought he may not have been telling you the truth when he said he was ANC, and you brought him back to the hostel in case somebody could identify him as being an IFP person?
Mr Mhlongo: That is correct.
Adv. Sigodi: What measures were taken to identify him there? Nowhere do you tell us that measures were taken to identify him as either IFP or ANC or some other political party?
Mr Mhlongo: We gathered that from what he told us.
Adv. Sigodi: Thank you Chairperson.
It is the Committee's view that the applicant was desperately trying to bring his actions within the ambit of the Act.
The Committee is however as a result of these discrepancies not satisfied that there was any political motive for the killing of Mr Ngwenya.
Accordingly amnesty is REFUSED.
SIGNED ON THIS THE DAY OF 2001.
JUDGE S MILLER
ACTING JUDGE DE JAGER
ADV S SIGODI
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