DECISION
The Applicant applied for amnesty in respect of the following offences:
1. The murder of Christina Masupa (also known as Manta) on 2 July 1987 at Daveyton.
2. The murder of Eunice Shabangu on the same date.
3. The murder of Catherine Nkosi on the same occasion.
4. The murder of Melzinah Mbata on the same date and at the same place.
Offences 5 to 8 relate to the attempted murders of Richard Mbatha, Godfrey Masupa, Trevor Cindi and Elinale Masupa.
The ninth offence is in respect of arson relating to the house of Elinale Masupa.
It is common cause that the Applicant and five youths were charged and convicted in respect of the above offences. The Applicant, who was the leader of the group, was sentenced to death but the sentence was commuted to 18 years imprisonment. The Applicant testified that he, at the age of 15 years, was the chairman of the people's court and that he in that capacity sentenced people to whipping and sjambokking. He stated that he inter alia sentenced Hendrik Masupa to sjambokking. On being challenged thereon he stated that he might have made a mistake. He testified that he was chosen as chairperson by his colleagues who varied in age from 9/10 years to 30 years. He was also the chairman of the liberated zone called Russia.
His membership of the ANC Youth and of the Daveyton Student Congress was disputed. A letter signed by the secretary of the ANC Youth League dated 11 June 1996 was handed in as proof of his membership. Later an affidavit of Abrey Nxumalo who was the deputy chairperson of Cosas during 1983/1984 stated that the Applicant was a member of that organisation, but that they had a problem with him because he was ill-disciplined and was involved in activities which were not known to or approved by the organisation. He further stated that Cosas distanced themselves from the incident at Mocke Street 12743 (the house burnt down) and that they never ordered such a mission. Manta Masupa, one of the deceased was also a co-member of Cosas.
From the evidence it was clear that the Applicant and his co-accused in the murder trial visited a shopping centre where Hendrik Masupa was in charge. Upon entering the shop he saw a security policeman leaving the place and that infuriated him. One of his comrades bought some food and offered a R10-note in payment. They thereafter accused Hendrik Masupa of being involved with the security police. The latter, according the Applicant, then boasted that he would see to their imprisonment. That caused him to decide that something drastically should be done and they decided to teach him a public lesson. They decided to buy petrol and burn down the place "where he laid his head", meaning his house.
They went to his house, gained entrance after knocking and poured petrol on the floor. A match was lit by one of the Applicant's comrades causing the house to explode in fire. At that time the Applicant was already aware of the presence of at least three women, one being Manta Masupa (Christine Masepa) whom he knew as a Cosas member. He also testified that he informed the inhabitants of their intention to burn the house while petrol was poured on the floor before the match was lit and requested them to leave the house. The house exploded in flames before anybody could leave and he himself was caught in the flames and sustained burns. He managed to escape.
The application was opposed by the victims who survived the attack. Godfrey Masupa testified that he was living with his parents at 12743 Daveyton.
The shopping centre referred to in evidence by the Applicant belonged to his grandfather. He had no interest in the business and was working at a battery company in Benoni.
On the night of 2 July 1987 he was watching television together with his mother Elinate, his sister Christina (also known as Manta), his sister Melzinah who was visiting from Durban, another sister Eunice also from Durban, Trevor Cindi and Catherine Nkosi. Two small children, one a year old and the other aged a few months, were also in the house.
The lights were switched off and they heard a knock at the kitchen door. Elilane their mother, asked: "Who is there?" and someone answered: "The Comrades" and simultaneously entered through the unlocked kitchen door. Elilane was in the kitchen and they called on Manta to come to the kitchen. She recognised Vusi (Absalon Gubela) and asked what he wanted. At that time a petrol smell already filled the house and the fire exploded.
Godfrey Masupa testified that he had been watching television when the fire broke out. He heard children screaming and found Melzinah and Eunice in the bedroom. The front door was locked and the kitchen door was shut, so he attempted to break the burglarproofing to get the women and children out. At last they managed to open the kitchen door and they got out. The two children were badly burnt. The injured were taken to hospital. All the neighbours came to assist them. He was hospitalised for three months and was so badly burnt that the subsequently lost an eye. The four women referred to in the charge sheet died.
He (Godfrey) denied that there was an attempt by the Applicant and his co-accused to persuade them to leave the house. He knew the Applicant, they both grew up in the same area, and he recognised him when the lights were switched on for a few seconds. He further testified that the Applicant stayed with his mother and they in fact became their neighbours during 1985. Hendrik Masupa was his brother but did not stay with them. He slept at the shopping complex for a number of years preceding this incident, guarding the shops which belonged to their grandfather.
He further stated that the Applicant belonged to a gang who was robbing people, stealing cars and taking food from delivery vans. He himself was not a comrade involved in politics. His sister, Christina known as Manta, was involved in politics and she was an activist serving under the leadership of Aubrey. He testified that the comrades and the ANC-supporters in the area, did not approve of what the Applicant and his colleagues die. They visited the victims in hospital and assisted in arresting the Applicant and the other accused after they had organised a search for them.
Elinate Masupa stated that she was the owner of the house 12743, Mocke Street where the attack was carried out. She was with Eunice and Melzina in the kitchen when the lights went out and somebody knocked at the door. She enquired and they answered that they were comrades and called Manta's name. Manta came and they switched the lights on for a few moments before switching it off again. The next moment the house burst into flames. The Applicant and his colleague ran out, pulling the door towards them to close it, while she struggled to keep it open. She managed to get out but saw Manta struggling on the floor, burning. She rushed back, got hold of her and pulled her out. She was screaming and in flames. She again went back and into the bedroom to try and rescue the children. Mr Mbatha managed to open a window and rescued the two small ones as well as his wife and then escaped himself. Her daughters Christina (Manta), Eunice and Melzina and Catherine Nkosi, however, did not survive. She strongly denied that they were offered an opportunity to get out of the house before the fire started.
She stated that Hendrik Masupa was not staying at the house for at least six years preceding the incident as he was staying with his grandfather at the shop and that the Applicant and some of his co-perpetrators who stayed in the immediate vicinity knew it.
Hendrik Masupa testified that he slept at his grandfather's shop for a number of years before this incident. One of the Applicant's co-accused on a number of occasions visited him and slept with him. He was well aware that Hendrik did not stay at the house in Mocke Street.
He (Hendrik Masupa) testified that the Applicant and his five friends visited the shop during the day and started to argue with the customers. One started sjambokking a customer and this caused chaos. The shop assistant who initially served them, still had the money offered in her hands. He took it and told them that they were not going to serve them and tried to persuade them to leave. He and an assistant, David, managed to get them to the door and they closed the burglar doors, preventing them from re-entering. They then started to shout insults and one of them threatened to burn the whole building accusing Hendrik of thinking that he was better than others. This did not worry him too much because they had guards at the shop after closing hours.
Hendrik further testified that he was at the Mocke Street house, the day after the disaster, helping to clean up. More than 100 comrades turned up offering their condolences and stating that they would go and find the perpetrators. They left and after a few hours returned with Elias Ratone who afterwards was accused no 6 at the trial. They wanted to burn him but were persuaded to hand him to the police. He denied that the Applicant was a member of the recognised comrades. He stated that the Applicant was a member of a gang of common tsotsis. He denied that he was against the comrades, stating that he was indeed one of the them. He denied that he was ever brought before a people's court or sjambokked. He stated that he supported the consumer boycott and joined in taking food from delivery vans.
After hearing the evidence referred to above, a postponement was requested on behalf of the Applicant. his legal representative Mr Currin, told the Committee that they anticipated to call further witnesses. Nothing has happened since. Enquiries were made on behalf of the Committee and it transpired that the Applicant was released from gaol. Mr Currin was no longer acting for or on the Applicant's behalf. After great trouble the Applicant was traced and he informed the Committee that he wishes to persist in his application. The Committee is called upon to make a decision on all the evidence placed before it.
The trial record was submitted at the hearing. At the trial the accused maintained that a quarrel arose at the shop because Hendrik Masupa did not give them the correct change, and the reason for the attack was to teach him a lesson. The Committee is aware that accused persons often did not give true evidence during those days (and even today) because they were of opinion that, doing so would aggravate their position. Not much reliance is therefore placed on the evidence given at the trial.
The Applicant also applied for an indemnity under The Indemnity Act of 1991 and 1992.
He filed two applications. The first of which was dated 2 May 1991. He was assisted in completing the application by Messrs Ismail Ayob and Partners and in a submission annexed to the application it was stated:
"The offence in question, related to the victimization of the six boys whilst they were in the throes of having supper one night. They were interfered with by members of the community who were branded as Police Informers. The six boys, that is five other young boys and as well as Phineas, were pursued by the said Police Informers. They eventually took refuge in a certain house, in Mokie Street, Daveyton. An argument and physical fighting occurred at this house whereupon, some one, other than Phineas, set the house alight and four people were burn to death. Client and the five other boys were held responsible for:- the burning of the house, the people who died in it as well as four other persons who sustained injuries in the fire. Phineas sustained very serious injuries as the result of the fire."
The application was refused on the grounds that the act was not associated with a political objective.
The Applicant thereafter filed the second application on 3 June 1993. In a lengthy annexure he stated that Hendrik Masupa was often seen in the company of a security policeman, Stuffi, who harassed the youth in Daveyton. He stated inter alia: "On the night of this act we were attacked by his coalition forces and in their estimation we were already dead as they went on a rampage assaulting us with intent to kill but we fought off and ultimately their attack was counter productive as we reacted and moved to destroy their strategic base situated inside Russia."
Later on he stated:
"Immediately when we arrived we addressed ourselves as comrades ... (then follows a line that is not readable)... It was clear that they were also involved in this campaign and they also left us with no option but to proceed with action."
This application was considered and refused. It was later reviewed by the Scrutiny Committee - under chairmanship of Mr Currin - who recommended that he be released. The only reason advanced was because some of his co-accused had been released in terms of the Record of Undertaking. The Applicant's application was however, again turned down. Parole was later granted.
On all evidence before us, the Committee is not satisfied that the Applicant made a full and truthful disclosure of all the relevant facts. He made contradictory statements and later even withdrew his evidence that he had punished Hendrik Masupa as chairman of the people's court.
Another factor weighing heavily against the Applicant is the question of proportionality. It may even be that he had reason to act against Hendrik Masupa, but the killing of the women, the brutal burning of the children and the rest of the family is so disproportionate to the objective of teaching Hendrik Masupa a lesson that amnesty cannot be granted.
Amnesty is therefore REFUSED.
The Committee does recommend that the victims be considered by the R and R for recommendation under the Act.
The Committee also wishes to express its admiration for the behaviour of Mrs Elinate Masupa. To run back into the fire to save her daughter and the small children speaks of love and bravery that deserves recognition.
DATED AT CAPE TOWN ON 31ST MAY 2001
WILSON J
KHAMPEPE J
DE JAGER A-J
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