DECISION
______________________________________________________The Applicant is seeking amnesty for the murder of Nyani Xolo ("the deceased") which crime was committed on the 26 October 1990 at Thelawayeka Ward, Paddock, in the region of KwaZulu-Natal ("KZN"). At the relevant time the KZN region was engulfed in violent conflict between the supporters of the ANC and IFP. He was a resident at Paddock where he was actively involved in student affairs under the banner of the Congress of South African Students ("COSAS").
The Applicant was the only witness to testify in support of his application and although the father of the deceased was present at the hearing, he did not want to testify. He said for some time now he had been trying to forget and accept the tragic death of his son. Giving evidence in the matter would frustrate his endeavours in that direction. However, he put his own version of the events through the legal representative, Mr Panday. Briefly, he denied that the deceased was a member of a criminal gang as alleged by the Applicant.
The Applicant testified that at the time they were having clashes with IFP members and gangsters who harassed and terrorised ANC supporters. They believed that the police were acting in cohorts with their adversaries. They had received this information from confidential sources within the police force. At that stage the deceased was still working in the mines but when he returned he joined the gangsters.
A meeting was held by ANC comrades to discuss the problem. The Applicant chaired the meeting and it was resolved that the deceased and his compatriots should be killed because they were making life unbearable for ANC supporters. They were also making it difficult for the Applicant and other ANC supporters to mobilise for support in the area. The Applicant says he joined the operation because he, as chairperson of the meeting, wanted to ensure that the order would be carried out. The deceased was going to be lured and killed.
On the day in question one comrade Don Gumede came to see the Applicant. At that stage Gumede had already suggested to the deceased that they go out for a drink. Gumede was going to fetch him. When Gumede came to the Applicant and told him that he had spoken with the deceased, the Applicant suggested to him that they involve one Thulani, also an ANC supporter. Then, as already planned, Gumede went to fetch the deceased at his home. They proceeded to the place where they were going to partake of liquor together. Whilst they were walking together the Applicant and Thulani followed them, the latter two both armed. The Applicant had a panga in his possession. At a certain point they attacked the deceased and killed him.
It appears from a copy of the criminal court judgment on sentence that the Applicant gave the same account as presently testified to. He was convicted and sentenced to long term imprisonment, which he has now served. His legal representation was arranged by the Port Shepstone ANC Branch. At the hearing a letter from Silochini Pillay and Associates was handed up. It confirms that the firm obtained instructions from the said ANC branch to represent the application at the trial.
After considering the matter we are satisfied that the Applicant has complied with the requirements of the Act. He has shown that the matter is "an act associated with a political objective" in terms of the Act and further appears to have given a full disclosure of the relevant facts. His application therefore succeeds and he is accordingly GRANTED amnesty for the murder of the deceased.
The dependants of the deceased are hereby being referred to the Reparations and Rehabilitation Committee to be declared victims in terms of the Act.
DATED at CAPE TOWN this day of 2000
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JUDGE A WILSON
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A/ J D POTGIETER S.C.
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ADV NTSIKI SANDI
