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Type AMNESTY DECISIONS
Names MXOLISI KALI
1. The abduction and assault of Prince Pitse, Jabu Mlotswa, Themba Khumalo, Christopher Dube, Matsamai Moloi, Busili Ngubane and;
All the offences were committed in Johannesburg in or about April 1994. The Applicant was convicted and sentenced to two (2) years' imprisonment and a two (2) year suspended sentence. At present he is released on bail pending the outcome of his amnesty application. At the time of the commission of the said offences the Applicant was a member of the African National Congress ("ANC") and a supporter of its military wing, Umkhonto weSizwe ("MK"). In the 1980s, the Applicant testified, he received what he called a "crash course" in military training in Katlehong. In the 1990s he received further training in different places, inter alia the Eastern Cape. The training was given to him and other youths who supported the ANC because at the time in the East Rand township residents were being attacked by Inkatha Freedom Party ("IFP") supporters and members of the Security Forces, viz the South African Police Force ("SAP"). Initially, the Applicant was solely a member of the Self-Defence Units ("SDUs") local structures which were set up by the ANC to enable its supporters to defend themselves in the ongoing violence. Vusi Vilakazi was his Commander. Later the Applicant was recruited by the said Vusi to join MK, which he did. The Applicant testified that he did not personally know for a fact that the hostel dwellers were IFP members as he had never seen their membership cards, but every time they attacked township residents they were singing and chanting IFP slogans and there were widespread perceptions in the township that they were IFP members. In or about 1991 or 1992 the Applicant was approached by Robert MacBride who suggested that they set up an SDUs' office in Katlehong. (We deal with MacBride's evidence below). The Applicant agreed.
At that stage he was a commander of the SDUs and his tasks entailed establishing SDUs in those areas where none existed. Members of SDUs had to report to him which reports he conveyed to the ANC Regional Office in Gauteng, viz to Robert MacBride, Vusi Kunene and Africa Khumalo. (We shall deal with the evidence of Khumalo in due course). The reports entailed who had been attacked, where and when. As a co-ordinator of the said activities the Applicant attended inter-organisational meetings where he met IFP leaders. These forums were set up to end the violence. In the circumstances the Applicant very much feared for his life as many ANC supporters were being killed. In or about 1993 the Applicant was appointed as the VIP Protection Unit General for the ANC Regional Office. is duties entailed escorting senior ANC officials whenever they went out to address rallies.
Then followed the events that gave rise to the present application. It was on a Saturday afternoon in April 1994, but the Applicant is unable to recall the precise date. At the time the Applicant and other members of the VIP Protection Unit were being accommodated at the Holiday Inn in Johannesburg where they performed their normal duties. He was on a weekend off and was going to visit his family in the township with a microbus. The vehicle which had been lent to the ANC by his mother was parked in the basement of the Lancet Hall, Jeppe Street where the ANC Regional Offices were situated. As he was walking towards the kombi he was approached by Obed Bapela, one of the ANC officials. The latter asked him to accompany him to Alexandra which he agreed to do but he first put his clothes in his vehicle and an assortment of ANC placards, stickers and security-related documents. He says these contained very sensitive information. It was about a week before the 27 April 1994 elections and at a time when ANC members were being killed. Before accompanying Bapela the Applicant went into the ANC offices where he "booked" a pump action firearm. This was one of the number of licensed and unlicensed firearms that were kept at ANC offices. They then proceeded to Alexandra where Bapela had to address a meeting. They were using Bapela's vehicle and his was left in the basement.
He says they returned from the meeting very late. The Applicant was hungry and wanted to buy himself food. The ANC offices were closed by then and he was thus unable to return the firearm. He proceeded to a shop in Hillbrow, viz Fontana. On arrival there he parked the microbus a few meters away. The ANC documents and stickers inside the vehicle were clearly visible to passers-by. When he came back from the shop he noticed that the middle window on the left side of the vehicle was open. This gave him a fright as he immediately felt that something untoward had happened. He concluded that his life was in imminent danger. The ANC placards with the inscription inter alia: "Vote ANC. Now is the time!" were missing from the vehicle. There were other items that were also missing some of which he later recovered. His National Identity Document which reflected his full names and address had also been stolen and this was a matter of very grave concern to him because this would make it easy for his political enemies to track him down and attack him. A document containing very sensitive security-related information had also been stolen. This, he concluded, would make it very easy for the ANC's enemies to know its plans in the campaign for the elections. The contents of this particular document were of such a nature that it would have been easy for enemies to know where and when ANC leaders were going to be addressing political rallies. To his surprise, the firearm had not been stolen.
The Applicant says he went to report the matter at the Hillbrow Police Station. The police told him that he was not the only victim of crime in that area. Many people's houses and cars had been broken into and property stolen. They showed him a large dossier of dockets relating to such incidents and said because they were too busy they could not resolve his case. For that matter, so they told him, numerous people had lost vehicles and very valuable items; his case was very trivial. The Applicant says in the given circumstances he asked the police if he could investigate the case himself and, after some discussion, they agreed that he could. But he was to report back to the police every step he took in regard to the case. He was given a piece of paper with the name of the police officer to whom he would have to report progress on the matter. It also contained the officer's telephone numbers as well as the case number. The Applicant says at the time he believed that the paper authorised him to effect a citizen's (private) arrest.
From the police station the Applicant says he went to Hillbrow where he met a boy who promised to give him a lead as to the identity of the culprits. Nothing came of the boy's promise. Then on a Saturday evening the Applicant and his comrade friend, Motaung, took linen and put it in the microbus. They drove to Hillbrow and parked in the same street where it had been broken into before. They went to stand on a balcony at Kentucky Chicken. At about 12 midnight and whilst they were waiting there they saw about four (4) to five (5) young boys trying to break into the vehicle. One of them had an object that looked like a screwdriver which he used to open the window. When the window was eventually opened one of the boys got into the vehicle. The Applicant and Motaung then walked towards the vehicle where they grabbed the boy that was inside. The others escaped. On questioning the suspect he pleaded with them not to assault him. He revealed that his name was Temba; that they were the ones who had broken into their vehicle at Hillbrow the previous week; that they had sold the clothing to Ngubane who worked in a flat in Hillbrow; that the microbus radio and speakers were sold to a taxi man who occupied a flat where Ngubane was employed and that they (the boys) all stayed in the same flat. Upon further questioning Temba said they could not take the firearm because it was too big to hide and would have led to their arrest. Temba further informed them that Ngubane was an IFP member and that he was prepared to take then to him. He occupied Room No 310. According to Temba that was where all the stolen goods were being kept.
The Applicant took Temba to the Hillbrow Police Station where he found two (2) officers. One of them was very keen to help. He started questioning Temba and demanded that he takes them to the place where the goods were being kept. Initially Temba took them to a wrong flat and this particular policeman was very angry. He assaulted him and as a result of the assaults Temba started bleeding profusely. The Applicant and the second policeman who was suspiciously passive throughout the questioning did not assault Temba. Temba promised to take them to Ngubane and the police said they were not going to go there and suggested that the Applicant should go to Ngubane with Temba. The Applicant says it was as if the police knew who Ngubane was and this caused further suspicion on his part. On their way to Ngubane, Temba suggested that they first fetch one of his friends who was also involved in the burglary. He was employed at Boobs Nightclub. At the club there was an altercation between the Applicant and the manager. The latter called the police who arrived and demanded to know what was happening. The Applicant showed them the paper that was given to him by the police when he first reported the burglaries. The police accepted his explanation that he was conducting a private investigation. He took Temba's friend with him and they then proceeded to the place where Ngubane was employed, apparently as a security guard.
On their arrival at Ngubane's workplace Temba told Ngubane that the Applicant had come to fetch his clothes. According to Temba one of the items that was in the possession of Ngubane was a military uniform which he said he was going to use to conduct robberies. Ngubane adopted a very recalcitrant and negative attitude and retorted that Temba was "crazy". When the Applicant addressed Ngubane his response was the same, namely that he was crazy as well. Seeing that they were not going to secure any co-operation from Ngubane, they left. It was the Applicant, Motaung, Temba and his friend. Temba told them that some of his clothes were being kept at Twilight Zone where street kids were accommodated. They went there and found a woman who allowed them to search the premises. They could not find anything. They left. It was now in the early hours of the morning. The Applicant says at that stage he was very tired and they went to the ANC office where they took a rest in the reception section.
At about eight o'clock in the morning of the next day they went back to the police station. The police who were on duty the previous night had already left and there were two (2) policemen who did not know the background of the case. When the Applicant told them that they should arrest Temba and take him into their custody they refused and said they could not take into their custody a person who had been assaulted. Temba still had visible signs of having been assaulted. The Applicant told them that Temba had said he sold the speakers and the radio to a taxi man and that he (the Applicant) wanted them to escort him to the said taxi man. He said he only needed one policeman to accompany him to the taxi man. They still refused. The Applicant realised that the police would not help him to resolve the case.
From there he went to Petrus Mkwanazi, a senior to him, whom he requested to accompany them because he was older than him and would probably be taken seriously by the police. Mkwanazi agreed and Temba took them to a flat, also in Hillbrow, where they found a man whom Mkwanazi addressed. He told him that they were not there to fight. He said they could take the speakers and accepted that he had lost his money by buying stolen goods. They went back to the police to show them that they had found the speakers. The police very sarcastically suggested that: "It means that you people are good investigators and good police, you can do this job well (better) than us. You people have recovered the speakers, then you can continue with the rest of the investigation." This was on a Sunday afternoon and the Applicant says they accordingly went ahead with the investigation in the course of which they found other boys who were wearing the Applicant's clothes. They took the boys to the ANC office. There they temporarily kept them in the reception section whereafter they took them to the basement because the office was overcrowded. One of the boys told the Applicant that Ngubane's boss, Rasta, had taken the military uniform. Ngubane was not at work at that stage and was going to resume duty later.
At the appropriate time, on the same day, the Applicant and his colleagues went to confront Ngubane at work. He was aggressive and un-cooperative and as a result of this attitude a fight ensued between Ngubane and the Applicant's companions. They took him by force and put him inside the car. They took him to the ANC offices. On arrival at the ANC offices they found that Ngubane was wearing an IFP T-shirt underneath his white shirt. He was still refusing to admit that the Applicant's clothes were in his possession. All the boys were claiming that most of the stolen items were in Ngubane's possession.
When they went to Ngubane's manager he opened his apartment and this is where they found the items, viz the linen, the duvet which had also been stolen from the microbus. Ngubane was still adamant that he did not know the boys. The Applicant states that although Ngubane was assaulted by his companions to compel him to disclose what was the motive behind his actions he was still not co-operating. At that time the ANC and the IFP supporters were engaged in a very violent conflict which claimed many lives. In one of these incidents a kombi vehicle in which the Applicant and other ANC members were travelling was attacked. At some point in the course of the questioning of Ngubane one Frank, an ANC official, requested the Applicant to escort him to Soweto which he initially refused to do but eventually he agreed. On his return they discovered that one of the boys had escaped and whilst they were preparing to take Ngubane and the other boys to the police station, the police came. In the ensuing struggle between the police and the ANC security guards the police firearms were confiscated but there was no shooting. The ANC security guards were however persuaded by the leadership to return the firearms to the police which they did. They were not arrested but requested to make warning statements to the police the following day. Subsequent to the incident the Applicant was suspended by the ANC and Tokyo Sexwale told him that this matter would be looked into after the elections. This never happened.
The Applicant further testified that he viewed the burglary in a very serious political light because the firearm had not been stolen and if it was an ordinary criminal, he would have stolen it. The fact that it was not stolen also convinced him that the culprit was a political enemy who was looking for useful information that could be used to kill ANC supporters and their leaders. He had informed some of the superiors in the ANC office about the matter and others were aware of the presence of Ngubane and the other suspects in the ANC offices. Those he had not informed were certainly aware of what was happening as the suspects were, at some point, being held in the reception area. In particular, he had shown Khumalo the piece of paper from the police. Khumalo told the Applicant to take the suspects to the police and this he never did. He states that it was because at that stage he was still looking for one more suspect, namely Rasta. He was not defying Khumalo's order. Robert MacBride; Vusi Kunene and Mondli Gungubele were also aware that the Applicant's vehicle had been broken onto; that he had found some of the suspects and that he was continuing with his private investigation but because this was shortly prior to the elections it was not possible to hold a detailed discussion with anyone of the leaders.
MacBride testified that he knew the Applicant as a disciplined and brave comrade. He met him in 1992 whilst he (MacBride) was the co-ordinator of activities in the East Rand. He further testified that shortly after the Applicant had apprehended the suspects he telephoned him at home. He told him to wait and keep the suspects at the ANC office as he was coming to join him. He wanted to question the suspects himself but when he arrived there the police were in the building. He went on to say that from a security point of view he viewed the matter in a very serious light. ANC leaders and supporters were being killed on a daily basis and he was partly charged with the task to investigate IFP and Security Police Hit Squads.
Shadrack Khumalo also testified and said that at the relevant time he was an ANC Regional Head for the Intelligence and Security Department. He further confirmed that the Applicant worked under him. Regarding the ANC letter which is contained in the bundle he states that the Applicant was not authorised by the ANC to carry out the act in question, Khumalo explained that in general leaders of the ANC would not be involved in operational matters. It was entirely in the discretion of the foot soldier to decide how to deal with the situation in which he found himself. The Applicant was in such a situation. He told the Committee that when he became aware for the first time that the suspects were being held at the ANC offices he instructed Jeff Kwembu to tell the Applicant to take them to the police. At that stage he never spoke directly with the Applicant and was in a hurry to attend a meeting at Shell (Luthuli) House. On his return he learnt that his order had not been carried out and he again told Madiba (not Nelson Mandela) to tell the Applicant to comply with the order. The Applicant was not in the office and he could not directly discuss the matter with him and it was only when the police came that he had an opportunity to speak to him. When the Applicant explained to him what was happening he understood and accepted his reason for not taking the suspects to the police. Khumalo says he viewed the matter in a very serious light as an IFP member, Ngubane was said to be involved and sensitive security-related documents had been stolen.
He further testified that the Applicant was one of the outstanding and committed members of the ANC security department who could be trusted to carry out orders on behalf of the organisation. He was satisfied that in the circumstances the Applicant had dealt with the situation quite appropriately.
After considering the evidence we are satisfied that the Applicant has complied with the formal requirements of the Act. The offences committed are acts associated with a political objective in terms of the Act and he has made a full disclosure of the relevant facts in the matter. We accept that he was protecting members of his organisation, the ANC, including himself, when he committed the offences in question. Given the relevant context within which the incident occurred, it cannot be suggested that he acted for personal gain, ill-will or spite. It is a notorious fact that the period prior to the elections was a time of intense political strife and violence in the country.