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Decisions

Type AMNESTY DECISIONS

Starting Date 22 February 2001

Location CAPE TOWN

Names SIPHO TIMOTHY MNGUNI FIRST,PHILLIP TOTO MADONSELA SECOND,SIPHO DAVID DHLAMINI THIRD,SIPHO HEIR NGWENYA FOURTH,VUSUMUZI PAULOS VILAKAZI FIFTH,MANDLA ALBERT TSHABALALA SIX,JOHANNES MAJASANA MORINGA SEVENTH

Matter AM8076/97,AM8093/97,AM8088/97,AM8096/97,AM8094/97,AM8097/97,AM4516/96

Decision GRANTED

: DECISION

This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act of 1995. The Applicants are seeking amnesty in respect of a number of offences, ranging from murder; attempted murder; assault (with intent to do grievous bodily harm) and malicious damage to property. The political context within which the offences were committed can briefly be stated as follows.

In the Standerton area the United Democratic Front ("UDF") enjoyed widespread support as a "peoples' organisation" from residents and the youth. Initially things went very well as the youth largely identified themselves with the UDF. But later problems started when some of the youth in the area viz. Whisky Lulu Louw; Mazibuko Mpila; Spundla Mapila; Mabisi Mzizi; Maluleka Dlamini; Esau Twala; Bheki and several others joined the MG Pirates Club ("the Pirates"). The later was a soccer team in Standerton and was regarded with suspicion by UDF supporters who believed that those who supported it had left the UDF and were now opposing its struggle against the apartheid government and its forces viz. the Community Councillors ("the Councillors") and members of the South African Police who were very unpopular in the black community of Standerton. Any act of associating with them was tantamount to an act of treason in the eyes of the Standerton residents and in particular, the UDF youth who were highly politicised. In the context, the singing of freedom songs and chanting of political slogans were commonplace.

The Applicants testified that at a South African Youth Congress meeting which was held at the Witwatersrand University in 1985 under the auspices of the International Youth Congress several resolutions were taken viz: that the youth should intensify the struggle against apartheid; that a "black Christmas" be declared; that stay-aways, rent and consumer boycotts be declared and all forms of campaign to pressure the regime to desist from its radical policies and enter into a dialogue with the recognised leaders of the oppressed masses in the country, such as Dr Nelson Mandela. These police and Councillors vehemently opposed these measures and there were also elements within the community who saw the campaigns as an inconvenience. They wanted to carry on with their lives and enjoy themselves during the Christmas season. the Pirates' supporters also detested the campaigns. They started attacking UDF supporters including the Applicants.

The first attack on UDF supporters was on the 25 December 1985 and this was followed by a series of attacks which led to the death of some of the UDF supporters inter alia Joel Mputhi, Bhungane Radebe and Richard Twala. The Applicants state that in the circumstances they had no choice but to attack the Pirates and their supporters. As a result of the clashes several people were killed on both sides. In dealing with the application we shall only summarise the salient facts pertaining to each incident.

1. THE KILLING OF WHISKY LULU LOUW IN OR ABOUT AUGUST 1987

Toto Phillip Madonsela, Sipho David Dlamini, Sipho Heir Ngwenya and Sipho Timothy Mnguni testified that they were involved in the abduction and subsequent murder of Louw. They had found him near an Indian Church in Standerton. They abducted him. Initially he escaped but they gave chase. He jumped into a dam wherein they also dived and stabbed him until he died. Before Louw died he confessed that the police and Councillors had promised to supply the Pirates with money and vehicles if they eliminated members of the UDF and stopped their activities. After the incident the Applicants gave a verbal report to Mandla Dlamini, who worked for the South African Council of Churches and was gathering information on the various incidents of violence in the area. Some of the Applicants were subsequently arrested and charged but were acquitted due to a lack of evidence.

2. THE NECKLACE KILLING OF MANDLA MAZIBUKO IN OR ABOUT JANUARY 1987

Sipho Heir Ngwenya and Mandla Twala (the latter has not applied for amnesty) were at a friend's house when they saw Mazibuko, a member of the Pirates. he was going past the house. They pursued and when they found him they hacked him with pangas and jungle knives. Fortunately for him, he did not die at that stage but because they wanted to kill him they took a bakkie and transported him to Loss Section also in Standerton. There they dowsed him with petrol and put a tyre around his neck. They then set him alight. He died on the spot. Ngwenya was arrested and charged with the incident but was subsequently acquitted.

3. THE BUS ATTACK ON THE N3 FREEWAY, STANDERTON, ON OR ABOUT MARCH 1987

The incident involved Madonsela, Dlamini and Tshabalala who launched a petrol bomb attack on a bus which was transporting Pirates players and fans to Thokoza. The Applicants say at that stage they had left Standerton in fear for their lives. While based in Thokoza, they became aware from media reports of the forthcoming match and decided to waylay the bus on the N3 National Road. The Applicants state that as a result of the attack several occupants of the bus were injured, but they are not sure if any person was killed. those who sustained injuries were Sekoele Aubrey Mabola, Chris Liphinda Mpila, Mafika Ngwenya, Joyce Makhubela and several unknown persons.

4. THE KILLING OF THREE (3) VIGILANTES VIZ. MABALEKA DLAMINI, ESAU TWALA AND MZWAKHE SAMSON NHLAPO IN OR ABOUT JUNE 1987

Sipho Heir Ngwenya, Johannes Majasana Maringa, Papa Nkabinde, Dida Twala and other UDF members took part in the action. The UDF comrades saw vigilante Patrick Sithole in the street. As they tried to approach Sithole he ran away. They gave chase. It soon emerged that he was not the only vigilante in the area as others appeared and they all ran into a certain house where they took refuge. The UDF crowd surrounded the house. Ngwenya fired with his firearm through the window but no person was injured. The vigilantes, realising that they were being attacked, burst out of the house and fled. The UDF crowd gave chase and caught up with them. They hacked three of the vigilantes with pangas and jungle knives. The vigilantes were killed because they sided with the Pirates and Councillors. They also actively persecuted UDF supporters.

5. THE KILLING OF MBISHI MZIZI IN OR ABOUT AUGUST 1987

The Applicants state that this particular attack was carried out by Vusi Paul Vilakazi, Sipho Shabalala and one Papa, all being members of the UDF. Some of the perpetrators have since died. They were singing and chanting freedom songs in the street when they saw Mzizi. He ran away. They pursued and found him in a shebeen where they dragged him outside. They took him to the street where they stabbed him with knives and pangas. They left him for dead. The next day they learnt that he had died as a result of the injuries which he sustained in the course of the attack. This incident was reported to Mandla Dlamini.

6. THE ATTEMPTED MURDER OF SIPUNDLA MPILA IN OR ABOUT MARCH 1987

According to Mandla Albert Tshabalala he was walking alone in the evening at Simendeni Section of the township, Standerton, when he saw Sipundla who was in the company of two (2) other persons. Tshabalala had an unlicensed firearm in his possession. He shot Sipundla in the stomach. His companions ran away. Spundla did not die from the injuries which he sustained. The Applicant testified that he shot Sipundla because he was one of the Pirates members who went around the township and raided UDF comrades homes. He would attack and kill them. Sipundla was also known to be working very closely with the Security Police viz. Sergeant Meyer who transported Pirates members during the conflict. The Pirates members had told Tshabalala's mother that one day they would decapitate him. Tshabalala took the threat very seriously and was always on the alert. As a matter of fact, that particular evening Tshabalala went out to look for Mpila and his group so he could kill them.

Not all the Applicants were involved every time an attack was carried out but they were all present at the public meeting on the 3 January 1987 where it was decided that the Pirates members and their supporters should be killed. They all supported the decision and its implementation. They saw, they identified themselves with those who carried out the attacks and all seek amnesty for any offence(s) or delict(s) flowing from the execution of the decision.

One of the problems which emerged at the hearing was the absence of an application form in respect of Johannes Majasa Moringa. He is presently being held at Leeuwkop Maximum Security Prison for the murder of one Mr Dlamini in respect of which he applied for amnesty and for his involvement in a spate of attacks and counter-attacks on the Pirates. He testified that he completed the requisite amnesty application form and handed it back to Sipho Ngwenya.

Later in or about june 2000 Moringa was visited by the TRC investigator, Mr Matlala who told him that he had difficulties tracing his whereabouts. He asked him some questions and wrote his answers down. Ngwenya testified and said that he wrote a letter to the TRC offices in Cape Town where he requested application forms to be sent to him by fast mail. On receipt of same he distributed them to all to the Applicants, including Moringa. They all completed them. He had personally taken the form to Moringa at Leeuwkop Maximum Prison. He sat and waited there whilst Moringa was busy completing the form in which he applied for the Standerton incidents and for the murder of Dlamini. He took Moringa's form as well as his co-Applicants' to the Standerton Magistrate for a Commissioner of Oaths' signature, which the latter commissioned in spite of the fact that at the time none of the Applicants were before him. The forms were all forwarded to the TRC in Cape Town whereafter Ngwenya called and was told by a staff member, a lady, that she had received all the forms, except the one of Madonsela. Later he was advised telephonically, that Madonsela's form had been found. All appeared to be well and there was no mention of Moringa's form not having been received. Ngwenya added that Moringa was making a mistake when he testified that he completed the form in 1997. He said it was some time in 1996 before the closing date for the receipt of amnesty application forms.

We have taken note of the fact that all the Applicants' application forms bear the 22 April 1996 as the date on which they were received by the TRC offices. This seems to accord with Ngwenya's evidence. In the circumstances of the case we make a ruling that Moringa's oral evidence be accepted.

We have ruled that we will not entertain evidence pertaining to the murder of Dlamini in the Transkei as that particular incident was not set down for hearing. We direct that the matter be enrolled for a later hearing.

We shall now proceed to deal with the merits of the case.

After carefully considering the evidence and the political context within which the offences referred to herein were committed, we are of the view that the Applicants are entitled to amnesty. In it quite clear that the offences committed are "acts associated with a political objective" in terms of the Act and there can be no gainsaying of the fact that they have given a full disclosure of the relevant and material facts. We accept that when the acts were committed they were acting in the interest of their organisation, the UDF, and the survival of its members. It also geos without saying that they acted to defend themselves as they were being targeted by what they saw as part of the enemy forces. The Applicants have been quite frank about the fact that no person in the circles of political leadership in the UDF gave them an order to attack their targets. It was purely a matter of necessity.

In the result amnesty is GRANTED to all the Applicants for all the offences referred to above as well as for any other offences or delicts flowing from the incident. We further recommend to the Reparation and Rehabilitation Committee those persons identified above as targets of the attacks for which amnesty is being sought, be declared victims and considered for the award of reparations.

SIGNED AT CAPE TOWN ON THIS 22ND DAY OF FEBRUARY 2001

D POTGIETER SC (AJ)

ADV N SANDI

ADV F BOSMAN

 
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