DECISION
Applicant seeks amnesty in respect of the following offences:-
1. The murder of Bongani Malinga on 22 October 1993 at Ermelo;
2. The murder of Ernest Malele on 15 February 1994;
3. The attempted murder of an unknown black male on 15 February 1994;
4. Illegal possession of a firearm and ammunition; and
5. Theft of a firearm and ammunition.
It would appear that applicant was charged and found not guilty of the murder of Malinga. In respect of the murder of Malele and attempted murder of an unknown black male, it seems that an inquest was held and applicant was found not responsible for the said offence.
Applicant was a member of both the African National Congress (ANC) and of the SDU's at the time of the commission of the offences in question.
Presently he is a member of the South African National Defence Force. We propose to deal with each offence individually.
1. THE MURDER OF BONGANI MALINGA
Malinga was a member of the Black Cats as well as the Inkatha Freedom Party (IFP). Applicant testified that there was an instruction from the ANC leadership that ANC members (should) set up SDU's and to do everything possible in their discretion; to arm themselves and defend the Ermelo Community. He says he knew Malinga as a member of the Black Cats and that he had played a very important role in the killing of the ANC - SACP - COSATU alliance members. On the day in question applicant who resided at Ermelo was going out of his homestead. He saw Malinga who was in the company of a member of the Black Cats, Bongi Mkwanazi. He described what happened as follows:-
"I ran to him and I shot him". Having shot him on the leg some distance away, Malinga fell to the ground. Applicant turned towards him and again shot him about three (3) times in the ribs. When applicant was at close range he shot Malinga about eleven (11) times.
It was put to applicant that evidence had been led that by 1993 levels of violence at Ermelo had significantly dwindled and that there was no more fighting there. He explained that although violence had generally subsided, in his area which he referred to as the extension where Black Cats were located, the situation had not changed. He would not sleep at home as he feared being attacked and killed by Black Cats. Applicant testified that Malinga intimidated ANC members and its potential supporters. He was forcing people to join the IFP and frustrated all attempts to mobilise and recruit for the ANC. He had also been alerted by those he had recruited from IFP and former Black Cats members that Malinga was very dangerous and well trained. In his application form, applicant says he had previously been attacked thrice by Black Cats who included Malinga; and in the 4th attack he shot and killed Malinga who was also attacking him. This is very different to what he now says in evidence. Applicant says his attorney must have misunderstood his version of the events and attributes this to his poor knowledge of the English language.
2. THE MURDER OF ERNEST MALELE AND AN UNKNOWN BLACK MALE
This occurred at White River in an area known as Gogogeo. Before the occurrence of these offences, applicant had fled from Ermelo to Nelspruit. He says his life was in danger at Ermelo. At Nelspruit he was granted refuge in what he refers to as an "ANC safe house". Whilst applicant was there with Pat whose full names are unknown to him, Malele came. He said he was looking for his briefcase which contained the National Party (NP) documents. Applicant and Pat replied that they did no know. Malele them asked applicant to identify himself and where he came from. After Malele had left, Pat told applicant that he would have to be careful of Malele and the unknown black man who was in his company. Pat surmised that the two might come back. He further told him that they were NP members.
In the evening of the same day applicant and Pat heard a knock on the door. On opening the door, applicant saw the two. He says by then he was convinced that they had come to kill him. He says they both made gestures as if they were drawing guns from their holsters on their waists. Applicant opened fire. Malele died instantly. The other person was injured. When they searched them they found pangas in their bodies. Applicant suggested to Pat that they put the corpse and the injured man back into the car in which they were travelling. They drove the car away and when they came to a river they took the documents which were inside and burnt it. Soon thereafter, and whilst the vehicle was engulfed in flames, it began to rain. The rain extinguished the fire. They then left the scene. Applicant says he shot the two (2) men because they were NP members, which party he regarded as enemies of the ANC. He says it is also because they wanted to kill him and he was acting in self defence. He says they had already told him that they were going to come back to sort him out. When asked by the Committee whether there was political violence between the ANC and NP in the area at the time, his answer was in the negative.
3. OFFENCES PERTAINING TO ILLEGAL POSSESSION AND THEFT OF FIREARMS AND AMMUNITION
As a member of an SDU he had an instruction to get himself a firearm to defend the community. On a certain day he met a drunken policeman in the street who had a gun in his possession. Applicant robbed him of the gun because he wanted to defend ANC members and "the community at large".
DECISION AND REASONS THEREFOR: .
There is no doubt that applicant was a member of the ANC and SDU's in 1993 when he attacked and killed Malinga. Applicant has testified that he did not attack and kill Malinga out of malice, nor personal gain. His evidence that by 1993 there were still attacks by Black Cats in his immediate residential area has not been gainsaid. It is the view of the Committee that his evidence should be accepted. There is also no doubt that the murder of Malinga was a brutal and savage act but it has to be seen within the context of the murderous assaults which occurred at Ermelo between 1990 and 1993 between SDU's and Black Cats members.
Amnesty is accordingly
GRANTED: for the following
1. Murder of Bongani Malinga;
2. illegal possession of a firearm and ammunition;
3. theft of a firearm and ammunition.
Applicant has not been able to justify the murder of Ernest Malele and the attempted murder of the unknown black male. In the result amnesty is
REFUSED: for the said offences and the malicious to property when their vehicle was burnt.
SIGNED AT CAPE TOWN ON THIS THE DAY OF 1998
JUDGE R. PILLAY
ADV. F BOSMAN
ADV. N. SANDI
LIST OF VICTIMS
NAME: DEPENDANTS
1. Ernest Malele (deceased) : Millicent Nkumane
(wife)
Address: : 447 Mabilisa Street
Wesselton
Ermelo
Children: : Dimakatso Geraldine (12)
Mpho (9)
Matsidiso (8)
Ayanda (4)
2. Bongani Malinga (deceased): Ntombi Malinga
