DECISION
After the ousting of the Sebe regime in Ciskei through a military coup, the military government headed by Brigadier Gqozo propounded the replacement of the headmen system with democratically elected civic structures. This move was widely welcomed by the people of the Ciskei. At a later stage and for reasons which are not presently clear, the military government reversed its position and in fact re-introduced the headmen system. This situation and some other grounds of political discord, led to a protracted and bitter conflict between the mass democratic movement, led by the African National Congress ("ANC"), and the Gqozo regime which had formed its own political party namely African Democratic Movement ("ADM"). This situation resulted in the major tragedy on 07 September 1992 which later became commonly known as the Bisho Massacre. The political situation throughout the Ciskei was volatile and explosive and ripe for a bitter and bloody strife between the two competing forces.
It is against this background that an attack was launched on the house of Ndodiphela Caswell Maseti, a headman and suspected member of the ADM, residing at Upper Gqumashe Location, Alice by a group of youths who were members of supporters of the ANC. In the course of the first of these attacks, which occurred during the night of 27th to 28th September 1992, the house of Mr Maseti was set alight and completely destroyed. On the morning of 28th September 1992 the group of youths started searching for Mr Maseti to confront him in an attempt to compel him to resign his position as headman. He had until then resisted all attempts to get him to resign. Later during the day Mr Maseti was seen arriving in the village, but fled immediately in the direction of a neighbouring village when he saw the group of youths. He was pursued by the group and pelted with stones. Some members of the crowd carried motor vehicle tyre's and others were armed with sticks and objects. The group caught up with Mr Maseti in the neighbouring village and attacked him. the group threw stones at him, hit him with sticks and stabbed him. He was later set alight and died as a result thereof.
At an inquest into the death of Mr Maseti, some of the witnesses purported to implicate the two applicants in this application. The evidence of these witnesses was of such a poor quality that the Magistrate found them mot to be credible witnesses and in the result rejected their versions. The inquest finding exonerated the applicants and absolved them from any blame for the death of the deceased.
This forms the background to the applications for amnesty by the applicants, Zuko Zukile Makapela, a 23 year old college student and Ludumo Sylvester Mati, a 28 year old unemployed partly qualified motor mechanic. Both applicants submitted 3
the prescribed amnesty application form, Form 1, duly completed as well as affidavits setting out the basis of their case and the testimony they intend presenting at the hearing. The affidavits were submitted in accordance with the rules determined by the Amnesty Committee. We shall revert to the issue of the affidavits later in this judgment.
At the hearing and by agreement between the parties,only the evidence of Mr Makapela was presented, which evidence confirmed the largely identical versions of both Applicants as set out in the papers. In short, both Applicants admit to some or other form of participation in the attack upon the deceased. Their roles were largely peripheral but sufficient to render them legally liable for the killing of the deceased. they were both members of the ANC Youth League, Upper Gqumashe branch, Alice at the time.
In view of the circumstances of the killing as set out above, we are satisfied that the incident was clearly of a political nature. It should be mentioned in this regard that the applications are supported by the ANC, Alice which confirmed the membership of Applications as well as the fact that the incident was in accordance with the nature of the political struggle waged at the time. We are accordingly satisfied that the applicants comply with the requirements of Act 34 of 1995 ("the Act") and amnesty is accordingly granted to the applicants in respect of killing of the late Ndodiphela Caswell Maseti.
We are of the opinion that Tandiswa Beatrice Maseti of Upper Gqumashe Location Alice, is a victim in relation to the killing of Ndodiphela Caswell Maseti and the matter is accordingly referred to the committee on Reparation and Rehabilitation for its consideration in terms of section 26 of the Act.
In conclusion, it is necessary to consider the issue concerning the submission of the affidavits of the applicants in support of their application. In view of the overwhelming workload of the Amnesty Committee, the limited time at its disposal to complete its work and the drain on much needed public funds and resources in order to maintain the truth and reconciliation process, it is necessary for the Committee to determine rules and procedures to streamline and expedite amnesty applications. It is likewise necessary to strictly apply and enforce such rules and procedures to achieve the stated objective. In the circumstances the Committee has determined in accordance with the provisions of Section 19 (1) and 30(1) of the Act that applicants for amnesty, where a hearing is to be held, shall submit an affidavit setting out the basis of their case and the evidence to be presented at the hearing, within a reasonable period of time prior to the hearing. A similar affidavit is required from opposing an application. One of the purposes of the affidavits is to determine the precise ambit of the matters in issue before the hearing in order to regulate and limit the time spent at the hearings.
A notice of set down of the hearing as well as a notice requesting the said affidavits were submitted to the offenses of the Applicants' attorney of record by telefax on the 26th March 1998, indicating that the matter would be heard in Port Elizabeth during the period 28th and 30th April 1998. In spite of various subsequent communications between the offices of the Amnesty Committee and the applicants' attorney of record, the said affidavits were only submitted on the morning of the first day of the hearing. Needles to say, this has resulted in a complete negation of the aforesaid purpose for which the affidavits are required and has caused considerable inconvenience and disruption of the Committee's process.
This application was called on the second day of the hearing session, i.e. 29 April 1998 due to the fact that the panel first heard other applications which preceded the present one on the hearing roll. In view of the lateness of the affidavits the hearing would in any event not have been able to commence on the first day. No explanation was offered of this unsatisfactory state of affairs by the Applicants' attorney prior to the commencement of the hearing.
At the commencement of the hearing, the panel indicated to Applicants' attorney, Mr Hole, that he is required to deal with the late submission of the Applicants' affidavits as well as the costs implications thereof. It should be mentioned in this regard that the applicants' legal costs are funded through the Truth and Reconciliation Commission's legal assistance which operates on a small budget consisting entirely of public funds. Mr Hole neglected to lead any evidence in this regard and the relevant facts had to be elicited form Mr Makapela by members of the panel. When called upon to specifically deal with this issue during his closing argument, after having again neglected to do so, Mr Hole's submissions basically amounted to the fact that it was impossible to submit the affidavits at an earlier stage due to problems of communication between his office and applicants who, on his submission, reside in a remote village in a rural area. It should be mentioned in this regard that according to Mr Makapela, Applicants were informed of the hearing approximately 3 weeks prior to the hearing, but that they only consulted with Mr Hole on the Tuesday prior to the hearing. This again contradicted the statement made by Mr Hole to the panel that he consulted with Applicants two weekends prior to the hearing. Although there is some uncertainty in his testimony regarding the issue of the affidavits, Mr Makapela's testimony was quite clear that no specific arrangements were made in regard to affidavits. It was merely agreed that applicants would meet Mr hole at the venue of the hearing on the morning of the first day of the hearing. The affidavits were signed at that stage only. It also appeared that Mr Makepela attends college in East london, close to Mr Hole's offices in Mdanstane. He was in fact contacted by the attorneys at the college in order to arrange the consultation. Mr Hole failed to give any satisfactory explanation of any of these issues. In the circumstances we are not persuaded that the late submission of Applicants' affidavits was due to problems of communication experienced by their attorneys.
Suffice to say that after having heard the relevant testimony of Mr Makapela and having considered all of the submissions made by Mr Hole in regard to the issue of the affidavits, we are not satisfied that the late submission of the affidavits was not attributable to any neglect or remissness on the part of applicants or their attorneys. We are satisfied that this failure was due to a blatant disregard of the rules and process of the Amnesty Committee.
In spite of the importance of strictly enforcing with the determined rules and procedures, we have reluctantly agreed to hear the application in order not to prejudice the applicants who were themselves not actually at fault in regard to late submission of the affidavits. We are, however, not satisfied that it is in the interest of justice that any costs be allowed in respect of the first day of the hearing i.e. 28th april 1998 or in respect of the preparation and submission of the affidavits of Applicants. It is further noted for the purposes of taxation that the hearing was held between 10h00 -13h00.
It is accordingly ordered that:
1. Amnesty be GRANTED to the applicants of the killing of Ndodophela Caswell Maseti at or near Lower Gqumashe Location, Alice on or about 28 September 1992;
2. The matter is referred to the committee on Reparation and Rehabilitation for consideration in terms of section 26 of Act 34 of 1995 as to whether Tandiswa Beatrice Maset of Upper Gqumashe Location, Alice, is a victim in relation to the said killing;
3. No costs are allowed in respect of the day of 28 April 1998.
SIGNED ON THIS THE 22ND DAY OF JULY 1998.
JUDGE R PILLAY
ADV D POTGIETER SC
MR J B SIBANYONI
