ON RESUMPTION
CHAIRPERSON: Mr Sonkalane Moses Mabena, it is application AM7760/97. The applicant is represented by Mr Shein. Are there any formalities that we have to deal with or can we proceed and take the testimony?
MR SHEIN: There is no formalities Mr Chairman, save to say that I am Lawley Shein, Attorney from Johannesburg, representing the applicant and the applicant can be sworn in, thank you sir.
CHAIRPERSON: Thank you very much.
ADV STEENKAMP: Mr Chairman, may I be so rude, I am sorry, I apologise, Mr Chairman, there is the question of the Section 19(4) notices.
Because this application did not form part of the original hearing material, I think I have to inform you that one of the interested parties, if you can call him that, Mr Van Zyl, at the time was a Sergeant, his statement does appear in the bundle, I think he was a complainant in this matter if I am not mistaken, we did manage to get hold of Mr Van Zyl, he informed me that he has no objection for the application of Mr Mabena, and he is not prepared at this stage to either testify or oppose the application as it stands.
Furthermore, as far as we could establish Mr Chairman, there was no human rights violations, well, no victims were present at this incident at all, so as far as we are concerned Mr Chairman, the requirement of Section 19(4) was then met, thank you Mr Chairman.
CHAIRPERSON: Thank you Adv Steenkamp. To the extent that it is necessary to do so, the Act vests a discretion in the Committee to decide whether or not to hear matters which don't concern a gross violation of human rights, at a public hearing or not.
In the particular circumstances of this matter, Adv Steenkamp has indicated that as things stand at this stage, there does not appear to have been any gross violation of human rights in this incident, but in all the circumstances, we are satisfied that we ought to exercise our discretion to deal with this matter at this session, and to dispose of it as promptly as possible, given the fact that the applicant appears to be serving a sentence of imprisonment, arising from the subject matter of this amnesty application.
Under those circumstances, we are proceeding to hear the matter at this public hearing. Mr Mabena, won't you please rise and then give your full names for the record? Can you give us your full names?
MR MABENA: Sonkalane Moses Mabena.
SONKALANE MOSES MABENA: (sworn states)
CHAIRPERSON: Thank you. Please sit down. Mr Shein?
EXAMINATION BY MR SHEIN: Thank you Mr Chairman. Mr Mabena, you are making application for amnesty for the following, that is for attempted murder, the unlawful possession of a firearm and ammunition, is that correct?
MR MABENA: That is correct.
MR SHEIN: Furthermore, Mr Mabena you were tried and found guilty on a charge of attempted murder. The complainant in that particular case was a Sergeant at the time, Jan van Zyl, and also you were convicted of the unlawful possession of a firearm and ammunition, is that correct?
MR MABENA: Yes, that is correct.
MR SHEIN: You were sentenced as follows, according to your instructions, you were sentenced to five years for the charge of attempted murder, two years imprisonment for the possession of the unlicensed firearm and one year imprisonment for the ammunition. You are serving a total of eight years at the Modabi prison.
MR MABENA: Yes, that is correct.
MR SHEIN: Just to add further background, you did appeal against your conviction. The appeal was not successful and you have been serving your sentence since March last year?
MR MABENA: That is correct.
MR SHEIN: Dealing with the incident as such, is it correct that you were a member of the ANC as well as the Self Defence Unit?
MR MABENA: Yes, that is correct.
MR SHEIN: Now, can you just briefly, at the time, in the early 1990's, you agree that there was great political tension, political violence and as a member of the ANC, you regarded members of the IFP as being your political enemies?
MR MABENA: That is correct.
MR SHEIN: Will you tell this Committee also what your attitude was at the time, to members of the South African Police?
MR MABENA: They were not able to set us apart, instead, they were taking sides, siding with the IFP members, so that our community found ourselves, or found itself in a difficult position, and each time we went to the police to appeal for help or complain, they did not seem to be sympathetic. They would pretend to be sympathetic, but later, do nothing about that.
I later on decided to join the SDU's seeing that the police were not being helpful.
MR SHEIN: As a result of what you have said, would you say that the community and yourself, also regarded the police at the time, as your enemy?
MR MABENA: That is correct.
MR SHEIN: In your own words, could you please relate to this Committee the incident that occurred on the 5th of November 1992?
MR MABENA: On the 5th of November 1992, I was with my colleagues, patrolling in the township. We normally used to have our bases where we would leave certain people behind, who would take care of the situation in our absence, such as in attacks.
I happened to receive a phone call from Mr Mgoni, to the effect that the Emasimini base had been attacked, and our members injured.
CHAIRPERSON: Mr Mabena, just a minute, I am just trying to take down the information that you are giving. You are saying that you received a telephone call, from whom did you receive that call?
MR MABENA: It was Mr Mgoni, Sam Mgoni.
CHAIRPERSON: And what did Mr Mgoni tell you?
MR MABENA: He told me that our members had been attacked by members of the IFP.
CHAIRPERSON: You say that your members, which members are you referring to?
MR MABENA: I am referring to members of the SDU.
CHAIRPERSON: Which particular SDU was that?
MR MABENA: It is the kwaThema branch of the SDU.
CHAIRPERSON: Thank you. So you received this telephone call, what then happened?
MR MABENA: I rushed to the scene and on arrival indeed, our members were injured. I had to rush them to hospital to Polisong, that is the Polisong Hospital in Tsakani.
I think the time was about roundabout seven o'clock or thereabouts, I took them to hospital and I waited for them, to make sure that they were given attention.
CHAIRPERSON: Was this seven in the evening, or seven in the morning?
MR MABENA: It was in the evening. On arrival at the hospital, I waited for them, to make sure that they were attended to and soon thereafter I left. I think I spent quite a while at the hospital, I left the hospital at about twenty to eleven.
I was in the company of other two of our members, Daniel Randla is one of them, as well as Debugo Mudle. On my way back from the hospital, I dropped these two members at Vergenoeg, one of our Sections, it is also known as Pelindaba.
On my way home, I noticed a car that was tailing me with its headlamps off. I tried to speed up and it followed closer. I wanted to make sure, satisfy myself that this car was tailing me. I took a corner, I took the Gelitsani Road and indeed, the car pursued me.
I stopped the vehicle at the corner of Gatswana and Gelitsani and I went to a certain house and on entering the premises of the house, I started shooting towards the vehicle that was pursuing me.
When I looked behind me, I realised that there was no escape. That is when I realised that the people whom I was shooting at, were police. As a result of my being cornered, I handed myself over, because they could have easily killed me. I handed myself over.
MR SHEIN: Mr Mabena, is it correct that when you fired the shot, your life as such, was not in danger from anybody?
MR MABENA: That is correct.
MR SHEIN: Do you concede that by firing a shot, the way you did, you in fact did commit the crime of attempted murder because the purpose was to try and kill someone?
MR MABENA: Yes, that is correct.
MR SHEIN: Even though you felt threatened by Inkatha, you were of the opinion that there were people following you from Inkatha who were intent on killing you. Even though you considered the police to be your enemy, is it correct that this, these particular police in the vehicle that was following you without lights, they themselves were as such no threat t your life or to your safety?
MR MABENA: In so far as we knew, the police were our enemy as well. They too were within the same bunch of our enemies.
MR SHEIN: All right, but from the actual members of the police that were pursuing you, was there actually any attempt made by them against you, either to shoot you or to harm you in anyway? Had there been any attempt, besides them following you?
MR MABENA: The speed at which they were tailing me, put me in a very difficult position. I thought they were coming to attack me.
MR SHEIN: But it was later, you were satisfied that those thoughts that you had, were not correct?
MR MABENA: Yes, that is correct. I ended up submitting this application for amnesty.
MR SHEIN: We have already heard that the complainant in your case, Inspector Jan van Zyl, does not wish to oppose your application for amnesty. Is there anything which you would like to say to Jan van Zyl, even though you did not actually harm him because your shot at him did not harm him?
MR MABENA: I would like to profusely apologise to him. It was because of the circumstances in which we lived.
MR SHEIN: Is there anything further that you wish to add to this?
MR MABENA: No, I think that suffices.
MR SHEIN: That is the evidence in chief of this applicant, Mr Chairman.
NO FURTHER QUESTIONS BY MR SHEIN
CHAIRPERSON: Thank you Mr Shein. Mr Mabena, what kind of firearm did you have in your possession?
MR MABENA: I had two firearms actually. I had a Z88 and a revolver, a 357.
CHAIRPERSON: Were those firearms the property of the Self Defence Unit?
MR MABENA: One of these firearms was mine, and the other one, was supposed to have been given to one of our members, because that one was illegal. I had a legal firearm that belonged to me.
CHAIRPERSON: Which one was your legal firearm of those two?
MR MABENA: It was the revolver, the 357 revolver.
CHAIRPERSON: Were you charged for having possessed the Z88 without a licence?
MR MABENA: Yes, that is correct.
CHAIRPERSON: And was there ammunition in that Z88 as well that you possessed?
MR MABENA: That is correct.
CHAIRPERSON: If I understand you correctly, you say you possessed the Z88 and the ammunition in connection with the Self Defence Unit activities?
MR MABENA: Yes, that is correct.
CHAIRPERSON: The vehicle that was behind you, was it an ordinary vehicle, it was not a police van or a vehicle with a blue light on that identified it as a police vehicle?
MR MABENA: No, it was an ordinary vehicle.
CHAIRPERSON: All right, thank you. Any questions Adv Steenkamp?
ADV STEENKAMP: No questions, thank you Mr Chairman.
NO CROSS-EXAMINATION BY ADV STEENKAMP
CHAIRPERSON: Questions by the panel?
ADV SANDI: Yes, just one. Mr Mabena, when you saw this vehicle following you, who did you think was following you?
MR MABENA: I thought I was being pursued or followed by members of the IFP.
ADV SANDI: When you opened fire on these people, which direction did you fire in?
MR MABENA: I shot towards the enemies.
ADV SANDI: Thank you. Thank you Chair.
ADV GCABASHE: And did they fire back at any stage before they arrested you?
MR MABENA: No, they didn't.
ADV GCABASHE: Thank you Mr Mabena, thank you Chair.
CHAIRPERSON: Thank you very much. Mr Shein, any re-examination?
MR SHEIN: I have no re-examination, thank you Mr Chairman.
NO RE-EXAMINATION BY MR SHEIN
CHAIRPERSON: Any submissions on the merits, Mr Shein?
MR SHEIN IN ARGUMENT: Mr Chairman, I would submit that very significant in this application, is the fact that the so-called victim or complainant, Jan van Zyl, a member of the police, has chosen, he says he does not oppose, he will not attend this hearing to oppose and I submit in those circumstances, this Commission should regard that if a member of the police does decide to do that, then I would ask this Commission to regard that action as an approval of his application for amnesty.
It is more, I submit with the greatest respect, than just a passive not going to take part in the proceedings, which might be suggested. If a member of the police decides to embark on that, it should be clear that he in fact agrees that the applicant before you, should be granted amnesty.
I will further submit that the actions or the action, the actual attempt to shoot at his pursuer, quite clearly, he was correctly convicted. It is clearly attempted murder on the part of the applicant, but that action is coupled with, it is a political action, it is fully in accordance with the provisions of the Promotion of National Unity and Reconciliation Act, it is clearly I submit associated with a political objective, and I submit with the greatest respect, that the applicant has made full disclosure of it.
We already mentioned the significance of the complainant's attitude and I submit that because the applicant is serving a sentence for this offence, that he should be granted amnesty as soon as possible. I have nothing further to add sir.
CHAIRPERSON: Thank you. Any submissions Adv Steenkamp?
ADV STEENKAMP IN ARGUMENT: Mr Chairman, I am informed by the Investigation Unit, that the facts that was submitted by the applicant, is consistent with the findings of the Investigation Unit, thank you Mr Chairman.
CHAIRPERSON: We will take a brief adjournment.
COMMISSION ADJOURNS
F I N D I N G
SONKALANE MOSES MABENA : AM7760/97
CHAIRPERSON: The following is the decision of the Committee in respect of the application of Sonkalane Moses Mabena
The applicant is Sonkalane Moses Mabena, who is presently serving a sentence of an effective seven years' imprisonment, in the Modabi prison in respect of an incident which happened on the 5th of November 1992, which has been described more fully in the applicant's testimony before us today and to which reference is made in the papers before us, relating to the amnesty application.
Apart from the amnesty application form, we have also been furnished with relevant extracts from the police docket in respect of this matter, which amongst other things, contains the statement of one Sergeant Jan Albert van Zyl, who was a member of the then South African Police.
The incident in question happened in kwaThema and the circumstances surrounding the particular incident, are common cause between both Mr Van Zyl, who was the applicant in a criminal trial that resulted from the incident, as well as the applicant.
Very briefly, on the day in question, at approximately 19H00 the applicant was contacted telephonically by Mr Sam Mgoni, who informed him that members of his Self Defence Unit, kwaThema of which the applicant is also a member, have been attacked by members or supporters of the Inkatha Freedom Party.
The applicant rushed to the scene of the incident, where he discovered that some of these fellow members of the Self Defence Unit, have in fact been injured as reported to him, and he assisted in having them hospitalised and assisted in getting medical treatment for their injuries.
Applicant indicated that he had spent a considerable period of time at the hospital, where the injured were being attended to. And he left the hospital later that evening, at approximately 22H40. On his way home, together with two other members of the Self Defence Unit, whom he had dropped on his way, as he was travelling home, after having dropped off the persons who had been riding with him, he noticed that a private vehicle without headlights or the headlights not switched on, was following him at a considerable speed, which alarmed him, and led him to the belief that he was being pursued by members of the Inkatha Freedom Party, who were about to launch an attack on him.
After having in fact, satisfied himself that the vehicle was in fact following him, he stopped his own vehicle, got out, entered a nearby premises and fired a shot at the attackers.
He realised at some subsequent stage that the people in the vehicle that had been following him, were in fact members of the police, and given the fact that he was cornered, he handed himself over and he was arrested.
Pursuant to this incident, the applicant was charged with one count of attempted murder in respect of which Sergeant Van Zyl was the complainant, as well as with one count of the unlawful possession of a firearm, in this instance, a Z88 pistol, as well as the unlawful possession of ammunition, intended to be fired from the Z88 pistol.
The applicant was convicted as charged, and he was given the effective eight years' imprisonment that I have referred to earlier.
In fact, according to the papers before us, he has been sentenced to what appears on the face of it, to be a heavy sentence of seven years' imprisonment in respect of the attempted murder count, two years' imprisonment in respect of the unlawful possession of the Z88 pistol and six months' imprisonment in respect of the unlawful possession of ammunition.
One year, it appears, of the sentence in respect of the firearm and ammunition, was added to the sentence in respect of the attempted murder count, the remainder of the sentence in respect of these two counts, running concurrently with the sentence on the attempted murder, resulting in the eight years' effective imprisonment.
What could be regarded as the possible victim or interested party in this application, Sergeant Van Zyl, was contacted and notified of this application, and the fact that it was being heard by this panel. It was placed on record by Adv Steenkamp who appears as the Leader of Evidence at these proceedings, that Sergeant Van Zyl has effectively indicated that he has no wish to attend these proceedings, to testify or in fact to oppose the applicant's application for amnesty in this matter.
As I have indicated in any event, it appears quite abundantly that there is no real material factual dispute between the versions of Sergeant Van Zyl or the applicant in respect of the particular incident.
It is also clear that this incident happened at a stage when the particular area where all this happened, was gripped in very severe and intense violence and a political conflict which involved members or supporters of the African National Congress and members or supporters of the Inkatha Freedom Party.
This panel has been in session for the past approximately two and a half weeks, and have been hearing applications from various people who had been somehow or the other, engaged in this particular conflict and has through that testimony been given an indication of the extent and the destruction and havoc that was reeked in the area in question, by this conflict.
We are satisfied on the evidence and on the material that has been placed before us, that the incident in question arose entirely within the context of that political conflict. It is quite clear on the evidence that the possession of the Z88 pistol and the ammunition were directly linked to the activities of the kwaThema Self Defence Unit, and it was possessed by the applicant as a member of that Self Defence Unit, for use for the purposes and the objectives of the Self Defence Unit.
The shooting incident itself, is clearly directly linked to the prevailing situation of political conflict. The applicant having reasonably believed under the circumstances, where not so long before he was followed by this particular vehicle, members of this Self Defence Unit were attacked and injured by, on the information, members or supporters of the IFP, it is quite clear that the applicant under those circumstances, reasonably believed that he was about to be subjected to a similar attack by the same opposing forces.
We are accordingly satisfied in all the circumstances and having considered the evidence that was presented to us as well as the application and the documentary material, that the applicant should be granted amnesty as applied in respect of the counts for which he was convicted, namely attempted murder, the unlawful possession of a firearm and the unlawful possession of ammunition for which convictions he is serving his present term of imprisonment.
AMNESTY: is then accordingly GRANTED to the applicant in respect of those counts.
ADV STEENKAMP: As you wish Mr Chairman.
CHAIRPERSON: Adv Steenkamp, I assume that takes care of Mr Shein's matters?
ADV STEENKAMP: That is correct Mr Chairman. If you will allow, Mr Sibeko will be taking over from Mr Shein, thank you Mr Chairman.
CHAIRPERSON: All right. You are excused Mr Shein and Mr Mabena as well, you are excused.
WITNESS EXCUSED
CHAIRPERSON: Shall we give Mr Sibeko an opportunity just to organise himself?
ADV STEENKAMP: If you would allow that Mr Chairman, thank you sir.
CHAIRPERSON: We will take a short adjournment.
COMMITTEE ADJOURNS
