DECISION
This is an application 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 various offences for which the Applicant was convicted in the Witwatersrand Local Division of the then Supreme Court during 1993 and sentenced to an effective 26 years imprisonment. The specific incidents will be set out in more detail later. The application was opposed by the next-of-kin of one of the deceased victims, namely Benedict Modikwa. Apart from the evidence of the Applicants, the testimony of Alla Madsidiso Mtjali, the sister of the late Benedict Modikwa, was presented in opposition to the application. The specific incidents will now be set out in more detail.
KILLING OF HUMPHREY KHUMALO
This incident occurred at Vosloorus on 1 January 1993. According to the uncontested version of the Applicant, he was a card carrying member of the African National Congress ("ANC") in Vosloorus. He was also a member of the Self-Defence Units ("SDU") in Vosloorus since 1992. The first commander of his SDU, George Skamora Machel was killed on 7 July 1992 whereafter Mr Makhubele was appointed as commander. Vosloorus was experiencing a violent political conflict between the ANC and the Inkatha Freedom party ("IFP") at the time. There were different sections of the township that were dominated by the respective groups. It was impossible for a member of the opposition group to enter areas which were dominated by the other group.
Humphrey Khumalo ("the deceased") was a member of the IFP Youth Brigade. He was accordingly a political opponent of the Applicant. Prior to the day of the incident, there were tensions between a group of IFP Youth Brigade members including the deceased and a group of ANC supporters including the Applicant. Although the two groups engaged in a quarrel, no physical fighting had erupted on that occasion. On the day of the incident, namely 1 January 1993, Applicant and a few other ANC members were on their way to the home of their SDU commander, Mr Makhubele. They were forced to move along Dubazana Street near the Zulu hostel in an area that was an IFP stronghold. Along the road they came across the deceased in the company of some IFP Youth Brigade members. The deceased confronted the Applicant and greeted the latter in a derogatory manner. Applicant realised that the deceased's group was preparing to launch an attack upon them. As the deceased was taking to him the rest of the members of the IFP Youth Brigade group took out knives and the deceased reached for his waist. Applicant was convinced that the deceased was reaching for a firearm and he immediately took out his own 3.65mm pistol and fired one shot at the deceased wounding him in the chest. The deceased continued to advance towards the Applicant who fired a second shot whereafter the deceased kneeled down in the road. The Applicant and his group got an opportunity to escape from the scene and they managed to flee to safety.
Applicant indicated that the incident formed part of the ongoing situation of political violence between the ANC and the IFP in Vosloorus at the time.
Having considered the matter, we are satisfied that the Applicant has made a full disclosure of all relevant facts and that the incident constitutes an act associated with a political objective as envisaged in the Act. In the circumstances, amnesty is hereby GRANTED to the Applicant in respect of:
1. The killing of Humphrey Khumalo on or about 1 January 1993 at or near Vosloorus, Gauteng;
2. unlawful possession of a 3.65mm pistol and ammunition.
KILLING OF SIPHIWE MAPUTE AND THE ATTEMPTED MURDER OF ABRAHAM WALTER MAGAMA NDO
This incident happened in Vosloorus on 2 February 1993. At the time of the incident, Applicant was in the section of the township known as Angola and was accompanying his girlfriend home. It was approximately 22H00 when they passed a liquor outlet and he noticed two persons appearing from the dark. One of them uttered words to the effect that Applicant was the person they were looking for. He immediately heard a gun being cocked followed by gunshots. Applicant realised that he was under attack and concluded that the attackers were members of the IFP who had been threatening to kill him for some time. Applicant was a well-known ANC comrade in the township who was always leading ANC activities. This resulted in him being on the IFP hit list.
Applicant, who was always armed, took out his firearm and fired on shot before running away. He could hear that the shot struck something but he was not sure whether he had in fact wounded one of the attackers. He subsequently discovered that he had shot and killed on of the attackers, namely Siphiwe Zakariah Mapute. Both persons were completely unknown to Applicant. He was subsequently charged with the murder of Siphiwe Zakariah Mapute and the attempted murder of the latter's companion, Abraham Walter Magama Ndo.
Having considered the matter, we are satisfied that the incident resulted directly from the political conflict in Vosloorus at the time between ANC and the IFP. Applicant's version was uncontroverted and we are satisfied that he made a full disclosure of all relevant facts and that the application complies with all of the other requirements of the Act. In the circumstances amnesty is hereby GRANTED to the Applicant in respect of the following offences which were committed on 2 February 1993 at Vosloorus:
1. The murder of Siphiwe Zakariah Mapute;
2. the attempted murder of Abraham Walter Magama Ndo;
3. Unlawful possession of a 3.65mm pistol and ammunition.
THE KILLING OF BENEDICT MODIKWA
This incident occurred on 8 March 1993 at Mogako Street, Vosloorus. According to the version of the Applicant, he was given an order by the SDU commander, Mr Makhubele, on 7 march 1993 to eliminate Benedict Modikwa ("the deceased") because he co-operated with the IFP hit squad and was a police informer. Applicant was given a 9mm Parabellum pistol and 8 rounds of 9mm ammunition for the purposes of the operation. The deceased lived a few houses away from the Applicant in the same street. Applicant proceeded to execute the order but was unable to locate the deceased on 7 March. He returned the following day and awaited the arrival of the deceased who was expected to come home in the late afternoon. Just after 4.30 in the afternoon the deceased arrived home. After a while the Applicant noticed the deceased standing at the gate. he walked up to the deceased and fired numerous shots at him with the 9mm Parabellum pistol. After the deceased fell to the ground Applicant ran away but was seen by the mother of the deceased. Applicant then reported to Mr Makhubele and handed back the firearm to him.
According to the Applicant, the deceased participated in the killing of ANC comrades and he was part of the group that killed the former SDU commander, George Skarmora Machel. The deceased was accordingly a political opponent of the ANC in the township at the time.
The evidence of Ms Mtjali, the sister of the deceased, did not contribute materially to the merits of the incident. She basically indicated that the deceased was not involved in politics and that he was wrongly accused by members of the community in Vosloorus of being an informer. She confirmed that the deceased had contact with Sidwell Mofokeng, a community councillor who was the deceased's brother-in-law. She conceded that the community was opposed at the time to community councillors and that the deceased's relationship with Sidwell Mofokeng fuelled the belief (which in her view was mistaken) that he was an informer.
Having considered the matter, we are satisfied that the Applicant has made a full disclosure of all relevant facts and that the incident arose from the political conflict at the time between ANC and the IFP in Vosloorus. We are also satisfied that the Applicant acted bona fide in the execution of an order from his SDU commander to eliminate the deceased who was regarded on reasonable grounds to be a political enemy. In the circumstances the incident constitutes an act associated with a political objective as envisaged in the Act and amnesty is accordingly hereby GRANTED to the Applicant in respect of:
1. The killing of Benedict Modikwa on or about 8 March 1993 at or near Mogako Street, Vosloorus;
2. unlawful possession of a 9mm Parabellum pistol and ammunition.
In our opinion the victims and the next-of-kin of the deceased in respect of the incidents for which amnesty is hereby granted are victims and are accordingly referred for consideration in terms of Section 22 of the Act.
DATED AT CAPE TOWN THIS DAY OF 2001.
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Judge DENZIL POTGIETER
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Mr I. LAX
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Mr J.B. SIBANYONI
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