DECISION
Applicant herein applies for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995, (the "Act"), as amended, in respect of the following incidents that occurred in the period 1991 to 1992:
1. the murder of Busangani Shandu on the 12th June 1992;
2. the attempted murder of Solomon Ngcobo on the 12th June 1992;
3. the murder of Alfred Mantyi during September 1991;
4. the attempted murder of Robert Mabaso during September 1991;
5. the unlawful possession of an AK47 during the period August 1991 to June 1992;
6. the unlawful possession of a 9mm pistol during the period 1991 to June 1992.
Applicant is serving a 12 year term of imprisonment, imposed by the High Court, on the 24 March 1994 in respect of the first two incidents. A further 8 year term of imprisonment imposed for the second incident was suspended by the Court. Applicant was not charged for the latter four incidents. In his testimony he stated that this understanding was that these had been treated as unresolved crimes by the police who were unable to establish who the perpetrators of these offences might have been.
SUMMARY OF THE EVIDENCE
Applicant testified that he was a member of the African National Congress (ANC) and a member and shop-steward of the Food and Allied Workers Union (FAWU). As such he was active at his workplace, namely Langeberg Foods, Boksburg, Gauteng, where he commenced employment during June 1983. The factory employed approximately 900 workers. Most of them were members of FAWU. No other trade union was active at the workplace.
Applicant, however, pointed to the political struggles and conflicts that impacted on and influenced events at the workplace. He specifically pointed to the conflict between ANC and Inkatha Freedom Party (IFP) supporters. Members of both political parties worked at Langeberg Foods, and one of the major issues FAWU grappled with at the time was the effort to ensure that management did not change from its policy of recognising one official union - i.e. FAWU.
As a result the relationship between FAWU (whom Applicant equates with the ANC) and other political groups was not healthy. There were constant reports of violent clashes between members of these rival political groupings. One such incident occurred in August 1991 when Applicant and other workers were assaulted by people who had entered the work premises. These people bore arms, they were wearing IFP T-shirts, and carried placards bearing derogatory remarks.
A second incident that occurred in the same month was the abduction and murder of two colleagues by members of the IFP. They were questioned and shot at. One died, while the other survived to tell the tale of the abduction, implicating IFP members who worked at Langeberg Foods. These attacks on ANC/FAWU members did not abate. As a result, a delegation of shop-stewards was sent to consult the ANC and FAWU on appropriate remedies to deal with the situation which had become
untenable. Management had also been approached at some stage, but had not been able to be of much assistance.
FAWU and the ANC proposed certain solutions that were of limited benefit. The shop-stewards then took a decision to fight back. Applicant's testimony was that the decision was to fight for themselves, their womenfolk, the political organisation and their trade union.
They decided to purchase weapons and ammunition, and money was collected from the workers for this purpose. They managed to procure four AK47 assault rifles and two 9mm pistols to give their opponents a "taste of their own medicine". This entailed establishing who the worst culprits were and targeting them.
One Alfred Mantyi was killed by the Applicant and one Joseph Mabaso, as a consequence of the strategy that had been adopted by the workers. Mantyi had defected to the IFP and was known to be informing on his old comrades, thus putting the lives of the latter in jeopardy. Applicant and Joseph established Mantyi's whereabouts and his movements, and shot and killed him in September 1991.
Thereafter Applicant and Joseph went in search of one Robert Mabaso. On arrival at Robert's house they were informed that Robert was not there. They fired a few shots in the air and told the occupants to tell "that dog" that they were looking for him.
Applicant testifies that this incident was followed by that of the killing of Shandu and the attempted murder of Ngcobo on the 12th June 1992. On the same day Applicant chased one Zuma who was also a member of the IFP. Nothing came of this latter incident. As a result he seeks amnesty for the incidents relating to Shandu and Ngcobo only.
On the morning of the incident, Applicant testified that as he arrived at work, there was an attack taking place. His fellow shop-stewards, including one Amos Gamede and one Mduduzi were being attacked. Mduduzi was killed on the spot. There was chaos in the factory. In the shop-stewards' office, there was a discussion concerning the attack and the killing of Mduduzi. Applicant urged the members to fight back and attack with the same precision that the opponent executed their attacks. Applicant's opinion was that as it appeared that their opponents were attempting to finish them off, the best form of defence was to attack their opponents. This meant attacking the members of the IFP who worked in the factory and who were able to point out the FAWU members.
After the meeting, Applicant went to his locker and found a bayonet that he kept there. Using this he attacked Ngcobo first. Shandu saw this and picked up a steel pipe with which he attacked Applicant. Applicant managed to strike Shandu, but just then, saw a policeman who took the bayonet off him but let him go. He then saw Zwane and gave chase. In the process he joined other workers who were fighting Robert Mabaso and other IFP members. Once again he unsuccessfully tried to "deal with" Mabaso. The police arrived soon afterwards and peace was restored at the factory premises.
Applicant was arrested for his participation in the activities that morning. He was charged and convicted of the offences referred to above.
Applicant's explanation to the Committee was that he did these things because of the situation that prevailed at that time. He testified that they had tried to talk to their opponents. Their opponents had guns and other weapons. They in turn had to try and obtain guns and attack their opponents in the same way that their opponents were attacking them. Their perception was that there was a lack of willingness to act and stop the violence, particularly on the part of the law enforcement agencies. Management's response had been that there was nothing that they could do. What occurred beyond the factory gates was out of their control. In conclusion Applicant testified that because of their actions, peace was restored at the Langeberg Foods workplace.
Graeme Simpson of the Centre for the Study of Violence and Reconciliation testified in support of the application. He confirmed that industrial relations had been politicised at this stage, and could not be viewed outside of the context of the political struggles of the time. At this particular factory, the IFP was attempting to undo the recognition by management of the ANC affiliated FAWU. There was a strong sense in the environment, he testified, that people were in danger and had to defend themselves. A conspiracy between management, the IFP and the South African Police was suspected by FAWU, which suspicion was fuelled by the meetings between management and the local IFP leaders who were trying to persuade management to recognise their fledgling union. The reality, Simpson testified, was that management was resisting their overtures, but this was not the perception of the FAWU members.
Finally, Joseph Mabaso, who had been implicated by Applicant with respect to the killing of Alfred Mantyi, elected to give evidence.
In his testimony he denied having been in the company of the Applicant when Mantyi was killed. He speculated that Applicant mentioned his name because though he and Applicant had been good friends, he had failed to visit Applicant in prison.
He did however broadly confirm that there had been much violence at the Langeberg Foods premises during 1992. As a shop-steward, he had been in the delegation that had approached the ANC for assistance in resolving the problems.
ASSESSMENT OF THE EVIDENCE
The Truth and Reconciliation Commission's investigators attempted to trace the victims of these incidents, without success. No opposition to the application was thus made. On the facts as set out by the Applicant and confirmed by Graeme Simpson, the killings have been strongly rooted in the political upheavals of the times. The East Rand, in particular, bore the brunt of the political battles that were waged in the then Transvaal.
Applicant mentions both the incidents that he was convicted for and those that the police to date did not know he had been involved in. He had no reason, except that of meeting the requirements of a full disclosure, to mention the incidents that the police had not been able to shed any light on during their investigations. The Committee accepts that evidence.
Joseph Mabaso's evidence has been considered by the Committee. The Committee is of the opinion that the material aspects of this evidence do not detract from the overall assessment by the Committee of the value of the Applicant's averments with respect to the requirements of the Act.
To succeed in his application, Applicant must meet the criteria set out in Section 20 of the Act.
The Committee is satisfied that he was a member of FAWU and a member or supporter of the ANC. He acted throughout on the basis that he was protecting himself, his union and fellow members, and his political organisation. His objective was political. The Committee is satisfied that his actions benefitted these political objectives, not personal objectives.
In the premises, Applicant qualifies for amnesty in terms of the requirements of the Act and amnesty is granted in respect of:
1. the murder of Busangani Shandu on the 12th June 1992;
2. the attempted murder of Solomon Ngcobo on the 12th June 1992;
3. the murder of Alfred Mantyi during September 1991;
4. the attempted murder of Robert Mabaso during September 1991;
5. the unlawful possession of an AK47 rifle during the period August 1991 to June 1992;
6. the unlawful possession of a 9mm pistol during the period 1991 to June 1992.
The matter of the death of Busangani Shandu and Alfred Mantyi, and the attempted murder of Solomon Ngcobo, are referred to the Committee on Reparation and Rehabilitation for its consideration in terms of Section 26 of the Act.
DATED at CAPE TOWN THIS 30TH DAY OF OCTOBER 1998.
DENZIL POTGIETER, A.J. ADV. L. GCABASHE MR J.B. SIBANYONI
