AC/2000/009

APPLICATION IN TERMS OF SECTION 18 OF THE PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT, NO.34 OF 1995 ______________________________________________________

______________________________________________________The applicant is currently serving a long term of years imprisonment for the following offences:-

He is now seeking amnesty in respect of the said offences. The matter arises out of an incident which occurred on the 22 March 1994 at Ngonyameni area in the region of Kwa-Zulu Natal. On that day the applicant shot and killed the two deceased and one Vusumzi Zwelonke Mkhize, an ANC supporter, was injured. The applicant claims that he was a supporter of the ANC at the time of the commission of the said offences and that he acted on its behalf. He further testified that both Mbokazi and Shandu were IFP supporters who instigated attacks on ANC followers.

The applicant testified that at the time of the occurrence of the incident there was a widespread conflict between IFP and ANC supporters and he was a member of a Self-Defence Unit (SDU) and a supporter of MK, the military wing of the ANC. As an SDU member it was his task to defend members of the predominantly ANC community.

Right from the outset it must be pointed out that Mbokazi was a local "Induna" and Shandu a peace monitor who had come to address a meeting. At the time there was taxi violence in the area and it was the purpose of the meeting to find a solution to the problem. The applicant says on the day before the scheduled meeting he was told by "Saddam" and Mashelela Khwela that there was going to be a meeting. Mbokazi, Shandu and one local Chief Cele were going to attend. His instruction was to defend ANC supporters, if attacked. At that stage he was already aware of Shandu, although he had never seen him before, who allegedly visited the area and caused ANC supporters to be attacked. Shandu was reported to be a man who was always in the company of Mbokazi. He did not know how he looked like. Previously, he had been given a firearm by Khwela, an MK unit commander, which he was to use to defend ANC supporters. He did not know who was going to address the meeting and what the purpose of the meeting was. Very strangely, Saddam and Khwela were not going to attend the meeting and it is not clear why.

When the applicant came to the meeting it had not even commenced business and people were still in the process of arriving and gathering. he saw Mbokazi in the company of a man he had not seen before and it later transpired that the man was Shandu. Cele was not there. He assumed that the man must have been Shandu and he immediately fired two (2) shots at Mbokazi and one at Shandu. After he had commenced the shooting other ANC supporters also fired and both Mbokazi and Shandu were fatally injured. Their bodies were found lying in an open space the next day. Police investigations revealed that their pockets had been searched and some personal items were taken. The vehicle in which Shandu had travelled to attend the meeting was found abandoned and it had been torched. The applicant denies having robbed the deceased and in particular taking Shandu's wallet and a wrist watch. he says some other people were suspected of having searched and burnt the vehicle. He says he left immediately after carrying out the attack. He later apologised to Vusumzi Zwelonke Mkhize who was shot by mistake. This was because Vusumzi was not against the ANC and therefore not a political enemy.

Under cross-examination the applicant changed his reasons for killing Mbokazi and Shandu and said he had been given an order to do so by Saddam and Khwela. This sudden turn-about was to be expected as he was unable to explain why he opened fire on the deceased. No attack had taken place and the deceased had not uttered a word of threat. They were just arriving at the meeting.

In the main the application is being opposed on the grounds that the applicant had no political objective but acted as a hit-man for Khwela, a taxi man who was a rival to Silwana Msomi. Mr Panday, who appeared for the relatives of the deceased, put it to the applicant that at the time of the incident there were two (2) rival taxi groups, one being led by Msomi and the other by Khwela. He further said that that was the sole cause of violence in the area. This the applicant denied and said neither Khwela nor Saddam were part of the taxi industry. They did not even have vehicles. He reiterated that there was political violence in the area and said there was no taxi violence in the area. Because of the reasons that will be given hereunder for our decision in this matter, we do not deem it necessary to make a finding as to whether the incident occurred as the result of a taxi industry related violence between the two alleged gangs or as part of an ANC-IFP feud. But suffice to say that the applicant's credibility was very unsatisfactory in a number of respects. It is also not necessary to go into a detailed analysis of all the discrepancies in his evidence. At the end of his testimony it was clear that he was not being truthful. Even if we could give him a benefit of doubt and assume that he was an ANC operative and that he went to the meeting to carry out political orders, he exceeded the terms of his mandate by shooting Mbokazi and Shandu. No attack had taken place on ANC supporters and, on the contrary, the applicant was the one to start the violence. The attack was totally unjustified in the circumstances.

In the result the application in respect of all the offences is REFUSED.

SIGNED AT..................THIS.....DAY OF..........2000

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JUDGE S MILLER

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ADVOCATE N SANDI

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MR W MALAN