CHAIRPERSON: Good morning to you all. This is a sitting of the Amnesty Committee, sitting in Nelspruit on the 8th of December 1999. The matter that we are going to proceed with this afternoon, is the application of Mondli Wiseman Ngxongo. Before proceeding with this matter, may I take the opportunity of introducing the panel. I am Judge Sisi Khampepe, on my right hand side is Adv Francis Bosman, on my left-hand side, Mr Ilan Lax. This is the panel that will be sitting here this afternoon, to hear the application of Mr Ngxongo amongst the other matters that we will be sitting to consider. Mr Oosthuizen?
MR OOSTHUIZEN: Good morning, Madam Chair, yes, my name is Mr Oosthuizen, I am a local Attorney from Nelspruit, from the firm du Toit Smuts Attorneys, and I will be responsible for presenting the argument on behalf of Mr Ngxongo.
CHAIRPERSON: For the victims?
MR MOKOENA: Thank you Mr Chairperson, I am (indistinct) Mokoena from (indistinct), I am appearing on behalf of the victims.
CHAIRPERSON: Ms Mtanga?
MS MTANGA: Thank you Chairperson, I am Lulama Mtanga, the Evidence Leader for the Commission, thank you.
CHAIRPERSON: Yes, Mr Oosthuizen?
MR OOSTHUIZEN IN ARGUMENT: Thank you Madam Chair, if I may proceed.
Madam Chair, as we all know, one of the purposes of the Act is to grant amnesty to persons who make full disclosure of the relevant acts associated with political objectives, the said act should have been committed in the course of conflicts of the past. Now, the applicant in this matter, Mr Mondli Wiseman Ngxongo did comply with the requirements of the Act, to be more specific Act 34 of 1995 as amended in the following ways, and I wish to state it in the following order: first of all his application was submitted timeously, that is within the cut off date as stated by the Act, further on Madam Chair, the applicant gave viva voce testimony regarding his political grooming and background. This background is IFP indoctrination, in outlook and in essence. The applicant maintained throughout his testimony that he was an active IFP member as well as a member of the so-called hit-squad as they were known, under the leadership of the late Mr Mbuyani and the late Mr Mbambu. It is against this background Madam Chair, that the applicant's application should be viewed.
Further on the applicant testified and disclosed all the planning and the said planning was narrated step by step until the final assassination of the deceased, Mr Tiledi and others who might have been injured in this incident and specifically the cross-fire. The applicant further made mention of the role played by his co-applicant, Mr Mbuso Romeo Mbambu. It is also worth noting that the evidence of the applicant is on all material respects, the same. I refer to the evidence of Mr Mbambu which is contained in pages 9 to 41 from the testimony read in conjunction with that of Mr Mbambu, Madam Chair, it is my submission that the killing of Mr Tiledi was indeed politically motivated. The applicant further disclosed all the facts surrounding the killings of Mr Tiledi.
In this respect I refer to the viva voce evidence of Mr Ngxongo, which left no stone unturned. Madam Chair, the applicant further made mention of certain persons who was part of the plan, or at least were associated with this activity. A lot of names were mentioned and amongst those names were that of Capt Hlengwa, Mrs Mbuyasi and the aforementioned persons who were all implicated during the course of these proceedings. The plan was to thwart the ANC from smuggling AK47s across the border, these weapons were used to kill certain members of the IFP and this has been the testimony of the applicant herein. It is further submitted Madam Chair, that there has been a full disclosure of what has happened there. The persons implicated were subpoenaed to appear before the TRC, if they choose to ignore the TRC, they do so at their own peril and at their own risk. The applicant needless to state, was in the company of his co-applicant Mr Mbambu who was also his co-accused in the criminal trial and the co-applicant in this matter, as I have stated. Madam Chair, in the criminal trail, the applicant in this matter, pleaded guilty and in these proceedings, he also left no stone unturned and we are made to believe that Mr Mbambu indeed was granted amnesty. Madam Chair, I wish to conclude and it is my submission that the acts of Mr Ngxongo was indeed an act associated with a political objective and if I can quote Section 2 of Act 34 of 1995, (2) of Section 20, Madam Chair, I quote -
"... an act associated with a political objective means any act or omission which constitutes an offence or delict which according to the criteria in (3) is associated with a political objective and which was advised, planned, directed, commanded or committed within or outside the Republic, during the period 1 March 1960 to the cut off date".
Madam Chair, it is my submission that amnesty should be granted to the applicant, it is my submission that he came out with the truth and he asks for forgiveness and it is our humble request that amnesty be granted to my client. Thank you.
CHAIRPERSON: You have referred to Section 20(2) of the founding Act, in terms of which pertinent provisions within Section 20(2) from subsection (a) to (f) does your client seek particular reliance?
MR OOSTHUIZEN: Thank you Madam Chair. It is in terms of Section 20(2)(a) and I wish to state what (a) says
"... any member of supporter of a publicly known political organisation or liberation movement, on behalf of or in support of such organisation or movement bona fide in furtherance of a political struggle, by such organisation or movement against the State or any former State or other publicly known political organisation or liberation movement."
CHAIRPERSON: Yes.
MR OOSTHUIZEN: It is in other words Madam Chair, subsection (2)(a).
CHAIRPERSON: And what is your submission with regard to Section 20(3)(e)?
MR OOSTHUIZEN: (3)(e), Madam Chair.
CHAIRPERSON: Yes, Section 20(3)(e)? Is it not your contention that he was acting under the orders of Mrs Mbuyasi if I recall the evidence?
MR OOSTHUIZEN: Madam Chair, that is indeed so. In my initial argument I indeed stated that my client acted under strict orders and it is indeed so that subsection (3)(e) states whether the act, omission or offence was committed in the execution of an order or on behalf ...
CHAIRPERSON: You don't have to read, we are familiar with the subsection.
MR OOSTHUIZEN: It is indeed so that my client did act within or yes, within the course of a direct order that he received from senior members of the IFP.
CHAIRPERSON: What particular offences are you therefore submitting that he should be granted amnesty for? It is the murder of Mr Tiledi, what about the attempted murder of Boy Mokoena and Mimi Matsani, Boy Mokoena and Mimi Matsani?
MR OOSTHUIZEN: Madam Chair, our request today is to grant amnesty to the applicant on all the relevant charges, as it is my submission that this act was all political motivated, it was all in fulfilment of an order that he received from the IFP senior members and it is indeed my request and submission that amnesty should also be granted on the attempted murder charges, the murder charges and all the relevant charges that is associated with this tragic incident that happened.
CHAIRPERSON: Would it be your submission therefore that though the order was for the killing of Mr Tiledi, that your client should have foreseen the possible injury or even death of the people who were inside the shop, that being Mimi Matsani and Boy Mokoena?
MR OOSTHUIZEN: Madam Chair, yes. That is indeed a question that came up during the criminal trial as well, and I think we are now looking at the aspect of negligence and intention. It is my respectful submission Madam Chair, that when this act was committed, there was not much time for my client as he had a job to do, he had certain orders that was given to him, and he as a faithful member of the IFP ...
CHAIRPERSON: But my question is, is it your submission that they should have foreseen the possible injury or possible deaths of other people inside the shop, yes or no?
MR LAX: If I may just put it subtly differently, did your client foresee it in shooting in those instances, did he foresee that other people would be harmed and then was he reckless as to those consequences?
MR OOSTHUIZEN: Madam Chair, yes, I think if I can put it, if I can put it in this way, indeed my client must have foreseen that other people was in the shop, other people could have got hurt and indeed so, the argument of the Honourable Panel is indeed correct if they say that my client should have foreseen.
CHAIRPERSON: That is not what we are saying, we want to find out from you if that will be your submission or if that is your submission.
MR OOSTHUIZEN: That is indeed so, Madam Chair.
CHAIRPERSON: Thank you.
ADV BOSMAN: Sorry, Mr Oosthuizen, if you could just enlighten me here, the firearm which was used in the killing of Mr Tiledi, was that a lawful firearm, was it in lawful possession of your client?
MR OOSTHUIZEN: Honourable Member of the Panel, the firearms were gained from, if I am not mistaken, from ...
CHAIRPERSON: From Mr Mbambu?
MR OOSTHUIZEN: From Mr Mbambu indeed, who gained it from the IFP Headquarters in Ulundi, and that firearm was used when committing the said act.
ADV BOSMAN: Was it in lawful possession of the IFP, or was it an unlawfully possessed firearm?
MR OOSTHUIZEN: Honourable Member, as far as I can remember with reference to the previous hearings, I think the firearms were the lawful possession of the IFP Headquarters. Maybe not, it is so that the applicant was maybe not a lawful licence holder but I think the firearms belonged to IFP members. I am talking ...
CHAIRPERSON: You are speaking under correction because they did not possess any lawful firearms, that is the IFP? There was a consignment of firearms that were used by the hit-squad not only in respect of this incident, but in respect of other incidents, which were unlawful.
MR OOSTHUIZEN: Madam Chair, I will go with that. As I am saying, I am speaking under correction, I cannot deny that.
ADV BOSMAN: Your client is also applying for amnesty in regard to the unlawful possession of firearms, is it?
MR OOSTHUIZEN: That is indeed so, Honourable Member.
CHAIRPERSON: Can you just, Mr Oosthuizen, refresh our memory, what particular firearm was used in this case?
MR OOSTHUIZEN: Madam Chair, with permission, may I just get instructions from the applicant?
MS MTANGA: Chairperson, if I may be of assistance, on page 49 of the record, it is indicated there that Mr Mbambu had a 9mm Z88 and Mr Ngxongo had a 9mm Baretta.
MR OOSTHUIZEN: Madam Chair, that is indeed the instructions that I just got from my client as well.
CHAIRPERSON: Mr Mokoena, can we press at the same time, so that we can maintain the same sequence of communication. Do you have any submissions to make on behalf of the victims?
MR MOKOENA: Madam Chair, I don't have any submissions to make.
CHAIRPERSON: Do you leave the matter in the hands of the Committee?
MR MOKOENA: That is correct Madam Chair, that is my instructions that I leave the matter in the hands of the Committee.
CHAIRPERSON: Thank you Mr Mokoena. Ms Mtanga?
MS MTANGA: Chairperson, my position is the same as that of the lawyer for the applicant, I would like to leave this matter in your hands.
NO SUBMISSIONS BY MS MTANGA
CHAIRPERSON: Thank you.
F I N D I N G
CHAIRPERSON: The application by Mr Mondli Wiseman Ngxongo is the application which is as a result of an incident which involved one Mr Romeo Mbambu, whose application in respect of the same incident, was heard in Ermelo under the so-called Caprivi Hearings. The decision in respect of Mr Mbambu's application has already been given by the Panel which sat and presided over that application. The Panel that sat in respect of Mr Mbambu's application have reserved its reasons with regard to the offences for which Mr Mbambu sought amnesty for the killing of Mr Japie Tiledi.
For purposes of consistency, this Panel shall similarly not advance its reasons until that Panel has furnished its reasons in respect of the same incident. We are however, in terms of the Act permitted to give our decision without having to advance such reasons, and we shall now proceed to do so.
This is the decision of this Panel sitting in respect of the application moved by Mr Ngxongo, our decision is as follows: amnesty is hereby GRANTED to Mr Ngxongo in respect of the following offences:
(1) the murder of Mr Japie Tiledi at Bushbuckridge, committed on or about April 1993,
(2) the attempted murder of Mimi Matsani and Boy Mokoena also committed at Bushbuckridge on or about April 1993 and thirdly the unlawful supply and possession of firearm and ammunition, in contravention of the provisions of Act 75 of 1969, during April 1993. The same being used in the commission of the offences for which amnesty has been sought and granted by and to Mr Ngxongo. That is our decision. We thank you Mr Oosthuizen, Mr Mokoena and Ms Mtanga for having assisted us to reach a just and quick decision in respect of Mr Ngxongo's application, thank you. You may be excused.
MR OOSTHUIZEN: Thank you Madam Chair.
