DECISION
This is an application for amnesty by Themba David Marambana, a former member of the then Ciskei Defence Force ( CDF ). The applicant is presently serving a sentence of 10 years imprisonment for the murder of Malusi Ngubo at Fein Location, Peddie, in 1992. The applicant testified that at the time of the commission of the crime referred to herein, members of the CDF were being attacked and killed by members and supporters of the ANC. These attacks were being carried out in retaliation for the Bisho massacre which occurred on the 7 September 1992. In the course of the ensuing conflict houses were being burnt down and their family members were harassed.
The applicant further testified that he fled his home and went to stay at Battalion 161 in Bisho. In the evening of the 10 September 1992 he went to visit his home and his girlfriend who also resided in Peddie. Ironically, he left his firearm in the army barracks. He says he was wearing civilian clothes as he feared being identified by residents. Whilst he was sleeping with his girlfriend, between 03h00 and 04h00 a.m., he heard something like a big stone hitting the window. It transpired to be a petrol bomb which did not explode. He whispered to his girlfriend that they were being attacked and that she should not scream and make a noise. On peeping through the window he saw someone striking a match stick in an attempt to ignite the petrol bomb. This was unsuccessful but he recognised this person as his neighbour, the deceased, who ran away.
He says he then opened the door quietly and escorted his girlfriend out. He took her to a nearby house for safety. He wanted to call the police but his telephone had been sabotaged. He went to ask for help from a neighbour who had a pistol and that person refused to lend the weapon to him. The said neighbour however gave him his telephone to call the police who never came. The applicant says, out of anger and frustration, he took a taxi and went to Peddie to fetch his firearm. At that stage he had already made up his mind that he was going to shoot the deceased. On his return he saw the deceased at his grandmother's place. He called the deceased to go with him and said he wanted to speak with him. He was hiding his firearm so that the deceased
could not see it. As they were walking together he asked him why he had attempted to burn his home. The deceased first denied but later admitted to the accusation. He asked for forgiveness. The applicant then says he shot the deceased several times and he died instantly.
The trial court found as a fact that the deceased was shot about 16 times on his body which was thus completely riddled. The applicant further testified that he knew the deceased very well and they used to go hunting together. Under cross-examination it emerged that the applicant on the way to the army barracks to fetch his rifle had gone past the police station. When asked why he did not go there and report the attempted arson, he replied that the police were busy at the time and would never have attended to him. He also says that at that time there was tension between the police and CDF members who were regarded by the police as being illiterate. For those reasons he did not believe he would get any help from the police. When asked why he had shot the deceased he said he was very angry and afraid that the deceased might come again and successfully kill him or destroy his house. He conceded that the deceased posed no danger to him at all at the time he killed him and it was hours after the attempted arson. He vaguely blames and ascribe his conduct to the previous government of Brigadier Oupa Gqozo for having made them (CDF members) to support his ideas.
When asked what political objective he wanted to achieve by killing the deceased, he answered:
"I don't want to lie, I had no political objective or gain to make and all I was doing was to protect the government".
He says he does not know if the deceased belonged to any political organisation but thinks that he may have attended political meetings as well, because many people in the village attended such meetings which were frequently held at the time. He was then asked if the deceased was opposed to the Oupa Gqozo regime and his answer was that the deceased did not do anything to support Gqozo and therefore must have been part of the opposition. A question as to whether he had previously seen the deceased taking part in attacking CDF members elicited a negative response. He further said he has never had a quarrel with him. He insists that although it was dark at the time of the attempted arson he did recognize the deceased through the light of the stick of the match when it failed to light and ignite the petrol bomb.
It is our view that although the applicant appears to have made full disclosure, he has failed to show that the murder of the deceased in the circumstances was an act associated with a political objective. Not only is it doubtful that the deceased was the person who attempted to burn the house of the applicant, but the murder of the deceased was totally unjustified in the circumstances. The applicant was not acting in self defence by shooting the deceased, 16 times several hours after he had allegedly tried to burn his house. Killing the deceased in the circumstances was too remote from the stated objective of protecting the Ciskei State. It has not been shown that the deceased was a member of an opponent political group and therefore a political enemy of the erstwhile military regime of Brigadier Oupa Gqozo. Even assuming that he was such a member or political adversary of the government which applicant supported, we repeat to say that the brutal murder was completely disproportionate to the objective of protecting the said regime.
In the result, the application is accordingly
REFUSED: .
SIGNED AT CAPE TOWN ON THIS 23RD DAY OF OCTOBER 1998
JUDGE RONNIE PILLAY
ADVOCATE CHRIS DE JAGER S.C.
ADVOCATE NTSIKELELO SANDI
