DECISION
This is an application for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 ("the Act") by XOLANI MNGUNI, an adult male, born on 5 November 1964. The application relates to an incident which occurred during the morning of 29 November 1991 on the train travelling between Soweto and Greater Johannesburg when Applicant and one, Gap Lamola, attacked and killed Matsobane William Aphane.
Due notice of the hearing was given to the next-of-kin of the deceased who are not opposing the application.
Applicant testified in support of the application. The salient features of his evidence are that at all material times he was a member of the Inkatha Freedom Party ("IFP") and the chairperson of the Mfolo North branch of the IFP Youth Brigade. The IFP was engaged in a violent political conflict with the African National Congress ("ANC") in the Witwatersrand area which resulted in extensive loss of life. Many IFP members known to Applicant were killed during this conflict. Applicant was employed in Johannesburg and regularly travelling to and from work by train. Specific sections of the train were habitually occupied by IFP and ANC members respectively. The first coach from the front of the train was occupied by ANC members and the second one by IFP members. The third coach was occupied by persons who conducted church services. The rest of the train was in general use by commuters. Applicant always travelled in the IFP coach.
On 28 November 1991 while travelling from work a meeting was held in the IFP coach under the chairpersonship of an IFP member, one Radebe, who was the chairperson of the IFP Youth Brigade branch at Morafe Hostel. Radebe indicated that the IFP was being destroyed by the ANC and he instructed IFP members to start killing any ANC person they come across as from the next day.
The next morning, Friday 29 November 1991, Applicant boarded the usual train for work. At one stage during the journey while he and Gap Lamola were positioned close to the connection between the IFP and ANC coaches a man standing in the ANC coach taunted the IFP by levelling insults at its leader, Dr. Buthelezi. Gap grabbed hold of the person and they engaged in a scuffle. Gap was armed with a knopkierie and Applicant with an umbrella. In the course of the struggle Gap blocked the way into the ANC coach and trapped the man between the two coaches. Applicant and Gap attacked the man who fled into the IFP coach and eventually into the next coach where the church service was being held. Applicant and Gap continued assaulting the man who landed up at the open door of the coach holding onto a vertical metal rail between the floor and the roof of the coach while his body was hanging outside the moving train. Applicant continued assaulting the man with the umbrella causing him to loose his grip on the metal rail and falling out of the train. That evening while travelling from work Applicant heard in the IFP coach that the man was killed.
Some days after the incident Applicant was arrested and charged with the murder of the deceased. He was convicted of murder and sentenced to death on 22 February 1993 in the Witwatersrand Local Division of the then Supreme Court in case number CC120/92. This sentence was later commuted to life imprisonment. Gap Lamola was never arrested or tried for the murder.
Applicant was convinced that the deceased was an ANC member in view of his conduct and the fact that he occupied the ANC coach. In his view the killing was justified in view of the prevailing circumstances and was in accordance with the decision taken in the meeting of the previous night. Having reflected on the matter, Applicant deeply regrets the incident and finds it very difficult to face the next-of-kin of the deceased.
Having carefully considered all of the evidence and material placed before us, we are satisfied that Applicant has made a full disclosure of all relevant facts and that the murder was an act associated with a political objective in accordance with the provisions of the Act. Even though the then chairperson of the Mfolo North branch of the IFP, Mr Madoda Nkabinde, indicated in an affidavit submitted to the Amnesty Committee that the IFP never instructed its members to kill people, we are satisfied in the circumstances that Applicant held the bona fide belief that his actions were in accordance with the orders of the IFP and were in furtherance of the political struggle of the IFP against the ANC. This conclusion is reinforced by the supplementary affidavits submitted on behalf of Applicant.
Applicant is accordingly GRANTED amnesty for the murder of Matsobane William Aphane on 29 November 1991 at or near Johannesburg.
In our opinion Motoro Jan Aphane and Lesetja Johannes Ledwaba are victims in relation to the murder and the matter is referred for consideration in terms of the provisions of Section 22 of the Act.
DATED at
: this
: day of
: 1999.
Judge DENZIL POTGIETER
Adv. L. GCABASHE
Dr. W. TSOTSI
