DECISION
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The applicants applied for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No 34 of 1995 for the attack on the bus carrying passengers perceived to be ANC supporters or members, who worked at Escort Bacon factory on the 28th September 1992 near Ratanda Hostel in Heidelberg.
They were convicted of:
murder of Thomas Tshwari,
attempted murder of 41 persons,
unlawful possession of 2 x RG 42 handgrenades explosives , and
unlawful possession of explosive material (3 x petrol bombs),
committed at or near Ratanda Hostel in the district of Heidelberg and sentenced to 30 years imprisonment.
The first applicant testified that he was a branch general secretary of the IFP at Ratanda as well as being chairperson of the RATANDA IFP youth brigade. At the time of the commission of the offence he lived at Ratanda Hostel and worked at Escort Bacon. At all times material hereto there were two Unions at the company, Uwusa which was affiliated to the IFP and FAWU which was affiliated to the ANC. There was conflict between the IFP and the ANC at Ratanda which led to both organisations allegedly launching attacks against each other. On the 20th September 1992, Mgababa Myeki an IFP member was killed allegedly by ANC supporters who worked at Escort Bacon. His death sparked grave anger amongst IFP members and a meeting of the Executive of the IFP branch in Ratanda was convened at which a decision was taken to launch a retaliatory attack on the ANC supporters at Escort Bacon. The applicant attended this meeting. The meeting decided to bomb a bus carrying FAWU members, who were perceived to be ANC supporters in order to cause as many ANC casualties as possible. The first applicant participated in the planning of the attack and furnished vital information to the meeting concerning the route and times of departures of the buses used exclusively by the FAWU members working at Escort Bacon to get home from work. He evinced that when the bus was bombed he did not participate in any way whatsoever though he knew that it would be attacked on that day. In fact he was also present at the second meeting in which IFP operatives Alfred Boss Mazibuko, Nkosinathi Khanyile, Nkosinathi Emmanuel Mdletshe and Mzwakhe Myaba were instructed to attack the bus and he witnessed the attack that subsequently took place.
At the time of the attack on the bus he was standing at the gate of the hostel. He observed the bus approaching from the filing station ad drive towards one of the blocks of the hostel. Once it was parallel to one of the hostel blocks closer to where he was standing, he saw the IFP operatives throw handgrenades at the bus and heard the explosion immediately thereafter. He then ran behind a small office in the hostel and hid there for safety. A few minutes later he came out of safety and saw the bus veering from the road up to Mponza street.
Ms Johanna Msibi gave evidence on behalf of the objectors. She stated that she was a passenger of the ill-fated bus and that shortly before the attack she had seen the first applicant throwing an object in the direction of the bus and that immediately thereafter there was and explosion. She testified that there were three other persons who were with the applicant at the time and that the second applicant, Raphael Senzangakhona Sithomo was one of them. She had known both applicants for over 13 years and she contended therefore that she could not have been mistaken in identifying both applicants at the scene of the attack on the bus.
The first applicant, however disputed the evidence of Ms Msibi that he participated in the attack by throwing something at the bus, after which an explosion occurred. He contended that Ms Msibi might have indeed seen him at the scene of the attack because he was in the vicinity at the time the bus was attacked but he persisted that he did not throw anything at the bus. He averred that he was quite visible when the bus approached the hostel and could have been seen by Msibi and thereby be associated with the throwing of the grenade by her. He further testified that he had lied when he gave evidence at his criminal trial in order to protect the IFP operatives and his organisation, the IFP.
The second applicant, Sithomo gave evidence and testified that he did not know anything about this incident as he was not present in the area when the incident occurred, as he was in Natal on leave. This evidence was consistent with his evidence at his criminal trial. The objectors did not challenge his evidence in this regard.
Having considered all the evidence led before us, we are satisfied that the second applicant’s application does not comply with Section 20(1) of the Act as he denies any knowledge whatsoever about the offences for which he was convicted and his application is accordingly refused.
In so far as the first applicant’s application is concerned, the objectors have conceded that the incident occurred as a result of the conflict between the two Unions FAWU and UWUSA who were affiliated to the ANC and IFP respectively and that the incident arose as a result of a conflict between these political organisations. They have however submitted that the applicant has not made a full disclosure of his participation in the offence for which he seeks amnesty because whilst Ms Msibi has testified that she saw the first applicant at the scene of the crime throwing an object at the bus, the first applicant has contended and persisted that he did not physically participate in the commission of the offence in any manner whatsoever. They therefore oppose the first applicant’s application on this basis.
Having regard to the evidence before us and the ground on which the opposition to this application is based, what has to be decided is whether the applicant’s version can on a balance of probabilities be accepted about his non physical participation on the attack on the bus as opposed to Ms Msibi’s version.
The first applicant has admitted to having been in front of the Hostel when the bus was approaching the filling station up to the point when it was attacked next to one of the blocks of the hostel not far from where he was, which would explain why he was identified by Ms Msibi shortly before the explosion occurred. In our view Ms Msibi was an honest and impressive witness and recounted the events to the best of her recollection. We however find it more probable that Ms Msibi could have associated the applicant with the throwing of an object at the bus because indeed shortly after recognising him next the to Hostel (not far from the scene of the attack) an explosion occurred.
Moreover she alleges to have identified the second applicant as well at about the same time and at the same place whilst the second applicant has emphatically and categorically stated that he was not at the scene at all but was in Natal on leave. The second applicant’s testimony in this regard was not challenged by the objectors. Her testimony in this regard could therefore have been mistaken.
We further find that it would be highly improbable that and applicant, who has been convicted of an offence on the basis of his direct participation as testified to by Ms Msibi during the criminal trial, (and at the hearing of this application) could apply of amnesty and still deny his direct participation but admit to the planning of he offence, when it would have been quite simple to admit his participation knowing fully well that it would be supported by Ms Msibi’s version as given at the criminal trial.
Accordingly, the Committee is of the view that the first applicant has satisfied the requirements of the Act and that the offences of which he seeks amnesty are acts associated with a political objective as defined in Section 20 (1) of the Act.
Amnesty is hereby GRANTED to the first applicant for the following offences:
murder of Thomas Tshwari
attempted murder of 41 persons,
unlawful possession of 2 x RG 42 handgrenade explosives, and
unlawful possession of explosive material (3 x petrol bombs)
Amnesty is hereby REFUSED to the second applicant in respect of the following offences:
murder of Thomas Tshwari,
attempted murder of 41 persons,
unlawful possession of 2 x RG 42 handgrenade explosives, and
unlawful possession of explosive material (3 x petrol bombs)
This Committee is of the opinion that the next of kin of the deceased had 41 persons referred to in (ii) are victims in terms of Section 26 of the Act and recommends that they be referred to the committee on Reparation and Rehabilitation for consideration.
Signed on the 21 day of September 1999.
JUDGE S KHAMPEPE
ADV F BOSMAN
MR I LAX
