DECISION
This is an application involving a number of amnesty applications by the above applicants who all claim to have been members of the African National Congress (ANC) at all material times. In the majority of cases applicants seek amnesty in respect of several acts of murder and attempted murder of Black Cats and Inkatha Freedom Party (IFP) members between 1990 and 1993. In other cases amnesty is being sought for acts of robbery of arms and money to organise logistics for the ANC Self Defence Units (SDU's) which were formed to defend its members against Black Cats and the IFP attacks.
Originally there were thirteen (13) applicants. At the hearing it emerged that the application in respect of JACOB ISRAEL MABENA (AM6206/97) is a general application in that no specific incidents are being referred to. The applicant simply avers that during the attacks he was one of the ANC leaders in the former Eastern Transvaal who encouraged their members and supporters to form SDU's to defend themselves. He claims no direct or indirect participation in any incident. He has not been implicated otherwise in the incidents presently under consideration. In the circumstances, it has been agreed with his legal representatives that his application be kept in abeyance and no decision in respect thereof is requested.
There is also the matter of PELELE LAWRENCE SHONGWE (AM5744/97) whose application has been dealt with separately as it relates to separate incidents, times and context. All applications are being opposed on the ground that there is no full disclosure and that they were not politically motivated.
The background and evidence can be summarized as follows:-
In 1989 an Anti Crime Committee (ACC) for Wesselton, a former black township of Ermelo, was established allegedly at the initiative of the South African Police (SAP) and with the apparent support and approval of the local community. It consisted mainly of young residents of the community and was led by Chris Ngwenya and Jwi Zwane who were subsequently killed in the course of the ensuing conflict. Shortly thereafter, and quite contrary to its original goal of combating crime in the community, its members resorted to crime and violence against residents. These acts were directed primarily against ANC members who were hunted down, attacked and killed. There were widespread perceptions that this group had the support of the police, the IFP and the Municipal Authorities. No action was taken by the police against the group in order to protect the community. It is not entirely clear when this group became known as the Black Cats, seemingly because of the reign of terror which they conducted. The 7th applicant testified that whilst he was a Black Cats member, and before defecting to the ANC they were assured by Ngwenya and Zwane that the police would never arrest them. Their instructions were to seek and destroy all ANC members and sympathisers. Later it also emerged that some members of Black Cats had received military training which was organised by the IFP. The 10th applicant, who was initially a Black Cats member as well but subsequently defected to the ANC, also testified to this effect. He further testified that Black Cats members worked closely with the police who gave them weapons and protection.
At some stage a public meeting was held by the community and it was resolved that Black Cats should be dissolved. Negotiations with the police and Black Cats leaders yielded no positive results and, instead, violence was exacerbated. Not even mediation by members of the clergy could bring about the desired results and Black Cats refused to dissolve. The 1st, 2nd, and 3rd applicants say at some point they decided to set up a special committee to quell down the violence and stabilise the situation. Later the 4th applicant also joined the committee and took part in its decisions. Some of the members of that committee met the late Chris Hani in an attempt to solicit advice. Hani advised that they had the right to defend their community which consisted predominantly of ANC members, but he was not going to provide them with any material help to achieve the stated goal. The same advice was received from Jacob Israel Mabena who was then the General Secretary of the Eastern Transvaal COSATU and ANC chairperson for Secunda. The special committee decided that the situation was so serious that Zwane and Ngwenya had to be assassinated in order that violence would subside, but the reverse in fact occurred. It was resolved to kill Zwane first but when no improvement of the situation occurred, Ngwenya was assassinated. Applicants have furnished the Committee with a list of incidents of attacks on ANC members and supporters. That those attacks occurred has not been contradicted and we accept that they did occur.
The special committee of four decided that SDU's be established and the 5th applicant, a trained Mkhonto Wesizwe (MK) soldier from the Eastern Cape, was to play a key role in organising self defence operations. His first task was to ensure that the two Black Cats leaders were killed. The special committee which took decisions in secret did not communicate with the 5th applicant directly and the 4th applicant conveyed the instructions to him. He was given a general mandate to set up SDU's, recruit and train volunteers who were prepared to do what was necessary to restore peace. He was to use his own discretion as to the targets and where to obtain arms. Both the 4th applicant and members of the special committee say it was very clear that he, 4th applicant, would have to use force if necessary, to obtain the requirements for the operations, hence the robberies.
Applicants have testified that they knew that it was not ANC policy to carry out acts of robbery. They say that because they found themselves in a life and death situation they had not choice but to devise plans to protect their people. They also say that they were not acting out of malice or personal gain. By the end of 1990 the reign of terror had spread to other surrounding towns of the former Eastern Transvaal, namely, Secunda; Davel; Bethal; Breyten and Piet Retief. SDU's operators and activities had to extend to such areas as well to protect the ANC constituency against Black Cats and the perceived IFP inspired violence.
It is in this context that the crimes listed below were committed by the various applicants. There is no evidence at variance with the applicants testimony about the occurrences.
Having regard to the motives for the attacks, the context in which they occurred, in particular, the fact that the attacks were directed against political opponents who had the actual or perceived support of the police, we are satisfied that the applicants are entitled to amnesty. We are also satisfied that the said acts of robbery to secure arms and money for SDU's operations are offences associated with a political objective as contemplated in the Act. The Committee further accepts the applicants' evidence that they did no more than what was decided to bring an end the ongoing violence. It is clear that some of the victims were caught up in the cross fire and we accept that the attacks were mainly directed against those who were responsible for the violence.
(a) Amnesty is hereby
GRANTED: to
1. JOHN FANYANA MNDEBELE;
2. SIPHO SILAS NKONYANA;
3. NICHOLAS MFUNDISI ZWANE; and
4. JABU AARON MKHWANAZI for the murder of JWI ZWANE; CHRIS NGWENYA and LINDIWE NKOSI.
Applicants are further
GRANTED: amnesty for the attempted murder of THEMBISILE ELDAH NKAMBULE; HAPPY MHLONGO; SIBUSISO TITO NKOSI and ERIC NKOSI.
(b) Amnesty is also
GRANTED: to JABU AARON MKHWANAZI for illegal possession of an AK 47 rifle; a Makarov pistol and ammunition.
(c) The amnesty application of SIPHO SILAS NKONYANE in respect of the murder of CHRIS NGWENYA and LINDIWE NKOSI succeeds and is
GRANTED: .
His application for the attempted murder of THEMBISILE ELDAH NKAMBULE and illegal possession of a firearm and ammunition also succeeds and is
GRANTED: .
(d) The application of MPUMELELO LIVINGSTONE LUKHELE in respect of the murder of OBED FRIDAY NHLABATHI (August 1992) and of BHE MALINGA (October 1993) succeeds and is
GRANTED: .
Applicant's further application in respect of THE attempted murder of unknown members of the South African Police (SAP) at Ermelo in November 1993 and illegal possession of firearms and ammunition, succeeds and is
GRANTED: .
(e) Amnesty is
GRANTED: to MANDLENKOSI ENOCH "GUITAR" MNISI in respect of illegal possession of two (2) hand grenades; attempted murder of members of the South African Police (SAP) and damage to a police vehicle by throwing a hand grenade in the direction of the police and members of the Black Cats who were in the same vicinity at Ermelo in 1993.
(f) Amnesty is
GRANTED: to MZWANDILE HOLLINGWOOD GUSHU in respect of the murder of
1. JWI ZWANE
2. CHRIS NGWENYA
3. LINDIWE NKOSI
4. DAVID DE BRUIN
5. ADVICE GWALA; and
6. THEMBA MLANGENI
Applicant is further
GRANTED: amnesty for the attempted murder of
1. HAPPY MHLONGO;
2. ERIC NKOSI;
3. SIBUSISO NKOSI;
4. THEMBISILE ELDDA NKAMBULE;
5. WYNAND FOURIE;
6. CHRISTOPHER MASINDA;
7. REMICARD MYENI;
8. ALPHEUS ALI MSIBI.
(g) Amnesty is
GRANTED: to PAULOS PISTOL NKONYANE in respect of the murder of CHRIS NGWENYA and LINDIWE NKOSI.
Applicant is further
GRANTED: amnesty for the attempted murder of THEMBISILE ELDAH NKAMBULE.
(h) Amnesty is
GRANTED: to LUCKY PETROS MBOKANE for the murder of DAVID DE BRUIN and the attempted murder of WYNAND FOURIE; CHRISTOPHER MASINA and REMICARD MYENI.
(i) Amnesty is
GRANTED: to LIVINGSTONE MPUMELELO LUKHELE for the murder of OBED FRIDAY NHLABATHI and the attempted murder of BHE MALINGA.
(j) The amnesty application by BONGANI SIBUSISO WILBERFORCE KHABA in respect of the murder of OBED FRIDAY NHLABATHI succeeds and is hereby
GRANTED: .
(k) Amnesty is
GRANTED: to DAVID ELVIS MAJOLA in respect of the murder of an ANC female member ZINI SHONGWE in 1991 when applicant was still an IFP and Black Cats member, but later defected to the ANC; the murder of CARLTON MASEKO in 1991; the attempted murder at Ermelo in 1991 of an unknown black male who was an ANC member; the damage caused
The committee further declares as victims all dependants of the deceased and those who were personally injured as the result of the acts referred to in these incidents. They are accordingly referred to the REPARATION and REHABILITATION COMMITTEE for consideration of their requests for compensation and appropriate relief. A list of the names and addresses of victims identified at the hearing is attached to the decision marked "A".
SIGNED AT CAPE TOWN ON THIS 15 DAY OF DECEMBER 1998.
JUDGE RONNIE PILLAY
ADV. FRANCIS BOSMAN
ADV. NTSIKELELO SANDI
LIST OF VICTIMS
NAME: DEPENDANTS
1. Sobatha Jwi Zwane : Nkululeko Zwane (14)
Coleen (12)
Nombuso (9)
Brian (6)
Nonceba (15)
Chris (19)
(all Zwane's) Busi (13)
Address: : c/o Alias Zwane
2572 Long Homes
Box 2671
Wesselton
2. Chris Ngwenya (deceased) : Buti Ngwenya (child)
c/o Fani Ngwenya
3331 Ext. 2
3. Lindiwe Nkosi (deceased) : Shado Ngwenya (12)
Magnificent Ngwenya(9)
Jessie Cilo (mother)
Address: : 17 Kunene Street
Wesselton
4. Themba Mlangeni : Mfanaphela Mlangeni
(son)
c/o Nomathemba
Mlangeni
Wesselton
5. Advice Gwala (deceased) : Olga Sibiya (mother)
Ayanda Gwala (0)
Ntombenhle Gwala (8)
Address: : c/o Olga Sibiya
18 Tainer Road
Empangeni
3880
