DECISION
INTRODUCTION AND BACKGROUND
These are applications for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act 34 of 1995 ("the Act"). The Applicants in this matter are presently serving long terms of imprisonment for the following crimes in respect of which they are now seeking amnesty:
1. The murder of Shamam Bakhshandegi;
2. The murder of Hooshmand Alex Anvari;
3. The murder of Riaz Razavi;
4. The robbery of Riaz Razavi of a Jetta motor vehicle;
5. Unlicensed possession of arms and ammunition.
The three Deceased were killed on 13 March 1994 at the Bahai Faith Centre, Mdantsane, when the Applicants and their companions stormed the place. They also robbed Razavi of a Jetta vehicle.
After this particular attack, the Applicants were again involved in further incidents in which they attempted to kill whites in terms of what they say they understood to be the policy of the PAC and APLA. It is as a result of those incidents that they further seek amnesty for the following offences:
6. The attempted murder of Bruce Keetles, Robert Melville and Mthuthuzeli Simon Pellem with a machine gun at or near the Nahoon Dam turn off, East London, on or about 25 March 1994. (Only Pellem was injured);
7. Conspiring and attempting to ambush white pupils at or near the Nahoon Dam turn off travelling in a bus from King William's Town and en route to East London on or about 25 March 1994. (No person was injured);
8. The abduction and armed robbery of Khula Harry Magingxa of an Opel Record Station Wagon vehicle bearing registration letters and numbers GCE13507 in Mdantsane on or about 25 March 1994;
9. The abduction of Mzimkulu Maxwell Nofumba in East London on or about 25 March and forcing him to take them to numerous places with his vehicle in the Mdantsane-East London area where the Applicants committed crimes;
10. Theft of a Ford Sierra Station Wagon vehicle bearing registration letters and numbers CE59291 at NU 14 in Mdantsane, which belonged to Nomhle Faith Freddie on or about 25 March 1994;
11. Conspiring in Butterworth and subsequently attempting to murder white teachers at or near John Knox Bokwe College in Mdantsane in or about 25 March 1994. (This only applies to Ncamazana);
12. Conspiring in Butterworth to murder white patrons in the Railway Station Bar in East London on or about 26 March 1994;
13. The attempted murder of Matt Hughes, Errol Potgieter, Errol Wilson and other patrons in the High Gate Hotel bar in East London on or about 26 March 1994. (No person was injured in the incident);
14. Armed robbery of Petros Ndoda Matakane of a Honda Ballade vehicles bearing registration letters and numbers CE 88283 in Mdantsane, East London, on or about 27 March 1994;
15. The murder of Constable Williams a member of the Crime Reaction Unit at or near Da Gama Textiles Factory in East London on or about 28 March 1994;
16. The attempted murder of Zandisile Victor Klaas, Christos Stassions, Zaharoula Stassions, Basil Rush, Wesley McCleland, Harold Lockam, Colin Kopke, Alfred Kopke, Alfred Page, Ross Templeton, Deon Whittle, Eric Bedser, Trevor Bonnieface, Harry Wright, Johan De Berg, Harry Lockam, Lance Shephard, Valda du Plessis, Surayo Poovan, Anthony Button, Fredericka Hempel and Margaret Longanthan at or near the De Gama Textiles Factory in East London on or about 28 March 1994. (No person was injured);
17. The attempted murder of Craig Brown, Cecil Hunter and Gerhard Killian at or near Da Gama Textile Factory on or about 28 March 1994. (No person was injured);
18. The pointing of a machine gun at Charlie Lodewyk Postman at or near Da Gama Textile Factory on or about 28 March 1994 (This only applies to Ncamazana);
19. Contravening the provisions of Section 32(1)(a) read with Sections 1, 39 and 40 of Act No. 75 of 1969 in that during the period 25 - 28 March 1994 in the Mdantsane - East London area the Applicants were unlawfully in possession of unlicensed arms and ammunition;
20. Contravening the provisions of Section 32(1)(b), read with Section 1, 39 and 40 of Act No. 75 of 1969 in that during the period 25 to 28 March 1994, in the Mdantsane - East London area, the Applicants were unlawfully in possession of an M26 handgrenade and an M791 firing grenade.
At the relevant time both Applicants were members and trained cadres of the Pan Africanist Congress of Azania ("the PAC") and its military wing the Azanian Peoples' Liberation Army ("APLA"), respectively. Mbambo was not involved in the John Knox Bokwe incident which was carried out by Ncamazana and his companions. For quite some time Ncamazana and his companions did not know that Mbambo was also a trained cadre of APLA. Mbambo claims that he was trained by APLA in Butterworth in 1991. He received further training in Bizana and in 1994 was called to Butterworth by the APLA regional commander Xolile Ngxabane (alias Jimmy Jones). Initially he was told by Jones that his task would be to harbour APLA members and indeed the latter were sent by Jones to him to carry out operations in the area on behalf of APLA. He states that he did not know their full names and addresses and only gave them shelter. Likewise, when Ncamazana, Makabongwe Mfundisi (alias TNT) and Andile George (alias Kid) were planning to attack the bus which transported white teachers to John Knox Bokwe College in Mdantsane, he was not involved in the action. He was not even aware of the action and only heard of it for the first time when it was mentioned by the Police to his legal representatives. It was during their criminal trial and he was being implicated in the matter.
Ncamazana testified that he received military training under the auspices of APLA on the use of firearms, sub-machine guns, rifle grenades, AK-47, rifle grenade launchers, handgrenades, ambushing and political education. In terms of the political education which he received the government of the day, members of the Security Forces, the white people of South Africa and anyone who collaborated with the apartheid system were identified as enemies. He states that after the training he became a member of a unit which comprised TNT and Kid. Their base was in Butterworth near the Gcuwa Dam and his code name was Tiznado. Their regional commander was Jones, whilst Sabelo Maseko was their immediate commander. They took orders directly from him. He continues and says that on or about 9 March 1994, he, TNT and Kid were visited by Jones at the base. He told them that he wanted to discuss something with them about a mission which they were to carry out. The next day Maseko told them that he had received orders from Jones to take them to Mama's Restaurant where the latter was going to meet them.
On their arrival at the restaurant they were told by Jones that he wanted them to ambush a minibus which transported white teachers to John Knox Bokwe College in Mdantsane. The bus was to be ambushed as it approached the premises of the college and they were to use Mbambo's (code named Gcobani) house number 6809 NU 3, Mdantsane, as a base. Mdantsane-East London was going to be their operational area. Jones gave them R100,00 for travelling and food as well as firearms and ammunition; he gave Ncamazana an R5 rifle, TNT a 7,65 pistol and Kid an R5 rifle. They were also provided with two spare magazines and ammunition. Jones' order was to make a surprise attack and withdraw without confrontation. He appointed TNT to command the unit and after every time they carried out an attack they were to make a telephonic report to Mthuthuzeli Mama (code named Mthura) at Mama's restaurant. They did as they had been told and took a taxi to Mdantsane. In Mdantsane TNT took them to one Bayethe (alias) and Yumani (also alias) before they proceeded to Mbambo's place where they slept.
The next morning Ncamazana and his companions took their arms and concealed them under their clothes. They proceeded to the college. They waited for the mini-bus to come. When it came TNT made a signal. They opened fire but luckily for the teachers none of them were injured. By the time TNT called for a halt on fire, Ncamazana had already emptied the entire magazine from his R5 rifle. They retreated and went to hide themselves at the home of one Thembinkosi Nxiweni at NU 2, Mdantsane. Later that day they went to the Highway Taxi Rank wherefrom they telephoned Mthura to give a report. TNT gave the report. Mthura told TNT that he would send them a driver to fetch them and they were to bring Mbambo with them. In Butterworth they were given further instructions by ones. Mbambo was now part of the unit. (He did not take part in the John Knox Bokwe incident and states that he only became aware of it when it was referred to in the criminal trial.) According to the Applicants Jones told them that the next operation was the Bahai Faith Centre attack. They were told to kill all white people who were present there. The following is what happened.
THE BAHAI FAITH CENTRE ATTACK
On the 13 March 1994, Bakhshandegi, Anvari and Razavi were attending a religious service at the Bahai Faith Centre in Mdantsane. Mdantsane is a black residential area outside East London. At the time it was part of the former Ciskei homeland. The deceased who were not resident in Mdantsane occasionally visited Mdantsane for purpose of worship. The majority of the members of the church were blacks, the deceased being the only worshippers who were not blacks. Bakhshandegi was employed as a medical doctor at the Cecilia Makiwane Hospital, Anvari a computer sales technician and Razavi as Director of Finance at the University of Fort Hare. The Committee has been shown pictures of the deceased. They all appear to be quite fair in complexion but not totally white. Perhaps at first glance one would think they are members of the white race, if such a race exists at all. it is undisputed that they were Persians from Iran. We think it is quite apposite here to make a comment about the tragic consequences of the erstwhile system of racial classification which for many years was the policy of the previous government. The incident is not unrelated to the tragic past of our country.
We now revert to the facts of the case. Whilst the members of congregation were singing, the Applicants entered the church. They were armed with guns. TNT shouted as follows:
"Ama-Afrika (meaning Africans) this side and the Boers (Whites) that side."
He was commanding that "whites" (meaning the Deceased) separate themselves from the blacks. The three Deceased were grabbed and pushed towards the wall They were ordered to face the wall and with their hands raised. They complied. It was demanded that they produce their car keys. When they produced two sets of keys for the vehicles that were parked outside, Tona took them and chose the Jetta as the better one of the vehicles. TNT also commanded that the Deceased be searched for money which the Applicants say they required for petrol. An amount of about R60 to R70 was found in the possession of one of them. This was also taken. Whilst this was happening, one of the worshippers, Maria Pasiwe Manentsa, begged the Applicants to leave the Deceased alone because they were not whites in the usual South African manner of racial classification. She told the assailants that they were Persians from Iran. She pleaded with them to take a careful look at the Deceased. It is common cause that none of the Applicants responded to her request and in a matter of seconds one of the companions of the assailants shouted from the outside:
"What are you waiting for?"
The voice was urging those who were inside to shoot ("Shaya! Shaya! Shaya!). Shortly thereafter, the Deceased were executed in cold blood. The Applicants' companions in this attack were Mandla Phalaphala (alias Tona), Kid and TNT. It is not necessary to specify what specific role was played by each assailant, save to say that they all acted with a common purpose to kill the deceased and rob them of the car and money. TNT and Kid shot the deceased. Tona acted as the driver. Tona has not applied for amnesty. At the criminal trial he was a State witness. According to the Applicants, after killing the Deceased they all left and took the Jetta to ones in Butterworth. They state that they left the vehicle and the weapons with him. They claim that the vehicle became the property of APLA because it was its strategy to attack and rob whites and take the proceeds of such robberies for its own use. They all returned to their base in Butterworth. This evidence coincides with Tona's testimony at the criminal trial. Although there is no direct evidence to this effect, it seems to be common cause that the vehicle was later found abandoned in the vicinity of a crime after it was used to launch an attack on a Police station in Willowvale. The Applicants were not involved in the incident.
The Applicants' testimony is further that on 24 March 1994 and whilst they were at Mama's Restaurant Jones arrived. He gave them the following order, to attack a bus which conveyed white employees to and from Da Gama Textiles; to ambush a bus which transported white children from King William's Town to East London; to launch an attack on whites in the bar at the East London Railway Station; to attack whites at the High Gate Hotel in East London. All these attacks were going to be directed at whites in accordance with what the Applicants say was the policy of APLA. The orders were issued to the Applicants' unit which had now been joined by Msizole Mafu (alias Luvuyo). They state that they were issued with weapons by Jones, namely automatic rifles, machine guns, hand grenades, rifle grenades and pistols. The Applicants say they took public transport and arrived in East London very late that day. They spent the night at Mbambo's home where they slept. The next day went to the Highway Terminus in Mdantsane. There they took a taxi to Mount Ruth.
We do not think it is necessary to set out all the evidence in regard to the manner in which the attacks were carried out. Suffice it to state that according to the Applicants after the Bahai Faith Centre attack they committed the abovementioned list of offences in the course of executing what they aver were orders by Jones. Their modus operandi can be summarised as follows. They would hijack and/or rob a vehicle in order to have transport to travel to and from the targeted places and persons. They state that they required the vehicles to use them as getaway cars. On their way to Mount Ruth they hijacked the vehicle of the taxi man and ordered him to leave. When they could not operate the vehicle they called him back and demanded that he show them how to start the engine. This he did. He was then ordered to take them to Da Gama Textiles. When they arrived there the bus which conveyed the white employees had already gone past the gate. Their aim was to launch an attack with the rifle grenade and shoot the targets. From there they rushed to the Nahoon Dam turning point. They missed the bus which transported the white school children. It had already gone past. The Applicants say TNT was very disturbed that this was the second target they had missed. So much so that when he saw two white people in a Volkswagen Kombi which was passing by, he opened fire. He was shooting at the occupants. It was only after the vehicle had passed that they observed that a third occupant was a black man who alighted and fled. According to police records these people were Mthuthuzeli Simon Pellem, Bruce Kettles and Robert Melville. Pellem was shot in the buttocks. The white occupants accelerated and escaped. The Applicants say they do not know if anyone of the white occupants of the vehicle was injured and say they did not shoot in this particular instance because they did not agree with TNT's action. When they arrived at Mdantsane they told the taximan to leave with the vehicle. They gave him R20,00 for petrol.
We have decided to mention most of the facts pertaining to this incident because of its problematic nature. There was no order from their alleged commander for the attack and further, the Applicants have never associated themselves with TNT's action. The Applicants say that in the evening of the same day they proceeded to NU 6 in Mdantsane and subsequently hijacked a vehicle from a taxi man. They had waited for all passengers to alight and when it was only them and the taxi man left in the vehicle they instructed him to drive to their chosen destinations. But unfortunately for them, the taxi collided with another vehicle on the road. They say this was part of a deliberate plot by the man to escape. Indeed he fled. The Applicants say they ran away. In the same evening they burst into a shebeen at NU 14 in Mdantsane. All the patrons made to lie down on their stomachs. The Applicants threatened them by pointing firearms to ascertain who the driver was of the vehicle which was parked outside. When the driver was identified he was ordered to take them with the vehicle to the N2 National Road. When they got to Berlin they told him to alight. They left him there and went to a garage to fill up with petrol. Then they proceeded to the East London Railway Station Bar. No attack subsequently took place there because on their way to the railway station bar they passed the High Gate Hotel. Ncamazana states that whilst they were travelling in the vehicle he aimed a shot with the rifle grenade at the glass door of the High Gate Hotel Bar. He missed the target and the grenade hit the wall. No person was injured in the attempted attack.
After the attempted attack they proceeded to Mdantsane where they first robbed Petros Ndoda Matakane of a Honda Ballade vehicle at NU6. Ncamazana and Luvuyo had found him in the company of two women. They threatened to shoot him by point him with firearms. They took the vehicle away. Two days later they went to attack the personnel of Da Gama Textiles. When they came there the bus which was conveying the white personnel was already entering the premises of the factory. (According to a statement which was made to the police, Zandisile Victor Klaas was driving the bus.) Kid alighted, TNT followed. They were both armed with automatic rifles. The two fired at the bus. The security personnel of Da Gama who were escorting the bus returned fire. One of the bullets hit the door of the Applicants' vehicle. In the volley of bullets and the ensuring exchange of gunfire TNT and Kid were shot. They later died. (Luvuyo has also since died). But during the course of the gunfire Mbambo was still inside the vehicle. Ncamazana was taking cover outside the vehicle on the driver's side. Mbambo says he was shot in the knee but managed to escape. He ran across the adjacent railway line and entered a house where he asked for clothes to disguise himself. It is not entirely clear who shot Constable Williams but he was fatally injured in the exchange of gunfire when he and other Crime Reaction Unit members arrived at the scene. At that stage TNT, Kid and Luvuyo, although they were injured, were still shooting. According to Captain Steven Trevor Hussain TNT and Kid shot at them from the bushy area opposite Da Gama and killed Williams instantly. He says after firing at the Police they shot themselves. There was no firing from the Police because when he inspected the firearms of all the members of the Reaction Unit later, there was no evidence that they had fired. It was rather a surprise attack by the two who were hiding in the bushes. Ncamazana and surviving members of his unit fled and could not be apprehended despite the helicopter which was hovering in the vicinity of the attack.
The Applicants and Tona were later arrested. The Applicants were the only persons who were charged and convicted in the Bisho High Court for their participation in the Bahai Faith Centre attack. They were each convicted and sentenced to 16 years imprisonment for all acts which occurred before the Bahai incident. The Applicants say they never told the truth in court because they did not want to receive heavy sentences. They say in particular they tried to save ones and never mentioned that they had acted on instructions from him. They say it was the policy of APLA that cadres should not reveal the involvement of their fellow comrades in the commission of crimes with which they were being charged. They had to take responsibility for their actions and face the consequences. Mbambo refers to the fact that both TNT and Kid killed themselves because they did not want to surrender themselves and be subjected to questioning and torture, the result of which would be to expose their comrades. They say that after they were arrested they were told by Jones' attorneys, Mr Ben Ntonga and Mr Lungelo Mbandazayo, that they should not mention names of APLA leaders. They were to say that they had received orders from dead people like the late Sabelo Pama. The allegation is being denied by Jones, Ntonga and Mbandazayo. We do not think it is necessary to dwell on the matter which, in our view, is not absolutely relevant for the purpose of deciding the merits of the applications.
Jones testified and denied having instructed the Applicants, or any person for that matter, to launch attacks as has been testified to by the Applicants. He says that he was one of the Eastern Cape commanders during the years APLA was involved in the armed struggle which was suspended in January 1994. He says when the armed struggle was suspended he gave orders that all APLA soldiers cease their operations and return home. He avers that he, as "high commander", never issued orders directly to foot soldiers. These he conveyed to his subordinates, namely regional commanders who then passed them to foot soldiers and he has never been a direct commander to the Applicants. He vehemently denies that he had any knowledge of the existence of the Bahai Faith Centre and says the only time he knew of its existence was when Wholly, a former regional commander of APLA, came to see him with Ncamazana to report what had taken place at the centre. He says he reminded them that the armed struggle had been terminated and reiterated that all soldiers should go home. He accordingly turned them away. He adds that at that time he, as a member of the PAC, was already preparing for the general elections of April 1994. The PAC was going to take part in the forthcoming elections. He further testified that before the armed struggle was suspended by the PAC he was involved in quite a number of operations, but he does not specify. There is also no evidence that after the meeting with Wholly and Ncamazana he reported the Bahai Faith Centre incident to the High Command structure of APLA.
A great deal of the cross-examination revolved around whether the deceased were white members of the South African population; whether the Applicants acted on orders from the military leadership of APLA and whether they knew that the PAC had suspended the armed struggle. In regard to these issues, it is worth reciting part of the evidence comprehensively:-
"Ms Collet: (D) Did you hear anybody at the church, at the Bahai Faith Church, telling you that the people who were being shot were not white people?
Mr Ncamazane: I did not hear anybody saying such a thing. Of course if any person had said so and said such a thing I'm sure we would not have believed that because we did not go there to kill English people or Afrikaans people or Chinese. We were there to kill white people and not discriminating as to whether they are a different ethnic group within white people as long as they were viewed as supporting the government of the day.
Chairperson: Does that mean you considered Chinese people as whites who supported the government?
Mr Ncamazane: I, as a soldier at the time, was to take the instructions given, not to determine the target as to what group within whites.
Ms Collet: As far as you were concerned, were whites people who were fair in complexion?
Mr Ncamazane: Yes, that is so."
The evidence of Mbambo was to the same effect, that is that they had no choice or discretion to exercise but to shoot and kill the deceased. According to the Court judgement, Dr Domini John who conducted the post mortem on the bodies of the deceased reported that the deceased appeared white in complexion.
The Applicants say that before the operation they had not received an official communication from APLA leadership informing them that the armed struggle had been suspended. Mbambo says it was only after the attack on the Faith Centre, that Jones told them that the armed struggle had been suspended. To a certain extent this evidence of a report after the attack is corroborated by Jones, albeit disclaiming the order. At that stage the Applicants were awaiting trial prisoners at Wellington Prison and Jones had come to see them. Mbambo says he told them that there was still a chance to be released but they should not mention his name and other APLA members' names who were still alive.
Both Applicants say that before the Faith Centre attack they became aware from newspaper and radio reports of the suspension of armed struggle by the PAC. This they did not believe as they regarded these sources as instruments of propaganda for the government of the day. Mbambo says he asked on Skalo, an APLA operative, who confirmed that there were such rumours but cautioned that they had to follow orders from their senior commanders and APLA on the matter. In that conversation Skalo also said the PAC leadership could carry on with their policies and this was not going to affect them as soldiers. That was the end of the matter and later when he was told by TNT to go to the church with them, no mention was made of the cessation of hostilities. Mbambo was questioned at length and the following occurs in his evidence:
"Chairperson: So why didn't you ask your commander, before you went and killed people, precisely what the position was about the cessation of violence?
Mr Mbambo: As I've said, Sir, from the beginning in the army and the democracy there is not the same as in the PAC, you didn't ask everything that you'd like to know. Yours, as a soldier, as a lower person, is to execute the orders given immediately.
The information contained in the court records reveals that at the trial the State intended to call Ngxabane to testify on behalf of the prosecution. Through his lawyers Ngxabane said he and other APLA high command members had applied for amnesty, which matters were still pending before the Amnesty Committee. In an obvious bid to dissuade to State from calling him to testify he said he would be prejudiced by having to testify before the trial court and further, that in any event his evidence would not assist the prosecution. The defence called Letlapa Mphahlele, an APLA leader and its former Director of Operations and member of High Command. It is not necessary to deal with the essence of Letlapa's evidence. The Committee is in possession of what appears to be a full transcript of his testimony. It is quite clear from the tone of his evidence that Letlapa was doing his best to save the accused from conviction or at least to secure the sympathy of the court for them. Furthermore, although he and Jones occupied the equal ranks in the hierarchy of APLA leadership, their testimonies cannot be reconciled. We make this comment mindful of the fact that the two witnesses appeared and testified before different tribunals. In the normal course of events considering and contrasting their evidence would not be without limits. It is improbable that Jones would not have known of the problem to which Letlapa testified, namely that after the suspension of armed activities, APLA leadership could not easily reach all its operatives on the ground. It does not appear from ones evidence that there was ever such a problem. According to him the transition from the armed phase of the struggle went without such a major difficulty to filter the message down to foot soldiers. We also wish to put on record that all diligent efforts to secure the appearance of Letlapa before the Committee have been in vain. He was consistently uncooperative to the Committee.
Under cross-examination it was suggested, or at least implied, that the Applicants were part of a renegade force within APLA which refused to lay down arms in compliance with the political order of the PAC leadership of which APLA was an extension. There is no evidence to enable the Committee to come to such a conclusion or otherwise. In any event, it is quite clear that during the commission of the offences referred to herein, the Applicants always regarded themselves as members of APLA.
We now have to make a finding on the evidence. After carefully considering the matter we have come to the conclusion that the Applicants have complied with the formal requirements of the Act. We accept that at the time of the occurrence of the above incidents they subjectively believed that they were acting on behalf of APLA. This belief on their part is accentuated by the fact that after the attack at the Bahai Faith Centre they went to give a report to ones. ones does not deny this fact and it is our view that they must have bona fide believed that they had orders from him, wither express or implied. There is no evidence, and it has also not been suggested, that when the Applicants carried out the different operations they acted for personal gain, ill-will or spite against their victims.
In the result, amnesty is GRANTED to the Applicants to the extent of their involvement in the acts, omissions or offences set out in paragraphs 1 to 20, with the exception of paragraph 6 where the Applicants, by their own admission, had no order to carry out that particular attack.
The Committee is of the opinion that the persons who were injured and the relatives and dependants of the deceased persons are victims and they are referred to the Reparation and Rehabilitation Committee in terms of Section 22 of the Act for its consideration that the persons who were personally affected in these incidents and the dependants of the Deceased be declared victims in terms of the Act.
DATED AT CAPE TOWN THIS DAY OF 2001.
JUDGE A WILSON
ADV L GCABASHE
ADV. N SANDI
MR I LAX
??
/...
2
/...
23
24
