AC/2001/270

TRUTH AND RECONCILIATION COMMISSION

AMNESTY COMMITTEE

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

MAPHUTHI JOSEPH CHIDI APPLICANT

(AM0708/96)

DECISION

The Applicant is applying for amnesty in respect of the murder of Gideon Moeng on 7 May 1986 at Tembisa.

The Applicant testified that he was a member of the UDF and served on the Street Committee. During the relevant time it was the policy of the UDF to make townships ungovernable in order to bring the then government to a fall. In the process persons serving on Municipal Councils were seen as collaborators with the government and forced to resign. If they failed to dissociate themselves from the system of Municipal Government, they could be killed.

The Deceased, Gideon Moeng, was a councillor serving on the Tembisa Municipal Council. About two weeks before his death, at a community meeting, the position of the Deceased was discussed and it was decided that he should be eliminated. The Applicant testified that he understood that to mean that the Deceased should be banned from the community and be forced to leave the township. This decision was taken because the municipal council at the time resolved to enforce rent payments while the UDF, as part of the strategy to bring the government to a fall, advocated a rent boycott.

On 7 May 1996 a group of youths gathered near the Applicant's house and decided to kill the deceased. The Applicant in a statement signed on the morning of his amnesty hearing stated:

"I was amongst the people who chased the deceased, Mr Moeng, from his house and poured petrol on him and set him alight although I could not get a chance to assault and burn him personally due to many people in front of me. However, I had the common purpose of killing the deceased because he was a councillor."

In his evidence before the Committee, as already indicated, he stated that he understood the decision of the community to mean that the deceased should be chased out of the community. He didn't participate in the chasing of the deceased. He, however, did follow the group who assembled near his house and would have participated in the assault and burning of the deceased if he had the opportunity. The question therefore arises whether the Applicant indeed had the common purpose to murder. As stated in State vs Mgedezi and others 1989 (1) SA687 (AD) in the absence of proof of a prior agreement to kill the victim, a person who did not contribute casually to the killing or wounding of the victim can only be liable if certain prerequisites are satisfied.

1. He must have been present at the scene where the violence was committed.

2. He must have been aware of the assault.

3. He must have intended to make common cause with those actually perpetrating the assault.

4. He must have manifested his sharing of a common purpose with the perpetrators by himself performing some act of association with the conduct of the killers.

5. He must have had the requisite mens rea. He must have intended the deceased to be killed or he must have foreseen the possibility of him being killed and performed his own act of association with recklessness as to whether or not death was to ensue.

According to his evidence, the Applicant didn't understand the resolution taken at the community meeting to mean that the deceased should be killed. He did not participate in "a prior agreement to kill". He was, however, present at the scene of the killing and at least at this very late stage intended to make common cause with the killers. He had the requisite mens rea, he intended the deceased to be killed. The question to be answered is whether he manifested his sharing of this common purpose by himself performing some act of association with the killers.

It must be born in mind that the Committee is not conducting a trial. If there is an onus on the Applicant, the onus would vastly differ from the onus to prove beyond reasonable doubt as required in a criminal trial. The requirement that the Committee should be satisfied is also different from the onus in a civil matter of proof on a balance of probabilities. It is not even stated in the act that the Applicant should satisfy the Committee. The act is silent on who (if anyone) is to satisfy the Committee and what standard of satisfaction is required.

See Johannesburg Local Road Transportation Board and Others vs David Mortan Transport (Pty) Ltd. 1976 (1) SA 887 at 903 H.

"In civil proceedings that expression" (onus of proof) "has a recognized connotation, and the onus is fixed by the pleadings and the latter govern the evidence which is led. These considerations do not apply in proceedings before a local board or commission, which are not bound by rules of judicial procedure."

See also Die Afrikaanse Pers Bpk vs Neser 1948 (2) SA 295 C at 297.

"Satisfy does not mean prove. I take "satisfy" to mean therefore that the court must feel that there is a fair probability that ..."

The question remains whether the fact that the Applicant joined the group, knowing that they are on their way to kill the Deceased and that he testified that he would have participated in the killing, if he had the chance, is a manifestation of his sharing of the common purpose to kill, for the purposes of deciding whether the Applicant falls within the ambit of Section 20(2) of Act 34 of 1995 as a person who would qualify for amnesty provided that the other requirements of the Act are met.

This could only be the case if the Committee concludes that on the facts elicited above the Applicant had committed an offence or delict. Did the Applicant's "participation" go any further than that of a person following a crowd to see whether they would carry out the threat they've made and which the Applicant by co-incident overheard? The Committee is not satisfied that on the facts put before it that it can be said that the Applicant is guilty of murder or that he committed any offence.

At the criminal trial the evidence vastly differed from the evidence now presented. The evidence then was that the Applicant was the person who actually pulled the Deceased out of his house. It should further be stated that before the hearing started the Applicant's legal representative handed up an affidavit attested to by the Applicant that morning in which it was stated that he was part of the process leading to the killing and not merely an interested bystander.

This was withdrawn during his oral evidence stating that it was a misunderstanding between him and his representative. The Committee is not satisfied that a full disclosure has been made of all relevant facts pertaining to the Applicant's participation and role in the murder.

In the result amnesty is REFUSED in respect of:

1. The murder of Gideon Moeng on 7 May 1986 at Tembisa by pouring petrol on him and setting his body on fire while still alive.

2. Any other offence or delict directly linked to the offence mentioned and flowing from the evidence given by the Applicant before the Committee.

The Committee, as envisaged in Section 22(2) of Act 34 of 1995, is of opinion that Mrs Moeng, the widow of the deceased and their three children are victims in relation to the above offence and refers the matter to the Committee on Reparation and Rehabilitation for its consideration in terms of Section 26 of the Act.

DATED AT CAPE TOWN THIS DAY OF 2001.

ACTING JUDGE N J MOTATA

ACTING JUDGE C DE JAGER

MR W C MALAN

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