: DECISION
These are applications for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act No.34 of 1995 ("the Act"). The matter relates to an incident which occurred in the later afternoon of Saturday, 24 February 1990 at or near Gandlanani Village, Khani Settlement in the Giyani District in the then homeland Gazankulu which is presently part of the Northern Province. Pursuant to the incident, the Applicants and one other person were convicted in the Gazankulu Regional Court of the murder of Mashavela Jackson Baloyi, a count of arson in respect of the hut of the deceased, a count of assault with intent to cause grievous bodily harm in respect of Yuza Mack Baloyi, the brother of the deceased, and one count of arson in respect of five huts belonging to the former. Both Applicants were sentenced to an effective 10½ years of imprisonment which sentence they have served. Applicants were released from prison on 25 September 1998.
The Applicants were the only persons to testify at the hearing. Although Yuza Baloyi and the widow of the deceased were present throughout the proceedings and were in fact legally represented at the hearing by Mr Nyawuza, they indicated in the course of the hearing that they do not wish to oppose the applications. In the course of his address at the end of the proceedings, Mr Nyawuza very properly indicated that in view of the facts and circumstances of the matter, which are common cause among the parties, that the applications comply with the requirements of the Act and that amnesty ought to be granted to both the Applicants. The matter is accordingly approached on an uncontested basis.
The relevant facts as set out in the versions of the Applicants can be summarised briefly.
At all material times both Applicants were supporters of the African National Congress ("ANC") which had established a presence in the village well before the date of the incident. Two representatives of the ANC namely Lawrence and Dan who hailed from the University of the North, maintained regular contact with the residents in the village. They arranged various meetings where politics were discussed and the interests of the ANC advanced.
First Applicant, Mr Rikhotso, actively participated in these events, while the Second Applicant, Mr Kubayi, did not attend any of these meetings. The political discussions focused on the struggle for liberation of the disenfranchised masses, and on a more specific level, the adverse role played by traditional leaders and other traditional institutions such as inyangas (wizards or witches) in opposing the cause espoused by the ANC. the general view expressed was that these structures basically supported the apartheid system and were the political enemies of the people. The community was encouraged to confront these structures and individuals concerned and should follow the strategy adopted in the cities where members of the youth were particularly active in making their country ungovernable.
During this period a member of Umkhonto weSizwe ("MK"), the military wing of the ANC, one Commander, who had received military training abroad, was also active in the village. Commander had recently returned from Lusaka an was living in the nearby Giyani township whence he was playing a leadership role in the village. He had indicated that he would be giving military training to members of the youth in the village but had not yet done so by the time that the incident in question occurred.
Gandlanani Village is situated in an undeveloped rural area where residents followed a tradition way of life. Like in many other similar communities, the residents of the village held a deep seated belief in witchcraft. The Applicants were no exception. They similarly believed in the supernatural power of inyangas and their ability to visit evil upon people. Earlier during the week of the incident, it became known that Yuza Baloyi was identified as an inyanga who had bewitched certain people in the area. This information was acquired by a delegation of ANC supporters from the village who had approached a sangoma or African traditional healer for assistance. Plans were being made to dispossess Yuza Baloyi of the witchcraft paraphernalia which was kept at his home and was used to commit evil deeds against innocent people. Two other residents of the village were likewise identified as inyangas and similar action was planned against them. It was accepted among the ranks of political activists in the village that the exercise of witchcraft was aimed at impeding the progress of the liberation struggle and was in particular aimed at impeding the progress of the liberation struggle and was in particular inimical to the interests of the ANC. The planned action against the inyangas was accordingly politically motivated.
On the day of the incident, a meeting of residents was called near the tavern in the village. The meeting was addressed by Lawrence, Dan and Commander. The speeches were of a political nature and the meeting was encouraged to act against inyangas who were labelled as political enemies. At some point during the proceedings two local ANC members, Bright Rikhotso and Bridge specifically reported that Yuza Baloyi and the other two village residents were identified as inyangas by a sangoma. A decision was taken to act against these persons and in particular to destroy their witchcraft paraphernalia. Lawrence, Dan and Commander spoke in favour of and supported the decision to act against the inyangas. The crowd started singing and chanting slogans of a political nature and proceeded to the premises of Yuza Baloyi. On the way, other residents were encouraged to join the crowd. Second Applicant, Mr Kubayi, was one of those who was met on the way and persuaded to join the crowd. Second Applicant learnt along the way what the purpose of the crowd was and he associated himself and agreed with the intended action. When the crowd arrived at the premises of Yuza Baloyi, he had already collected a small contingent of his own allies armed with spears and traditional weapons. They immediately started stoning the crowd which at first scattered and later started throwing stones back at Yuza Baloyi's group.
The Applicants were part of the crowd that fled and was being pursued by Yuza Baloyi and his group. At some point, First Applicant stumbled and ell down. Yuza Baloyi, who was armed with an axe, caught up with him and attacked the First Applicant with the axe. First Applicant sustained two wounds to the head and started bleeding profusely. Part of the crowd stoned Yuza Baloyi who retreated. This gave First Applicant an opportunity to escape from the attack. The property of Yuza Baloyi, including his witchcraft paraphernalia, was set alight and destroyed. At some point, the deceased tried to intervene. He became involved in a fight with the First Applicant who had earlier been injured in the attack upon him by Yuza Baloyi. The rest of the crown intervened in the fight between First Applicant and the deceased and started stoning the latter. The deceased died as a result of the injuries which he sustained during the stoning. The property of the deceased was also set alight and destroyed.
Having carefully considered the matter, we are satisfied that the entire incident constitutes an act associated with a political objective as envisaged in the Act. It is clear that the attacks in question occurred in the course of a political uprising. The action of the crowd in confronting Yuza baloyi and destroying his witchcraft paraphernalia, was clearly politically motivated. Although it was not initially expressly envisaged that the deceased would be attacked and killed, it is clear that such an eventuality was reasonably foreseen in the cause of overcoming any resistance put up against the plans of the crowd.
We are accordingly satisfied that the attack upon the deceased fell within the ambit of the politically motivated action agreed upon by the crowd. We are, furthermore, satisfied that although the Second Applicant was not part of the initial meeting and planning of the attack against the inyangas, he clearly associated himself with the eventual actions of the crowd in attacking both the victims in question and their properties. Second Applicant in fact expressly conceded that he was fully aware of and acquainted with the consequences of other incidents in nearby villages where actions were taken against perceived inyangas. It was accordingly reasonably within his contemplation that the violent action taken against the victims was likely to result from the intended actions of the crowd.
In the circumstances we are satisfied that the applications comply with all of the requirements of the Act and amnesty is accordingly hereby GRANTED to the Applicants in respect of the following incidents which occurred on or about 24 February 1990 at of near Gandlanani Village, Khani Settlement, in the district of Giyani, Gazankulu:
1. Murder of Mashavela Jackson Baloyi;
2. Arson in respect of the immovable property of Mashavela Jackson Baloyi;
3. Assault with intent to cause grievous bodily harm gainst Yuza Mack Baloyi;
4. Arson in respect of the immovable property of Yuza Mack Baloyi.
We are of the opinion that Yuza Mack Baloyi is a victim in respect of the assault and the next-of-kin of Mashavela Jackson Baloyi are victims in respect of the murder and they are accordingly referred for consideration in terms of the provisions of Section 22 of the Act.
DATED AT CAPE TOWN THIS 23RD DAY OF FEBRUARY 2001
JUDGE DENZIL POTGIETER
ADV F BOSMAN
ADV N SANDI
