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Decisions

Type AMNESTY DECISIONS

Starting Date 14 September 1999

Location Cape Town

Names EDWIN LUMKO

Case Number AC/99/0265

Matter AM7967/97

Decision REFUSED

DECISION

The applicant applies for amnesty in terms of Section of the Promotion of National Unity and Reconciliation Act("the Act") for the following offences which he committed on 26 August 1992:-

1. The murder of Welile Oliphant at Tendergate Administration Area in the region formerly known as Ciskei; and

2. Arson, in that at the said place and time, before he shot and killed the deceased with a firearm, he poured petrol inside his house and thereby set it alight.

The applicant was convicted and sentenced to twelve (12) years imprisonment for the said offences, (9) of which was suspended for five (5) years. On the 21 September 1993 the applicant was released from Middledrift Prison where he was being held. It is not entirely clear how it came about that the applicant served only twenty-eight (28) days of the sentence and for our own purposes we intend not to deal with the matter, but suffice it to say that at the time of the occurrence of the incident and events referred to herein the applicant was a member of the African Democratic Movement ("ADM") and its supporters. Consequently, the relationship between the two organisations' leaders, and their supporters was one of violent conflict an violence. There were attacks and counter- attacks from both sides. It is in that context that the incident herein occurred. The deceased was resident at Tendergate and played a prominent role in the affairs of the ANC, of which he was also a leader there.

According to the applicant, on the day in question, and at night, he was alone at home when the deceased came and warned him that if he continued supporting the ADM and the headman system, his home would be attacked by ANC supporters that evening, and he (the applicant) would die like Xabendlini. the deceased said he was advising him to resign from the said structures, to save his life. Before making the said utterances the deceased had said to the applicant he had not come to fight with him but to come and give him advice. A few days before that day Xabendlini who supported the ADM and the headman had been killed allegedly by ANC supporters. the applicant himself says the encounter between him and the deceased was not a confrontation. Neither was the applicant threatening the applicant, so mush so that at the end of their conversation the applicant asked the deceased where he was going to proceed to from his (the applicant's) place. the deceased said he was returning to his house, obviously going to sleep. the applicant says after the deceased had left he decided to go and attack him at his place with petrol and a firearm. He says he took a five (5) litre container of petrol from and electric generator and proceeded to the home of the deceased. When he came there he noticed that it was dark. He presumed that he must have been inside. He knew that his wife was not there as she worked in Queenstown. He broke the windows, poured petrol through the open gaps and set the place alight. He was expecting the deceased to come out, and then shoot him. He went behind the house and waited for him to do sa, and when he emerged from that structure running, he shot him once. the deceased fell down to the ground and the applicant, assuming that he had killed him, ran away. He went back to the house where he slept in a kraal, fearing that ANC supporters would come and burn his house. He says that is where he had always slept to evade attack by the AND supporters. He says when he attacked the deceased he did so because he thought the deceased and other ANC supporters were going to come and kill him that evening. He said at that stage ADM supporters were being attacked and their houses were being torched. Although he was a high profile ADM supporter he had never been attacked, but he believed that he was a potential target. He also believed that at some stage or the other his house would be burnt out by the ANC supporters in the raging conflict. Under cross-examination he said he took what the deceased had said as a threat, and he decided to act first, before he could be attacked. He thought the deceased had gone to fetch other ANC supporters to attack him. He believed that the deceased was involved in the various acts of arson and attacks on ADM supporters. As far as he was concerned he was also involved in the murder of Xabendlini. The applicant was questioned at length as to the basis of his belief about the involvement of the deceased in violence against ADM supporters and was unable to furnish a credible explanation for his perceptions. The deceased had never been charged and convicted for such acts. In respect of one incident of arson wherefor the deceased was arrested, the police released him on the same day and said there was no evidence to charge him.

The applicant has never seen the deceased committing a crime. He has never had a quarrel with him. He further admits that the deceased posed no threat to him when he set his house alight and shot him when he ran out. The applicant's house was never attacked and after he killed the deceased, save for the windows which were removed whilst he was awaiting trial, being charged with murder and arson. In this regard the evidence does not suggest that the theft was committed by political opponents of the applicant. His legal representative could not convincingly take the matter any further when it was suggested to him that the theft could have been committed by ordinary thieves, with no political motive whatsoever.

The applicant says about a month before the incident he accompanied Methusi to Bisho to seek protection. There they went into and office where they were both given firearms. Licences were issued for the firearms. At that stage he had never used a firearm before. On his return to Tendergate he tested it by aiming one shot at a tree. When the shot hit the tree he did not again fire. He was then satisfied that he could shoot and it was only on the day of the incident that he used the firearm again, the second time ever in his life. It had been suggested by the opposition that the applicant is not the person who shot the deceased, which truth the applicant is alleged to have revealed to a once co-prisoner, Mzuvukile Vellem at Middledrift Prison. The applicant denies it. It is not necessary to decide the issue. Nothing turns on it, given the reasons for our decision in this matter. There can be no doubt that the applicant had no reasonable apprehension that he was in danger of being killed by the deceased when he shot him. He clearly was not warding off an imminent attack. He also had no order from his organisation to commit the act and, in the circumstances, the attack was entirely unprovoked. All in all, whilst it is accepted that in general there was a violent conflict between the ANC and UDM supporters, the killing of the deceased was totally unjustified.

Amnesty is therefore REFUSED. The dependants of the deceased are declared victims in terms of the Act.

Signed at Cape Town on this 14 day of September 1999

 

JUDGE D. POTGIETER

ADV. N. SANDI

DR. W. TSOTSI

 
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