DECISION
This application is related to that of Joseph Harold Nkuna (no 0812/96) and also to the one by Conrad Nkuna (no 0826/96) in that all three are mainly in respect of one and the same incident, namely the attack on the house of one Johannes Mandla Shabangu.
The applicant was arraigned and convicted on the following charges:
Count 1: attempt to murder to Johannes Mandla Shabangu;
Count 2: attempt to murder Noelane Lingwate;
Count 3: attempt to murder Peer Mnisi;
Count 4: attempt to murder Thadi Mokoena;
Count 5: attempt to murder Lazarus Chiwayo;
Count 6: attempt to murder Phindive Shlangu.
Count 7: the illegal possession of two F1 hand grenades of Russian origin;
Count 8: the illegal possession of one AK47 gun with two magazines;
Count 9: the illegal possession of 148 x 7.62mm rounds of ammunition for a machine gun;
The above offences were committed on 10th to 11th November 1992 at or near Kayamazane.
The applicant was convicted on all nine (9) counts and was effectively sentenced to nine (9) years' imprisonment.
According to the applicant, he received instructions from Joseph Nkuna that Johannes Mandla Shabangu, a fellow member of the African National congress (ANC), be eliminated as he was a police agent. He testified:
"We had absolute trust in Joe (Joseph Nkuna) whom we knew and trusted as our commander in the MK. As our Commander and most trusted person we believed him and more so, we did not have contact with any other comrades outside as we were lying low and our only contact was Mr Nkuna."
On the orders of Joseph Nkuna the applicant, together with Conrad Nkuna and a certain Solly Moroape, went to attack the house of Mr Shabangu. They were armed with hand grenades and an AK47. A hand grenade was thrown into the room in which Mr Shabangu was sleeping. Except for Shabangu's girlfriend who received minor injuries, nobody was hurt in the incident.
The applicant was himself a staunch member of the African National Congress (ANC) and was in fact an Umkhonto weSizwe (MK) cadre. Joseph Nkuna was senior to him and as he says, was his Commander. As a cadre the applicant would have known that enemy agents were liable to be dealt with severely and he would not have questioned orders from his Commander.
As already indicated above, Joseph Nkuna has himself also applied for amnesty and has indeed testified before us. There are differences between the testimony of Joseph Nkuna and the applicant. Firstly they differ on whether Joseph Nkuna was also physically present during the attack. Secondly they also differ as to whether or not the applicant and/or Moroape conveyed a message to Joseph Nkuna that Mr Shabangu should be eliminated. As far as the first aspect is concerned, Joseph Nkuna and his brother, Conrad, maintain that Joseph Nkuna was not there, while the applicant says he was, only later to say albeit some distance away. On the second aspect, the applicant is obviously not able to testify on any possible discussion between Moroape, who has since been killed, and Joseph Nkuna. Both aspects are dealt with in full in our decision in Joseph Nkuna's matter. Suffice it to say that as far as the first conflict is concerned, the fact is that there was common purpose to kill Mr Shabangu and it is immaterial to the applicant's case whether Joseph Nkuna was physically present or not during the attack. The same applies to the second dispute; the basis of applicant's application is that he acted on instructions from his Regional Commander and he had no reason to doubt the veracity of the orders.
The illegal possession of the firearms, ammunition and hand grenades referred to above also constitutes an act associated with a political objective; they were possessed in the course of the struggle.
For the reasons set out in our decision in Joseph Nkuna's matter, it is our view that the offences were associated with a political objective. In the result
AMNESTY IS GRANTED: to the applicant in respect of all the offences set out on page 1 of this judgment.
SIGNED ON THE 5th DAY OF NOVEMBER 1997.
NGOEPE, J
ADV C. DE JAGER SC
MS S. KHAMPEPE
