DECISION
The applicant applies for amnesty in terms of Section 18 of the Act in respect of the following offences:-
1. Murder of Nicholaas Masango Tshabalala;
2. Murder of Masango Nimrod Nkumanda;
3. Murder of Jabulane Mngoma;
4. Attempted murder of Mbulelo Kapu;
5. Unlawful possession of a firearm and ammunition;
6. Unlawful possession of explosives;
committed on the 20th January 1989 at Meadowlands in the district of Johannesburg.
The applicant was a member of the ANC and become an operative of Umkhonto weSizwe (MK) in 1986. He received his military training internally under the command of one Oupa Seleheri.
At all material times relevant hereto he was a member of a special unit which was under the command of one Sonwabo which was based in his township Orlando West. This unit consisted of three (3) members, the applicant, Gybon Kubheka and Sonwabo, who was its commander.
The applicant testified that on or about the 20th January 1989 he was ordered by his commander, Sonwabo to identify a place where policemen could be located in order to eliminate them. He had then apprised Sonwabo that the policemen could be found in the area called Meadowlands.
He further testified that it was the policy of the ANC and MK to target policemen in general for elimination, and that when he was ordered to identify a place where these targets could be found, he knew that the objective of such an identification was to eliminate them in line with the policy of his organisation, and associated himself with any acts that would result in the execution of the order to eliminate the targets.
On the day in question, the applicant was in possession of two (2) handgrenades whilst Sonwabo was in possession of an AK 47 automatic rifle, which were part of the consignment of weaponry used by his unit in order to achieve its aforestated objective. They drove for sometime in the area on the lookout for the police until they spotted them near Meadowlands Hostel. They stopped the vehicle a little further from where the police were. Gybon was left in the vehicle whilst the applicant and Sonwabo came out of the car and stealthily approached the policemen on foot. When they were closer to the police Sonwabo commenced shooting at them. One of the policemen managed to run for cover and hid himself behind a motor vehicle parked nearby. Suspecting possible counterfire Sonwabo ordered that they retreat.
As they were retreating he noticed a small group of people approximately six (6) paces away from the scene screaming at them. He is however unable to say whether Sonwabo shot in their direction or not. In any event he was not aware that a civilian had been shot and killed pursuant to their shooting and only became aware thereof during his criminal trial. He contended that it was not their intention to attack any civilian but to attack the police.
It is common cause that two (2) policemen were killed as a result of the shooting with an AK47 used by Sonwabo being Mr Tshabalala and Mr Nkumanda. The 3rd policemen, Mr Kapu though shot at and sustaining injuries, was fortunate not to die. Regrettably Mr Kapu died sometime later in an unrelated incident. A civilian Mr Mngoma also died in this shooting incident.
Evidence was led at the applicant's criminal trial that Mr Mngoma was found approximately 30 metres away from where the other two (2) dead policemen were found, with multiple AK47 shot wounds. Further evidence showed that the two policemen were killed near a shopping complex. Having regard to this evidence it is quite conceivable and probable that Mr Mngoma was shot at from the burst of gun fire that was intended for the three (3) policemen; that he was accidentally shot at whilst the applicants and Sonwabo were pursuing their objective of killing the 3 targeted policemen but was caught in the line of fire specifically intended for these targets. It is therefore quite clear that his death was accidental and unfortunate.
In the light of the above, it is our view that the civilian Mr Mngoma was not intentionally shot at by Sonwabo and his unit.
Having regard to all the evidence before us we are satisfied that the applicant participated in the killing of Mr Tshabalala and Nkumanda and the attempted murder of Mr Kapu in the execution of an order given to him by his commander Sonwabo and that he bona fide believed that the killing of the policemen would further the political struggle which was waged by his organization against the National Party led government.
In as much as the applicants did not intend to kill Mr Mngoma they should and ought to have foreseen that the shooting of the policemen near a shopping complex might result in the members of the public being caught in the line of fire but proceeded to fire an automatic gun reckless as to the consequences. Their actions would therefore constitute an offence or delict in terms of the Act.
Since, Mr Mngoma was killed whilst the applicant and his colleagues were in pursuance of a political objective of killing the policemen, as already alluded to hereinabove and his death resulted from the same fusillade of AK47 shots which were intended for and directed at the targeted policemen, it is our view that he qualifies for amnesty in respect of his death.
Amnesty is therefore GRANTED to the applicant for the following offences:-
1. Murder of Nicholas Masango Tshabalala;
2. Murder of Masango Nimrod Nkumanda;
3. Murder of Jabulane Mngoma;
4. Attempted murder of Mbulelo Kapu;
5. Unlawful possession of a firearm and ammunition;
6. Unlawful possession of explosives;
committed on the 20th January 1989 at Meadowlands in the district of Johannesburg.
We are of the opinion that the relatives of the deceased Nicholas Masango Tshabalala, Masango Nimrod Nkumanda and Jabulane Mngoma and Mbulelo Kapu are victims as defined in the act and hereby recommend that they be referred to the Committee on Reparation and Rehabilitation for consideration as such in terms of Section 26 of the Act.
We may tangentially commend the applicant for having been able, during his viva voce evidence, to express his great remorse and regret for the harm which he had caused to the families of the deceased and the victim. He stated that the apartheid policy turned him into the killer he was and that but for the apartheid policy he would not have killed. He averred that the untenable political conditions which had existed in the country had driven him to do what he did. In a moving rendition he apologised to the families of the deceased for the harm he had caused, the suffering to which he had subjected them and hoped that the new political dispensation would usher the peace and respect for human life which any normal society should and ought to enjoy.
Signed on the
: day of
: 1999.
Judge S. Khampepe Adv. F. Bosman Mr I. Lax
ANNEXURE A
Committee: Khampepe J, Adv. F. Bosman and Mr I. Lax
Date of Hearing: 13 - 14 July 1999
Venue: Methodist Central Church, Johannesburg
Evidence Leader: Thabile Thabethe
Legal Rep for the Applicant
Shai Attorneys and Associates
Mr Kgama Gladden Shai
P.O. Box 4277
GERMISTON SOUTH
1411
Telephone no: (011) 873 9998/4 or 083 750 3992
Fax no: (011) 873 1691
Legal Rep for the Victims: Ms Thabile Thabethe (TRC)
