The three applicants were members of the African National Congress's Military Wing, Umkonto We Sizwe (MK), who were active in the Transkei during 1990. They were all high ranking officers of the above mentioned organisation. Aga Tiya, who was also involved in this operation, described below, is deceased.

The application for amnesty concerned the murder of Sipho Phungulwa and the attempted murder of Luthando Dyasophu at Ngangelizwe Lacation in Umtata in June 1990.

Matshaya submitted a supplementary affidavit setting out all the facts and circumstances surrounding the offenses for which amnesty is applied for, and gave oral evidence, elaborating on and confirming the facts set out in his application, and supplementary affidavit. His co-applicants confirmed and aligned themselves with this evidence.

It is common cause that the African National congress, through its military wing was waging a war against the South African regime. The applicants, Phungulwas and Dyasophu were in exile where they trained. Phungulwa and Dyasophu defected from the ANC in 1990 and became what is known as 'askaris'. The applicants understood 'askaris' to be defectors who joined the South African Security Forces and acted inter alia, as informers. In exile, these two defectors had been involved in a mutiny in Angola. When they returned to South Africa in 1990, they held a press conference where they discredited the ANC and leadership in exile. The applicants' understanding of the status of such defectors was that they were legitimate targets because they could readily identify MK operative in the country, they were regarded as traitors who had crossed over to join the enemy, and were seen as people who sought to divide the ANC, distorted events that occurred in exile, which reports could lead to infighting in the ANC, thus weakening the effectiveness of the organization in its fight against the security forces of the apartheid regime.

As a result the applicants took a decision to eliminate these two defectors, who, they had ben informed, had been deployed in the Transkei region. Further, a meeting was held with a local ANC political leadership to warm them of the presence of these defectors and to put them on their guard. Surveillance was carried out to try to establish the movements and local contacts of the two defectors.

The applicants later followed the two defectors who had boarded a taxi to Ngangelizwe location, and as the two alighted, a shoot-out ensued. Phungulwa was killed and Dyasophu escaped.

The applicants explained that there was nothing personal in the attack on these two defectors. they were acting for the country, as members of the MK stationed in Transkei. They gained nothing personally for their actions.

Dyasophu gave evidence, which largely confirmed what the applicants had stated. Most importantly, he confirmed that once the leadership had labelled one an informer, that meant that person must be killed. The press conference alluded to by the applicants, he stated, was held to clear his point. It was intended to indicate that they were not informers.

We accept the versions of the applicants especially as it is substantially supported by Dyasophu. Clearly the offenses for which amnesty is applied for were committed for political reasons in the interest of an anti-apartheid stance. We are satisfied that they had made full disclosure in explaining how and why these offenses were committed.

In our view the requirements of the Act have been satisfied.

It is therefore ordered that amnesty is granted to the applicants for the offenses for which they so apply.

We are of the opinion that the wife of the late Sipho Phungulwa and Luthando Dyasophu are victims in relation to the acts forming the basis of the amnesty granted to the applicants. the matter in accordingly referred to the Reparation and Rehabilitation committee for its consideration in terms of Section 26 of Act 34 of 1995.

Committee members : Judge Pillay

Adv Potgieter

Adv Gcabashe

Date Heard : 20 April 1998

Venue : Norwood Civic Centre

UMTATA

Evidence Leader : Mr Zuko Mapoma

Counsel for Applicants : Mr M Notununu