DECISION
The applicants apply for amnesty in terms of Section 18 of Act 34 of 1995 (as amended) in respect of their convictions on the attempted murder of Bongani Anderson Mpisane, the murder of a child Solethu Ngxumza and of unlawful possession of a firearm, committed in Khayelitsha on the 29th of August 1992. In respect of these convictions the first applicant was sentenced to nine (9) years' and the second applicant, was sentenced to thirteen (13) years' imprisonment.
The first applicant was an Executive member of the ANC Youth League in Khayelitsha and a leader of the Self Defence Unit (SDU) in Section B. At the time of the commission of these offences, he had been suspended by the ANC Youth League because of some alleged criminal misconduct. The second applicant was a member of the ANC in Khayelitsha and a Branch Commander of the Self Defence Unit of Khayelitsha and Nyanga East. It is common cause that there were internal conflicts within that community as a result of which the second applicant's home was attacked on the night of the 13th of May 1992 by unknown persons, in the course of which his mother was killed. The second applicant believed that Mpisane had a hand in the attack because though he was unable to identify the attackers he thought he recognised the voice of one of the attackers as that of Mpisane.
The first applicant gave evidence and read from a prepared statement. The second applicant gave evidence which was substantially to the same effect as that of the first applicant. The first applicant testified that there was a serious conflict between the members of the Police, in particular the members of the Internal Stability Unit (ISU) and the SDU's which were established by SANCO to protect the community. He stated that as SANCO was opposed to the local municipality, the government had retaliated by detaining members of SANCO to weaken their opposition. The government also brought members of the Internal Stability Unit to patrol the location. This resulted in an escalation of attacks on members of the SDU's. The SDU's therefore decided to obtain weapons in order to effectively carry out their duty of protecting the community. To this end they d decided to collect money from the local community to buy weapons. Mr Mpisane, a member of the ANC and the Self Defence Unit, was one of those appointed to receive such money. Each house in the seven sections of Khayelitsha was expected to contribute money for this purpose. It goes without saying therefore that Mr Mpisane was a well-known and prominent member in that community.
Some time later it was rumoured that Mr Mpisane had misappropriated the funds which he had received. When they questioned Mr Mpisane about it, he told them that he still had that money. They did not believe him.
In their written applications they stated that in attacking Mr Mpisane, the political objective they sought to achieve was:
"to protect my people and to make sure that there was no mismanagement of funds belonging to the SDU members."
Attacking a fellow member of the SDU for suspected misappropriation of its funds cannot be said to be an act associated with a political objective committed in the course of the conflict of the past, as required by the Act.
However, when the applicants gave evidence, they advanced a completely different reason for the attack on Mr Mpisane. They said that they believed that he was an informer of the ISU. Their reasons for such belief were:
1. On the 27th of August 1992 the applicants were due to appear at the Magistrate's Court on a charge of possessing a firearm which had been used to attack a police van. A fairly large number of residents turned up in court to lend support to the applicants. Mr Mpisane was seen by both the applicant and those accompanying them, talking to two policemen who were notorious in the community, namely a Mr Rossouw and Mr Nienaber. Mpisane's obvious association with the police made the applicants suspect that he was an informer. When the first applicant was asked whether he had confronted Mr Mpisane about his obvious association with the police at a public place, he explained that he did not do so because he did not want to alert him of his suspicion as he still intended to investigate same further. No evidence however, was led that any investigation in this regard was conducted by any of the applicants.
2. On the 29th of August 1992, the applicants received a tip-off from a young woman who is a member of the ANC Youth League, that Mr Mpisane was going to have a meeting with the members of the ISU at an unknown venue on that day. On the strength of that information, they became convinced that Mr Mpisane was indeed an informer. They therefore took a decision as SDU members to go and attack the ISU. As they did not know the venue of this meeting, they decided to visit Mr Mpisane at his home which he also used as a shop in order to obtain information about the venue of his meeting with the ISU.
Before proceeding to Mr Mpisane's place, the applicants armed themselves to the teeth with weapons. The first applicant was armed with a parabellum firearm, the second applicant was armed with M75 explosives and Malizole Mtshagia, their companion, was armed with a submachine gun. When the applicants were asked why they deemed it necessary to be so heavily armed when the purpose of visiting Mpisane was merely to obtain information about the venue of the alleged meeting with the ISU, they explained that they thought or believed that the ISU might be meeting at Mpisane's house. They further explained that since their objective was to attack the members of the ISU in order to drive them out of the township, they intended to launch an attack then and there if they found them at Mpisane's house. The applicants further testified that they went to Mpisane's place and found Mpisane outside his shop talking to a lady. The second applicant seized Mpisane by his shirt and demanded to know where the others were. Mpisane resisted, broke away from him and attempted to run away. As he did so, the first applicant and Mr Mtshagia fired several shots and left without ascertaining whether he had been shot or not. They did not make any endeavour to gain access into his house or shop because they could see from the street that there was no one inside the house nor in the shop.
We have difficulties on the basis of the reasons given above for believing that Mpisane was an informer. We are acutely conscious of the conditions which prevailed in the area as expatiated by the applicants in their testimonies. We are aware that the situation was far from normal. On the applicants' own version, Mr Mpisane was a prominent and respected member of the ANC and the Self Defence Unit. He was one of the few entrusted with an important responsibility of collecting money for the SDU's from the residents. It would therefore be highly inconceivable that a person of his political status, who is a police informer, would only associate with the police in a public place, in full view of other members of the community. It would indeed by foolhardy to say the least, for such a person to take such an obvious risk of blowing his cover. It is a well-known fact that in the abnormal situation that existed at that time, any person who was perceived to be an informer by the public, might be made to pay the ultimate price. In the circumstances no informer would have chosen to openly associate himself with the police in such a public place - certainly not a prominent person like Mr Mpisane. Consequently no reasonable person seeing Mr Mpisane speaking to the police at such an obvious public place, in full view of his local community would have reasonably believed on that basis that Mr Mpisane was an informer. We therefore find that there are no grounds on which the applicants could have believed that Mr Mpisane was an informer other than the information they received from a young woman.
Similarly we consider the reasons advanced as to why the applicants went to Mr Mpisane's house heavily armed on the 29th of August 1992 as entirely unsatisfactory. On the applicants' own version, the information that was passed over to the applicants that Mpisane was going to meet with the ISU, did not specify the venue. However, notwithstanding their lack of information in this regard, the applicants testified that they believed or thought that the ISU would meet Mr Mpisane at his premises. They said that the inside of Mr Mpisane's house and his shop was visible to any member of the public from the street. We find that it is highly improbable that Mr Mpisane would have arranged to meet the ISU in broad daylight at such a venue. It is equally improbable that the applicants believed that this would happen. Even if it is conceded that there was going to be a meeting between Mr Mpisane and the ISU, there was no basis whatsoever for the applicants to have believed that Mr Mpisane would disclose this information to them and thereby admit that he was an informer of the ISU. Such an admission to them may well have resulted in his death. If applicants believed that such a prominent ANC member was an informer, then surely the proper thing for them to do, was to report this matter to the ANC so that appropriate disciplinary action could be taken against him.
On a consideration of all the evidence, we are satisfied that there was no justification for shooting at Mr Mpisane who was attempting to run away from them. This occurred in an area used and occupied by members of the public and the reckless manner in which a firearm was used resulted in the death of the child Solethu.
The offences committed by the applicants were not associated with a political objective and were not committed in the course of the conflicts of the past. Their applications for
AMNESTY ARE THEREFORE REFUSED: .
SIGNED ON THE 6th DAY OF JUNE 1997.
MALL, J
WILSON, J
MS S. KHAMPEPE
