This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act") by MICHAEL KHININI PHAMA, an adult made born on 10 October 1948. Applicant is illiterate and has caused a number of amnesty application forms to be compleated and submitted to the Amnesty Committee on his behalf. There are three application forms which form part of the papers before us. (Applicant is under the impression that there were in fact four applications forms completed on his behalf.) Although these applications forms refer to a number of incidents, only the following three incidents constitute the subject matter of the application before us:
3. The killing of Jacobus Lukas van der Merwe and the attempted killing of H.I. Muller and C.S. Coetzee, all traffic officers, on 27 March 1992 at or near Alrode in the district of Alberton ("the traffic officers attack")
Applicant was sentenced to life imprisonment in respect of each one of the 21 murder counts, to an effective 192 years imprisonment in respect of 16 attempted murder counts and an effective 10 years imprisonment in respect of unlawful possession of arms and ammunition, which were taken together for purposes of sentence.
Applicant testified in support of the application which was opposed by a number of the victims of the stadium and taxi shootings, some of whom also testified. There are no material conflicts of fact between these various versions. The salient features of the evidence as it relates to each incident are as follows.
The township of Thokoza and other adjacent townships on the East Rand experienced an intense and violent political conflict between members and supporters of the African National Congress ("ANC") and the Inkatha Freedom Party ("IFP") during the early 1990s. It was not until after the first democratic elections during April 1994, that this conflict was eventually resolved. The conflict resulted in loss of life, destruction of property and the displacement of large numbers of township residents. This resulted in the hostels on the periphery of the township becoming IFP strongholds and the township of Thokoza as well as the Phola Park informal settlement adjoining the township, becoming ANC strongholds. Reciprocal attacks were launched on these respective strongholds by opposing factions.
Under the guidance of the ANC the occupants of ANC strongholds established Self Defence Units ("SDU" 's) to protect their areas. These SDU's were armed and they engaged in battles with IFP supporters.
At all material times, Applicant was a member of the ANC and of the SDU at Phola Park where he was residing. He was also the chairperson of the ANC Committee in the F-section of Phola Park. At one stage Mlungisi Ceba was the commander of Applicant's SDU but at the time of the incident it was under the command of Johnson Mbathani. There are indications that Ceba was a police informer who had infiltrated the SDU for nefarious purposes.
On the Friday before the incident, which occurred on a Sunday, the SDU received news from people employed in the nearby industrial area, that the IFP planned to attack the ANC areas on the coming Sunday. The SDU met on the Saturday to plan a preemptive attack to avert the pending IFP attack. On the morning of the attack the SDU arranged for a vehicle to reconnoitre the movements of the IFP supporters to ascertain which route they would be following. The SDU had previously decided on alternative plans to attack depending on which route the IFP supporters would follow. After it was reported that the IFP supporters were using the Khumalo Street route the commander deployed the members of the SDU and indicated that the attack should be launched once he had given the signal by blowing a whistle.
Applicant and his two companions were armed with automatic rifles. They were hidden from sight. Applicant was in possession of an AK47 assault rifle which was loaded with a magazine containing 30 rounds of ammunition. The particular point of attack was decided upon because it was some distance away from Phola Park and it would have enabled the SDU to repel the IFP attackers before they could get close to the defenceless Phola Park residents, particularly women and children. Even if the SDU were defeated, the IFP attackers would still not be within striking range of Phola Park and would hopefully have been left in disarray by the SDU attack to the extent that it would have been impossible for them to regroup.
A large group of IFP supporters from the hostels were moving in Khumalo street towards the Thokoza stadium to attend a rally called by their leaders. A group of youths displaying placards and singing "toyi-toyi" songs led the procession. They were followed at a distance by the first group of adults. Applicant and his companions allowed the group of youths to pass their position. When the first group of adults approached the signal was given to attack. Applicant and the others opened fire on this group. Applicant emptied his magazine on the crowd whereafter they fled the scene. Six people were killed and many injured.
Applicant's version that he was unaware of the IFP rally, was criticised on behalf of the victims. There was also an attempt to contradict Applicant's evidence that members of the IFP group in Khumalo Street were armed with spears and were wearing red headbands which indicated that they were going to war. These factors were relied upon by Applicant in support of his contention that the IFP supporters were intent upon attacking ANC areas in accordance with the information furnished to the SDU.
There was also a dispute concerning the issue whether there was a cessation of hostilities between the warring factions for some months prior to the incident. According to Applicant the attacks never ceased until April 1994 elections.
Having considered all of the evidence and arguments in this regard to the spears and red headbands was neither contradicted nor rebutted by the evidence tendered on behalf of the victims. In fact one of the victims confirmed that they were carrying shields and sticks, but no spears.
A few days before this incident, it was reported to the SDU that during the mornings occupants of a certain vehicle were seen firing on residents of Phola Park who were using the functioning water tap at the time. Members of the youth were instructed to investigate the matter and obtain full details of the vehicle. The youth reported back to the SDU with the necessary details. It transpired that the vehicle responsible for the attacks was a minibus or kombi taxi. A description was given of the vehicle including its colour and registration number. The SDU was convinced that the shooting formed part of the IFP attacks. The SDU then planned an attack on the taxi.
On the morning of the attack the SDU divided into groups and proceeded to Angus Railway station where they would await the arrival of the taxi. As Applicant and his group crossed the railway line shots were fired by the members of the SDU in the vicinity of the Angus station. Applicant noticed a vehicle fitting the description of the taxi approaching them at high speed. He fired at the taxi with his AK47 rifle. The taxi came to a halt some distance away from Applicant. An armed group of Phola Park
For some time prior to the incident the security forces succeeded in confiscating firearms belonging to the members of the SDU. As they were running out of firearms the ANC committee, chaired by Applicant, instructed three residents of F-section, Phola Park, to purchase new firearms to arm the SDU. The money was collected from the community to pay for the firearms. It was
agreed that the firearms would be purchased in Maputo. The three persons was instructed that they should resist any arrest and should not voluntarily surrender the firearms even if it meant having to shoot and kill people in the process. The party left on the Wednesday before the incident which occurred on a Friday.
The deceased was in charge of the speed trap and pursued the vehicle with the firearms after the driver failed to stop at the speed trap. In this process the deceased was shot and killed by the occupants of the vehicle.
Having carefully considered all of the evidence and other material forming part of the record as well as the arguments submitted on behalf of the parties we are satisfied that Applicant has made a full disclosure of all relevant and
and have been committed bona fide in furtherance of the political struggle waged by the ANC against the IFP in the area of Thokoza. At all material times Applicant was acting either in his capacity as a member of the Phola Park SDU on instructions of his commander or as chairperson of the ANC committee in F- section, Phola Park.
We are accordingly satisfied that the application complies with all of the requirements of the Act. Applicant is GRANTED amnesty in respect of all the offences set out in the introduction to this decision.
We are of the opinion that the persons set out in the annexure to this decision are victims of the incidents set out therein and they are accordingly referred for consideration in terms of the provision of Section 22 of the Act.