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Type AMNESTY DECISIONS
Names XOLA TEMBINKOSI YEKWANI
This is an application for amnesty in terms of the provisions of Section 19 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act"). The application relates to the death of Mziwonke "Pro" Jack, a high-profiled African National Congress ("ANC") member in the Western Cape who was shot and killed by applicant on the night of 19th June 1991 at or near Lansdowne Road, Nyanga East. The townships of Cape Town was plagued at the time by widespread violence involving conflicts in the taxi industry as well as the general political conflict at the time. Given the high political profile of the deceased, there was a belief held by many people at the time that the deceased was assassinated at the instance of his political opponents. this theme was again touched upon in the course of the amnesty hearing. The application was opposed by the next-of-kin of the deceased and various other interested parties were legally represented at the proceedings. Only the applicant and the sole passenger in the vehicle of the deceased at the time of the incident, testified at the hearing.
Although many issues were canvassed during the course of the hearing, we are of the view that the matter could be decided on a limited issue. We accordingly decline to finally decide any of the other issues that were raised in the hearing and proceed to deal with the issue which is determinant of the application.
One of the requirements of the Act is that the conduct of the applicant should constitute an act associated with a political objective as envisaged in the Act for the application to succeed. We proceed to examine this requirement. On applicant's version, he was an ANC member who had received military training under the auspices of uMkhonto weSizwe ("MK"). He was also a member of the Nyanga East Self-Defence Unit ("SDU") at the time of the incident. He had planned to launch an attack on the police on the night of the incident and had collected a few of his fellow ANC activists to assist him in this process. Applicant was armed with a R4 rifle and some of the other members of his group with various other firearms which formed part of the arsenal of arms used by the SDU. They proceeded to the vicinity of the intersection of Emms Drive and Lansdowne Road in Nyanga East sometime prior to 22h00 to await the arrival of a police van which normally transported the police past the point in question between approximately 22h00 and 22h30 which is about the time of the usual change of shift of the police. Applicant intended to attack the police vehicle when it passes the particular scene. The group took up their positions under a few trees in the vicinity of the intersection. At some point Applicant heard one of the members of his group telling them to watch out. Applicant then became aware of a vehicle that was very close to him and was approaching from behind. Applicant thought that it was the police who had come to arrest or attack them and he immediately fired a number of rounds on automatic fire at the driver of the vehicle. When applicant was satisfied that the occupants of the vehicle must have been killed, he stopped firing and the group fled from the scene. Applicant had no orders to launch the intended attack upon the police and had not raised the matter with any of his superiors prior to the incident. Subsequent to the incident he raised the matter with a Mr Langa, who was his senior and who undertook to raise the matter with the ANC. Mr Langa seemed to have neglected to do so and he is since deceased. At some point applicant was approached by the officials of the ANC who were investigating the killing but applicant denied any knowledge of the incident. he had consulted an attorney on the advice of Mr Langa but had told nobody else about the incident.
Applicant indicated that the attack upon the deceased was a mistake and that if he had known that the deceased was driving the vehicle, he would never have fired at him. Applicant indicated that he had only fired the shots because he was under the impression that he was shooting at the police.
On the evidence before us, it is clear that the applicant had no reasonable grounds for believing that the vehicle of the deceased was a police vehicle or that it was driven by the police at the time. Applicant was expecting the police to be travelling in a police van which was patently different from the ordinary sedan vehicle driven by the deceased at the time. Applicant had also taken no steps whatsoever in order to try to ascertain the identity of the occupants of the vehicle. If he had done so, it would have been manifest that the driver was accompanied by a 14 year old boy who was seated in the front on the passenger side of the vehicle.
On the undisputed evidence before us, the deceased was unarmed at the time and had no intention of attacking the applicant and his group. It appears that the driver's window of the vehicle of the deceased was turned down and that applicant would have had very little difficulty in observing that the deceased was unarmed and was posing no threat to applicant and his group at all.
In the circumstances we are satisfied that applicant was not pursuing any political objective at the time when he fired the fatal shots at the deceased. We are therefore not satisfied that applicant's conduct constitutes an act associated with a political objective as envisaged in the Act. Although, as indicated above, we do not regard it strictly necessary for the purposes of this decision to finally decide any of the numerous other issues raised in the hearing, we wish to indicate that we have no reason to disbelieve the evidence of Andile Jack, who was the passenger in the vehicle of the deceased at the time of the incident. This version raises serious doubts in regard to the question whether the applicant has made a full disclosure of all the relevant facts. We also wish to add that there is no conclusive evidence before us establishing the fact that the attack upon the deceased amounts to an assassination related to politics or some other cause.