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Decisions

Type AMNESTY DECISIONS

Starting Date 13 March 2001

Location CAPE TOWN

Names PHAKAMANI ALEX NDINISANI

Matter AM5906/97

Decision REFUSED

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: DECISION

The Applicant applied for amnesty in respect of; his conviction and sentence on 19 May 1995 in the then Pretoria Supreme Court for the following offences which took place on 16 August 1993 at or near Zonkezizwe, in the district of Heidelberg, in the then Transvaal:

1. The murder of Jabu Patricia Mbatha;

2. The attempted murders of:

2.1 Nonhlanhla Gabela;

2.2 Phadile Ellen Gabela;

2.3 Phumele Adriana Sithole; and

3. Possession of arms and ammunition in contravention of the Arms and Ammunition Act 75 of 1969 (4 counts).

Although the Applicant was acquitted on a charge of attempting to murder one Jerry Fihlokwane Ndebele ("Ndebele") during the same incident, he said in evidence, that he also intended applying for amnesty in respect of this act.

Phakamani Alex Ndinisani ("Ndinisani") testified that he was an IFP member and described his background. He described how he was forced to flee from Phola Park and then Thokoza Hostel because of political violence. Eventually he went to live at Zonkezizwe.

On his arrival there, he discovered that the area was plagued with political violence between members and supporters of the ANC and those of the IFP. Ultimately, the ANC elements were defeated and driven from the area, which became an IFP stronghold. By this time, Ndinisani was the youth leader of the IFP in the area.

At some stage after the ANC faction had been driven out of the area, a dispute arose involving Ndebele who up to that time had been the acknowledged chairman of the IFP in the area. Ndinisani said that a dispute arose around moneys that had been collected by the community and entrusted to Ndebele for the purchase of firearms. Apparently, Ndebele could not account for all the firearms allegedly purchased and his explanations were found to be unacceptable. Ndebele was then replaced and a new committee was elected. This led to a split in the IFP with Ndebele forming his own faction also called IFP. Later in his evidence, Ndinisani conceded that this other group was also made up of IFP followers who supported Ndebele.

Despite apparent attempts at reconciliation, violence erupted between the two factions. In addition to this violence, there were also attacks by and against the area from ANC groups living in neighbouring areas.

Ndinisani testified that after this he began to believe that Ndebele was now acting on behalf of the ANC. He came to this conclusion based on information received from a person they captured and questioned. A further reason he believed this was that approximately a week before the incident he apparently saw Ndebele speaking to an ANC leader from Phola Park, one Prince, while he was passing Phola Park in a taxi. Prince had been responsible for Ndinisani's being chased away from Phola Park previously. In spite of drawing these suspicions to the attention of certain Indunas, they decided not to take any action against Ndebele. He believed Ndebele was responsible for the death of a friend and fellow member of the IFP youth, one Jabulani Kunene. When another friend and member of the IFP youth, one Alfred Ngobese died in hospital a few days later after an attack that Ndinisani believed had been instigated by Ndebele, Ndinisani decided to take matters into his own hands.

He went to his room and armed himself with an AK47 assault rifle. He then went to a place that he knew Ndebele passed regularly and waiting for him. When he saw Ndebele drive past he followed him to his home. Ndebele parked his vehicle and went inside the shack.

Ndinisani was at that stage near the corner of the shack. He saw three children sitting around a fire in the Yard. He said he then fired a warning shot into the air so as to make the children flee as he did not want to injure innocent people. The children scattered and fled into the road. As he entered the yard he heard gunshots and thought he was being shot at. He said that he then got angry and opened fire at the shack. He first fired at the door of the shack and then went around the shack firing shots into it. He said that he did this to try to give Ndebele the impression that there was more than one attacker shooting at the shack. He said he hoped that Ndebele would flee and that he would be able to shoot him when he left the shack. At one stage he tried to look into the shack but could not see Ndebele. He then left the scene and returned home. He was arrested the next day.

Ndinisani was asked whether he had seen any of the women who had run out of the shack and who had been injured while he was firing. He said that he was in a state of shock and he hadn't noticed them at all. He added that if he had seen them, he would not have continued firing. He said that his political objective was to kill Ndebele because he believed Ndebele was responsible for the attacks on their area. He thus thought Ndebele's death would bring these attacks to a halt.

He conceded that he never sought permission from any of the Indunas before launching the attack because they would not have authorised it. He also said at one stage that although he reported certain suspicions and concerns regarding Ndebele to one Induna Mbatha, Mbatha took no action against Ndebele. No further evidence was led at the hearing.

It remains to be decided whether the Applicant meets the requirements of Section 20(1) of Act 45 of 1995 as to whether "the act, omission or offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of sub-section (2) and (3)."

On an examination of Ndinisani's evidence, it seems clear that there were two factions of the IFP both with some support in the community. Ndinisani was part of the one faction and played a leadership role in the youth structure. He understood that he was however beholden to the Indunas and conceded that he did not seek their approval because he knew they would not consent to the attack. Ndebele was a leader of the other faction. What seems clear is that Ndinisani believed that Ndebele was responsible for attacks on his faction and in particular the deaths of two of his friends.

It is this latter aspect that appears to have motivated the fateful attack. This is further borne out by Ndinisani's insistence that he did not see the women who were injured by his gunfire. We find this aspect highly improbable. Ndinisani concedes that he saw the children sitting around a fire in the yard and claims to have fired a warning shot so as to avoid shooting innocent people. His subsequent shooting of the women who he conceded had nothing to do with the attacks, thus makes no sense in the light of this assertion.

Thus in the light of the fact that the attack took place within the context of a factional dispute between two IFP factions we are not satisfied that the offences were committed in the course of the conflicts of the past and that the Applicant falls within the provisions of Section 20(2).

The Committee, after considering the guidelines set out in Section 20(3) is further not satisfied that the offences committed were associated with a political objective.

In the result, amnesty if REFUSED.

SIGNED AT CAPE TOWN ON THIS 13TH DAY OF MARCH 2001

ACTING JUDGE D POTGIETER

MR JB SIBANYONI

MR I LAX

 
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