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Decisions

Type AMNESTY DECISIONS

Names XHAWULANI THULASIZWE NGCOBO

Matter AM8026/97

Decision REFUSED

DECISION

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The applicant applies for amnesty in respect of the murders of Cebo Majola, Simiso Bhenqu, Shoti Ndulini, Bhekizani Nzuza, Mandlethu Ngcobo, Ngoma Shelembe, Sihle Mkhize, Siyanda Nqubane, Ncamisile Zimu and Sqwili Zimu.

All the murders took place at Kwa Nyavu in the Table Mountain area, Kwa-Zulu Natal. The murders of the first eight of the abovementioned victims were committed during the period 1991 and 1992. The applicant was never charged in respect of any of these murders. Ncamasile Zimu and Sqwili Zimu were murdered during 1996. The applicant was convicted in respect of these two murders and was sentenced to undergo an effective term of imprisonment of 25 years. The application in respect of the murders of Ncamasile Zimu and Sqwili Zimu cannot be considered by this Committee as they were committed after the final cut-off date of 10 May 1994.

The applicant states that during all relevant times he was a member of the Inkatha Freedom Party (the IFP) and was the secretary thereof in the Kwa Nyavu area. He stated that he received military training in the use of firearms at Amatikulu.

Cebo Majola was killed on 30 August 1991. According to the applicant he was a supporter of the ANC. The applicant states that he received information from Vukani Ngcobo, that Cebo Majola was one of the persons who attacked the applicant's home during 1987. The applicant relayed this information to Thwalitshe Ntombela, the Chairman of the local branch of the IFP and Bernard Mkhize and Bonani Phetha who were both Chairmen of the other branches of the IFP. A meeting was held between these persons and it was decided that Cebo Majola should be killed. The applicant together with Skosipi Ndunge, one Nkonyisa and one Simpiwe, thereafter laid in ambush for Cebo Majola at a bus stop as they knew that he would be arriving from Durban on the bus. The bus arrived and Cebo Majola was shot and killed by the applicant when he alighted therefrom.

The applicant states that Simiso Bhengu was also killed by him and the said Simpiwe after having received instructions from Twalitshe Ntombela to do so. Simiso Bhengu, like Cebo Majola, was also killed in an ambush at the bus stop. His killing took place during 1992. The applicant states that the instruction to kill him was issued after information was received that Simiso Bhengu, in the company of the other persons, had gone to the applicant's girlfriend's house and tried to take her away under the false pretence that the applicant had sent them to fetch her. The applicant also alleges that Simiso Bhengu, who was an ANC supporter, on two occasions had shot at him and his companions. According to an affidavit signed by Fika Bhengu, the eldest brother of Simiso Bhungu, the deceased, was not involved in any political activity.

With regard to the murders of Shoti Ndulini, Bhekizani Nzuzu, Ngoma Shelembe and Mandlethu Ngocobo, the applicant stated in an affidavit deposed to by himself on 18 September 1999 and also when giving evidence in chief at the hearing that all such persons were killed on the same night during 1992. When giving evidence in chief he stated that he, Simpiwe Ntombela, Sikhosiphi Mdunge and Nkanyiso Ndlovu went on an operation to attack the house of one Mlambo. On their way to the house they saw a number of soldiers and decided to abort the operation. On their way back home they came across Messrs Ndulini, Nzuza and Shelembe. Simpiwe Ntombela shot and killed all three of them. The reason given by the applicant for the murders was that they had received instructions to kill anybody who may identify them or who was a supporter of the ANC. He, the applicant, believed that they were ANC supporters as they were walking around in an area which was a "no-go" area for IFP supporters.

Shortly after the shooting of Messrs Ndulini, Nzuza and Shelembe they came across Mandlethu Ngcobo. He too was shot and killed by Simpiwe Ntombela. Mandlethu Ngcobo was the applicant's uncle. He was an elderly man, over 70 years of age. The applicant stated that he was killed because he was an ANC supporter who supplied arms to members of the ANC.

When being cross-examined by Ms Jelal, who appeared on behalf of the victims, the applicant stated that Ngomo Shelembe was not killed at the same time as Shoti Ndulini and Bhekizani Nzuza. He said that he was killed some months later in his, the applicant's, presence by Bernard Mkhize at a traditional ceremony.

The applicant, in his affidavit deposed to on 18 September 1999, the correctness of the contents of which he confirmed when he testified at the hearing, described the murders of Sihle Mkhize and Siyanda Ngubane as follows:

"Again in 1992 I shot Sihle Mkhize with an AK-47 rifle and Siyanda Ngubane, both at the same time. I shot them at Nkanyezini area. I was with Nkanyiso, Simpiwe, Mabhungu and Sikhosiphi. They did not shoot. We hated the ANC so much that we wanted to kill them and sweep the area clean."

However, when testifying at the hearing, the applicant said that they were not killed at the same time. He stated that Sihle Mkize was killed because he and other persons abducted the applicant's girlfriend and assaulted her. The applicant reported this to his leaders who decided that Sihle Mkhize should be killed. The applicant then, when in the company of Simphiwe Ntombela, Nkanyiso Ndlovu, Sikhosiphi Ndunge and Mabhungu, shot and killed Sihle Mkhize.

With regard to the killing of Siyanda Ngunbane, the applicant testified that he received instructions from his leaders to kill him at a traditional ceremony. The applicant, together with Simphiwe Ntombela, Nkanyiso Ndlovu, Sikhosiphi Ndunge and Mabhungu, proceeded to the traditional ceremony where applicant shot and killed Siyanda Ngubane.

The first time that applicant gave any detail of the killing of Ndabo Nqcamu was when he was being cross-examined at the hearing of this matter. He said that one day police came to his house to search for weapons. They informed him that Ndabo Ngcamu had told them that applicant had firearms at his home. The police did not find any weapons. The applicant then reported the matter to his leader who requested to see Ngcamu as he was an IFP supporter. A messenger was sent to Ndabo Ncgcamu instructing him to see Mr Twalitshe Ntombela. The message was not heeded and applicant then personally went to see Ndabo. He explained the allegations against him and advised him to go to Mr Ntombela. Again Ndabo Ngcamu failed to go to Mr Ntombela. The applicant was then instructed to kill him. The applicant and Simpiwe then went to Ngcamu's house where the applicant shot and killed him.

The applicant testified that during the period that these killings took place political violence was rife in Kwa Nyavu. The conflict between IFP and the ANC was very intense, to such an extent that it was dangerous for IFP supporters to be in certain area.

Simpiwe Constable Shelembe was called as a witness by Ms Jelal. He disputed the applicant's evidence relating to the extent of the political conflict in the area. He stated that Kwa Nyavu was predominantly an IFP area and that by 1991 the political conflict in the area had decreased. Open fighting had come to an end and there were not any so-called "no-go" areas.

The applicant was an unsatisfactory witness. He, on ore than one occasion, not only contradicted his own testimony but also contradicted a previous statement made by himself. He also seemed to make up his version of events when attempting to answer questions put to him in cross-examination. Examples in this respect are his statement that he killed Messrs Ndulini and Nzuza in a "no-go" area and him personally going to see Ndabo Ngcami. We find Mr Shelembe to have been an honest witness and accept his evidence that Kwa Nyavu, at that time, was predominantly an IFP area and that there were no "no-go" area and him personally going to see Ndabo Ngcami. We find Mr Shelembe to have been an honest witness and accept his evidence that Kwa Nyavu, at that time, was predominantly an IFP area and that there were no "no-go" areas there for IFP supporters.

The unsatisfactory features of the applicant's evidence affect his credibility to such an extent that no reliance can be placed on his testimony in respect of any of the killings. We are accordingly not satisfied that he has made a full disclosure of all relevant facts.

We also, when taking into account all the information before us, cannot positively conclude that the murders were committed with a political objective. Many of the killings, on applicant's own version, affected applicant's personal life rather than the community at large. Persons killed included persons who allegedly attacked his father's house in 1987 and also who harassed and/or assaulted his girlfriend. In addition, affidavits filed by many of the victims' close relatives state that the victims were either apolitical or supporters of the IFP.

We are accordingly of the view that the applicant's application does not satisfy the criteria set out in The Promotion of National Unity and Reconciliation Act, No. 34 of 1995. The application for amnesty is therefore 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

 
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