DECISION
The applicants have applied for amnesty in terms of Section 18 of Act 34 of 1995 in respect of the murder of Zenzile Charles Dlamini committed on the 21st July 1991 at Kanana Township in Orkney. The applicants were sentenced to 10 years' imprisonment.
The first and the second applicants were members of the ANC and the South African Youth Congress (SAYCO). They also served as marshals for the ANC Youth League. The third applicant was at all material times relevant hereto a member of the ANC and an Executive Committee Member of the ANC Youth League.
The deceased, Zenzile Dlamini, was at one stage or other also a member of the ANC Youth League. It is not clear whether he resigned from the ANC but he later established a vigilante group which was called Kofifi whose primary activities was to disrupt meetings convened by the ANC or the Youth League, harass members of the ANC and generally sow mayhem in the community.
All three applicants led evidence of various acts of harassment in the form of assault and rape committed by the deceased, predominantly on the members of the ANC and its Women's League. They gave evidence that at one stage, the community was so engulfed by the mayhem caused by the deceased's group that they sought the assistance of the National and Regional offices of the ANC. The advice received from both offices was ineffective to put an end to the vigilante group's mayhem. On the contrary their acts went unabated and were accelerated.
The applicants contended that they perceived the deceased's gang to be collaborating with the local police and suspected that the gang was aided and abetted by the police. This perception was based on the fact that the deceased was on several occasions apprehended by the leadership of the ANC and delivered to the local precinct after being accused of committing atrocious and brutal crimes against the ANC members. Notwithstanding this great effort on the part of the ANC leadership, the deceased was released by the police as soon as the leadership left the precinct. The police did not even attempt to investigate any of the numerous complaints lodged by the leadership against the deceased and his gang. This perception became particularly profound when a certain Oupa Mabele, a member of the Kofifi gang, made a fundamental revelation that his gang was assisted by one white policeman only known as Neope, with guns and money in order to attack ANC members and to disrupt ANC meetings.
The applicants gave evidence that on the 21st of July 1990, the ANC Youth League held a meeting to discuss inter alia the crime wave which had engulfed the township, which was attributed to the deceased's gang's acts of political harassment. Whilst the meeting was in progress, an urgent report was received that the deceased had on the previous day again assaulted an elderly member of the ANC's Women's League and had subsequently killed her. Those present at the meeting were infuriated by these reports and demanded that the deceased be killed instantly. The members of the Executive Committee however issued instructions to the marshals to locate the deceased and bring him to the meeting. Later on the deceased was brought to the meeting and he confessed to the sexual assault of the woman concerned, and to the grievous assault on the woman's husband.
People present at the meeting became more livid with anger at hearing this confession and again demanded that the deceased should be killed. The leadership dissuaded the meeting from killing the deceased, but insisted that the deceased be taken to the police station. This angered the meeting as it felt that the police had dismally failed in many instances to even charge the deceased because he was working in collaboration with the police, in order to impede the ANC from exercising free political activity in Kanana. The leadership's decision to take the deceased to the police station finally prevailed. A handful of marshals, which included the applicants were appointed to escort the deceased to the police station.
There is some discrepancy between the evidence led before us and that contained in the first and the second applicants' applications with regard to whether the deceased was murdered at the meeting or on the way to the police station. We do not regard this discrepancy to be material.
It is common cause that when the first and the second applicants were taking the deceased to the police station, he pulled out a gun and before he could fire at any person, the first applicant fired a shot at the deceased using a firearm he had been given earlier on by the third applicant. After the first applicant had shot the deceased, the second applicant stabbed the deceased with a knife and a group of irate people who had left the meeting to accompany the marshals who were taking the deceased to the police station, also participated in the attack using as assortment of weapons on the deceased.
Given the above facts, it is quite evident that the deceased and his gang disrupted meetings of the ANC, thereby impending the ANC in their exercise of free political activity. They committed atrocious acts against the members of the ANC and were generally perceived as an anathema in the community. The local community and the ANC leadership perceived them as collaborating with the local police to inhibit them from exercising free political activity in the township. We therefore find that the primary aim of the deceased's group was to and did in fact impede members of the ANC from exercising free political activity.
In so far as the first and second applicants are concerned, we are satisfied that the killing of the deceased by such applicants was an act associated with a political objective, and their application for
AMNESTY IS ACCORDINGLY GRANTED: .
In reference to Elias Busakwe: the third applicant has given testimony that he did not physically participate in the killing of deceased at all and therefore did not commit any murder. He however admitted certain facts which makes him guilty of killing the deceased. He was one of the Executive Committee members who gave instructions to the marshals to fetch the deceased and to bring him to the meeting. He was aware that the members attending the meeting were in an extremely aggressive mood and had called for the immediate death of the deceased even before he was brought to the meeting.
He participated in the interrogation of the deceased about the grievous act allegedly committed by the deceased when he must have foreseen that any such interrogation before an irate and aggressive public was placing the deceased's life in danger. He allowed the first applicant to escort the deceased armed with a firearm which he had furnished to him when he was aware that the mood of the participants, including the first applicant was one of extreme anger. Even though he did not physically participate in the killing of the deceased he has admitted facts which in terms of the provisions of Section 20(2) of the Act connect him to the murder of the deceased.
Having regard to all the evidence placed before us, we are satisfied that the third applicant has complied with the requirements of Section 20(2) and (3) of the Act. His application is accordingly
GRANTED: .
SIGNED IN CAPE TOWN ON THE 13th OF MARCH 1997.
(Signed)
MALL, J
WILSON, J
NGOEPE, J
ADV C. DE JAGER SC
MS SISI KHAMPEPE
