DECISION
This is an application for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act"). The matter relates to the killing of Christopher Mabika ("the deceased") on 14 September 1990 at Tlaza J Section, eLukwatini, in the then area of Kangwane, presently Mpumalanga Province. Pursuant to the incident, Applicant was arraigned and convicted on a count of murder and sentenced to 18 years imprisonment. The application was opposed on behalf of the next-of-kin of the deceased. The evidence of Sibongile Hlanga, the sister of the deceased, was led in opposition to the application. The salient features of the respective versions will be set out briefly.
According to Applicant's version, he was a comrade responsible for community affairs in eLukwatini, a rural area in Kangwane. He was a card carrying member of the Inyanza National Movement which was aligned and eventually became part of the African National Congress ("ANC"). There was no situation of real political conflict in the immediate area. Instead the struggle was directed against the system of oppression of the then National Party apartheid government. The immediate political issues related largely to the lack of adequate resources and the absence of services such as electricity and water.
The deceased was a member of the local police force and was regarded as a political opponent of the local comrades. The deceased, who was known as an aggressive person who had assaulted some of the local residents, had been involved in a conflict with the comrades. The specific incident that brought matters to a head was an assault which the deceased launched upon one of the comrades, Mandla, at the local taxi rank. On that occasion the deceased fired shots at Mandla. Pursuant to the incident criminal charges were laid against the deceased and the comrades wanted him to be arrested. In spite of a march to the Magistrate's offices, nothing came of the matter and the deceased was never charged. At a subsequent meeting of the comrades, it was decided that the deceased should be attacked and killed or burnt. In execution of this decision a group of comrades proceeded to the house in the area which was frequented by the deceased but did not find him there. The group smashed the windows of the house, whereafter they dispersed.
On the day of the incident, namely 14 September 1990, Applicant was at home when he heard gunshots in the vicinity. He went outside to investigate and found that it was his brother who had been shot by the deceased. A large number of people had congregated at the scene and some were pursuing the deceased who was trying to escape from the scene. The crowd eventually caught up with the deceased who was stoned and killed. The Applicant joined in the attack and also kicked and stoned the deceased. Applicant indicated that his brother was also a comrade. His joining in the attack upon the deceased was not motivated by a desire to revenge the attack upon his brother, although he was angered by that attack. He indicated that the deceased was attacked because he was a policeman, who was regarded as a political opponent of the comrades. The attack was, moreover, motivated by the earlier decision of the comrades to eliminate the deceased.
Ms Hlanga testified that she arrived on the scene after the attack. She had not witnessed any of the earlier events and was unable to shed any light on the specific circumstances relating to the killing. She disputed Applicant's evidence that the deceased was regarded as a political opponent of the comrades and indicated that this was impossible since the deceased had merely started working in the area two months prior to his death. She contended that there was no political conflict in the area and, moreover, that the deceased was supportive of the organisation to which the Applicant belonged. She also testified that the only incident that had occurred at the taxi rank, was on the occasion when certain taxi drivers assaulted herself and the other persons in her company at the time, which included the deceased. She indicated that on this occasion the deceased was a victim and not a perpetrator of any attacks as testified to by the Applicant. It is not immediately apparent whether Ms Hlanga and the Applicant were referring to the same incident. On Applicant's version, as indicated above, the deceased was the aggressor who had fired shots at one of the comrades, Mandla.
In assessing the merits of the application, it is borne in mind that the version of the Applicant is largely uncontroverted. Applicant was the only witness to testify about the actual circumstances surrounding the killing of the deceased. Ms Hlanga was, moreover, unable to dispute Applicant's version in regard to the fact that a decision had been taken at a meeting of the comrades to kill or burn the deceased in view of the deceased's opposition to the activities of the comrades. This is borne out by the Applicant's version that a large group of people from the community attacked and killed the deceased. It is highly improbable that such a murderous attack would have been triggered off by a minor assault upon Applicant's brother, in the absence of any pre-existing political animosity towards the deceased. The fact that the Applicant was a policeman at the time renders the existence of political animosity towards him even more probable.
In all the circumstances, we are satisfied that the version of the Applicant can be accepted as a full disclosure of all relevant facts. We are also satisfied that the incident arose from the political conflict which existed at the time. The incident accordingly constitutes an act associated with a political objective as envisaged in the Act and the application complies with all of the requirements of the Act. Amnesty is accordingly hereby GRANTED to the Applicant in respect of the killing of Christopher Mabika on or about 14 September 1990 at or near eLukwatini, Kangwane, presently Mpumalanga Province.
In our opinion the next-of-kin of Christopher Mabika are victims in respect of the incident and are accordingly referred for consideration in terms of the provisions of Section 22 of the Act.
SIGNED AT CAPE TOWN THIS DAY OF 2001.
JUDGE DENZIL POTGIETER
MR I LAX
MR J B SIBANYONI
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