DECISION
______________________________________________________
The applicant is applying for amnesty in terms of Section 18(1) of the Act for the killing of Mr Boy Buthelezi and the unlawful possession of firearm and ammunition, committed on the 25th October 1993 at Sangweni Section in Tembisa.
At all times material hereto, the applicant was a member of the ANC from 1982 and went into exile to join Umkhonto weSizwe in March 1988. Upon his return from exile he became a member of the Self Defence Unit. The area in which the applicant lived was subjected to a reign of terror and untold harassment at the behest of the members of the Toaster Gang who were perceived by the residents to be collaborating with the IFP hostel dwellers, at Kwesine Hostel, an IFP stronghold.
It is common cause that there was an ongoing political battle between the IFP hostel dwellers and the members of the Toaster Gang on one side and the ANC people living in Tembisa on the other. Consequently the ANC formed Self Defence Units to protect their supporters as well as the residents. This they did because the South African Police was perceived to be collaborating with the IFP hostel dwellers and the Toaster Gang and took no effective measures to prevent or stop the ongoing violence in Tembisa.
The applicant testified that on the 25th October he was at his home when he heard the sound of gunfire. As he was on duty to patrol the neighbourhood, he went outside to investigate. Whilst outside he met one Nhlanhla Ncala a resident who informed him that three members of the Toaster Gang had robbed him of his wristwatch and money and had also robbed the shop of Ms Sweetness Makhosazana Nhlapo of cash. Nhlanhla was able to point out the alleged offenders one of whom was the deceased. At the time the applicant was armed with an AK47 and ammunition which was the possession of the SDU and was part of the consignment of weapons bought by the SDUs in order to carry out their activities of defending the community, from funds collected by the members of the community.
The applicant's objective at the time was to kill members of the Toaster Gang in line with a standing command to do so. He did not personally know the deceased nor the other two members pointed out by Nhlanhla but believed Nhlanhla and relied on his information about their identity as gang members. As these gang members were openly armed with firearms and outnumbered him he decided not to use his firearm but rather to follow them at a safe distance with a view to getting an opportune moment to kill them. He followed them until they went into house no.25 Esongweni Section, which was a Tavern and sold liquor.
When the alleged members of the Toaster Gang entered the Tavern the applicant observed their movements from a distance. The said members bought alcohol and sat outside the premises of the Tavern with their weapons leaning against the wall.
He thought this was an opportune moment to confront them and kill them. When the applicant confronted the alleged members of the Toaster Gang, the deceased tried to reach for his firearm and the applicant then shot him. He was unable to accomplish the objective of shooting the other alleged members because they ran away.
Mrs Buthelezi, the deceased mother gave evidence and opposed the application on the basis that the deceased was a member of the Toaster Gang and that at the time of his death, the Gang was no longer active in Tembisa. She averred that she did not stay with the deceased. The deceased lived in Mtambeni Section with his grandmother particularly after January 1993 until his death whilst she lived at Moeti Section.
Having regard to the basis of her opposition this Committee is satisfied that Mrs Buthelezi is not in anyway whatsoever able to admit or deny the allegations that her son was a member of the Toaster Gang as he was not staying with her at all times relevant hereto. To that extent the evidence of the applicant that the deceased was pointed out to him by Nhlanhla as such a member stands uncontradicted and in the absence of any evidence to the contrary we have to accept the evidence of the applicant.
Furthermore it is common cause that the Toaster Gang remained in operation in Tembisa in 1993 and her evidence that the gang was no longer in operation at the time of he son's killing cannot be accepted.
We have already alluded to the applicant's evidence with regard to the objective sought to be achieved when he followed the alleged members of the gang and ultimately killed the deceased and we do not propose to repeat that evidence as well as the policy or standing command of the SDUs towards the killing of their political opponents in their battle for political hegemony in Tembisa.
Having considered all the evidence before us we are satisfied that the offences for which amnesty is sought by the applicant are acts associated with a political objective as defined in the Act and that the applicant has complied with the requirements of Section 20(1) of the Act.
In the premises Amnesty is GRANTED to the applicant for the following offences:
1. The killing of Boy Buthelezi;
2. Attempted murder of the two unknown alleged members of the Toaster Gang;
3. Unlawful possession of a firearm and ammunition.
We are of the opinion that the family of the deceased and the persons referred to in above are victims as defined in the Act and hereby are referred to the Committee on Rehabilitation and Reparation for consideration as such in terms of Section 26 of the Act.
Dated at..................this ................ day of .....................1999.
..........................................
JUDGE S. KHAMPEPE
.........................................
ADV. F. BOSMAN
.....................................
MR I.LAX
