DECISION
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The applicants apply for amnesty in respect of:
the attempted murder of Sipho Ndlovu at Sweetwaters;
an attack upon unknown persons at Jesmondene;
the murder of Solomon Dlamini on 19th November 1992 at Shongweni;
the murder of Sathanathum Padayachee on 29th November at Pietermaritzburg;
the murder of Sipho Zulu on 3rd December 1992 in the Claridge area;
and the murder of Jeffrey Durugiah on 21st April 1993 at Umkomaas.
Anilraj Singh( 1st applicant) and Praveen Ramdas ( 2nd applicant) were, at all relevant times, members of the South African Police (the SAP). They were both stationed at the Mountain Rise police station where the 1st applicant held the rank of constable and the 2nd applicant that of warrant officer.
Both the applicants testified that they, on separate occasions during 1990, attended a Specialised Weapons, Arms and Tactics course ( a SWAT course) which was conducted by the SAP.
They state that they were indoctrinated at that course. They, who were both Inkatha Freedom Party (IFP) supporters, were told that the African National Congress (ANC) were the enemy, that ANC members targeted and killed policemen and that, should the ANC gain power and govern the country, their jobs as policemen would be in jeopardy.
After the SWAT course and after a fellow policeman had been killed in the presence of the 2nd Applicant while he was on duty, the 2nd Applicant decided to form a " private hit squad". He discussed the matter with the 1st Applicant and they agreed that it would be a good idea to form a hit squad. They then approached other members of the SAP who were stationed at Mountain Rise and they formed their hit squad. The initial members were the applicants, constable Ndaba, constable Mchunu and constable Williams. The hit squad, according to the applicants, was assisted from time to time by other persons, including constable Maistry, constable Aiyer, constable Mohammed, all of whom were also stationed at Mountain rise, and Nilesh Singh, a relative of the 1st Applicant.
The applicants state that the aims of the hit squad was to "disperse and conquer" the ANC in the area and to eliminate ANC trouble causers. They say that they made contact with a local IFP leader in the Harewood area, one Skiza Zuma, who provided them with firearms and who at times gave the names of the ANC supporters who were to be executed.
Their first operation was an attack on one Sipho Ndlovu at Ghanda-Ghanda location in the Sweetwaters area. The 2nd Applicant states that Ndlovu's name was given to him as a target by the said Zuma via constable Ndaba. Sipho Ndlovu was allegedly an ANC warlord who instigated attacks on the IFP members. The applicants, together with constables Ndaba and Mchunu, went to Ghanda-Ghanda location. Constable Ndaba, who was dressed up as a woman , and constable Mchunu proceeded to the house of Mr Ndlovu and the applicants remained some distance away as back-up cover for them. Constable Ndaba knocked at the door of the house and when it was opened by Mr Ndlovu he shot him at close range. Mr Ndlovu fell to the ground. The extent of the injuries suffered by Mr Ndlovu is not known.
The next incident took place at Jesmondene informal settlement which, according to the applicants, was an ANC stronghold. One night two friends of the 1st Applicant, Isaac and Joe, who were IFP members, were attacked by a number of people at Jesmondene. The 1st Applicant, who happened by, intervened and the attackers ran away. The 1st Applicant reported to the 2nd Applicant who ordered that there should be revenge attack on the inhabitants of Jesmondene.
The next night the applicants together with constables Williams, Ndaba, Mchunu and Mohammed as well as Isaac and Joe went to Jesmondene. They came across a group of men who were sitting around a fire. Constable Ndaba fired shots at them and they ran away. It is not known if anyone was injured in the incident.
The next incident in which the hit squad was involved was the killing of Solomon Dlamini, a taxi operator. The applicants testified that Mr Dlamini was one of the leaders at the taxi- related disturbance which took place in Pietermaritzburg during October 1991. He, at the scene of disturbance, spoke through a loudhailer and threatened IFP supporters and claimed that he was a trained MK cadre. Thereafter, during March 1992 , the ANC held a march at Freedom Square, Pietermaritzburg. The applicants state that during the march ANC cadres in camouflage uniform burnt the national flag and that this distressed them. They also stated that the police received a fax that day in which it was stated that MK cadres would shoot policemen. The applicants then, on that day, decided that Solomon Dlamini should be killed. They state that they then made several unsuccessful attempts to locate him. They found him at his home on 19th November 1992. They took him to the Shongweni bridge. Present were applicants and constables Williams, Mchunu, Ndaba and Maistry. At the bridge he was shot several times by constable Williams. He was not killed by the shots. He was then thrown over the bridge. The applicants estimate the bridge to be approximately 1500 metres above the river and ground below it.
Mr Dlamini had laid a charge of malicious intention to damage property against constable Maistry. The charge related to an incident in which constable Maistry and a constable Budrum (who is since deceased) allegedly caused damage to his taxi.
On 19th November 1992, shortly before the abduction of Mr Dlamini, constable Maistry showed the 2nd applicant the summons he had received to appear in court in regard to the said charge. The applicants state that the charge laid against Mr Maistry by Mr Dlamini in no way influenced them in their decision to kill Solomon Dlamini.
Their next operation was the murder of Sathanathum Padayachee which took place at Pietermaritzburg on the 30th November 1992. The 1st Applicant stated that constable Ndaba brought him a note from the said Zuma as well as the sum of R5000,00. The note contained the names of the three people who were to be killed, namely Mr Padayachee, a Mr Khan and one Zodwa. According to Ndaba, Mr Padayachee was to be killed as he was a financial advisor to the ANC members. Zodwa was to be killed because she formally lived in an IFP area but was now living with Mr Padayachee. It was suspected that she was passing on information about the IFP members to the ANC via Mr Padayachee. The note was shown to the 2nd Applicant who ordered that the three persons mentioned therein be killed. Endeavours to find Mr Khan failed and he was never attacked.
On 30th November 1992 the 1st Applicant, constable Mchunu and constable Ndaba went to Padayachee's house. Mchunu and Ndaba went to the house and knocked on the door. They could not gain entry into the house as there was a safety chain on the door. They were therefore not able to kill Zodwa. She disappeared after the incident and was not seen again by any members of the hit squad. Zodwa was the girlfriend of Constable Ndaba prior to her living with Mr Padayachee.
With regard to the R5000.00 received from the said Zuma the testimony of the applicants given at the hearing of this matter was to the effect that the 1st Applicant was told by Ndaba that the money was a payment for services rendered. He then divided it and gave R1 000.00 to each of the five members of the hit squad. The 2nd Applicant, who was the leader of the squad, was very upset about this as he knew that the money was meant to be used to purchase weapons and equipment. He demanded that the 1st Applicant recover the amounts that had been given to the other members. This was done and the 2nd Applicant then used the R5000.00 to purchase weapons and equipment. He states that he purchased two telescopes, two silencers and .22 pistol and that he also paid to have the barrel thereof threaded.
In a written statement submitted together with his application for amnesty the 1st Applicant stated the following concerning the R5000:
"Seeing that this was a big job (the proposed assassination of Messrs. Padayachee and Khan and Zodwa) and previous 3 attacks went according to plan Ndaba brought back a sum of R5000 to us and said that Zuma sent this to us as an incentive for good work. Warrant officer Ramdas, Williams, Mchunu, Ndaba and I each took R1000 for ourselves".
He made no mention in the statement of him and the others having to hand the money over to the 2nd Applicant in order that it be used to purchase weapons and equipment. The 2nd Applicant made no mention at all of the R5000 in his statement which was submitted by him together with his application form for amnesty.
When asked to explain these differences between their testimony and their written submission, both applicants stated that their written statements had been completed in a hurry in order to meet the deadline for the submission of amnesty applications. They further stated that they previously made statements which were submitted to the Truth and Reconciliation Commission (TRC) in which they explained that the R5 000 was ultimately used to purchase weapons and equipment, but they were informed by the TRC that such statements had been lost.
The penultimate operation of the hit squad was the murder of Sipho Zulu which took place on 3 December 1992 at Claridge. During May 1992 the 1st Applicant was attacked by a group of people who tried to rob him of a shotgun. Included in the group of attackers was Sipho Zulu and his brother, Petrus Zulu. During this incident the 1st Applicant shot and killed Petrus Zulu and injured Sipho Zulu and one Muzi. The 1st Applicant states that Sipho was an ANC activist and the other attackers were ANC comrades. Sipho Zulu swore revenge and threatened that he would kill the 1st Applicant. The 2nd Applicant then ordered that he should be killed.
On 3 December 1992 Sipho Zulu was seen in the near vicinity of the 1st Applicant's home. The 1st Applicant, constable Mchunu and constable Ndaba caught him, put him in a motor vehicle and drove off with him. They picked up constable Williams and drove to a cane field in Claridge. In the cane field Sipho Zulu was throttled by constable Williams and shot several times by the 1st Applicant. He died. They left the body in the cane field.
The next day the 1st Applicant together with constables Ndaba, Mchunu, Aiyer and Mohammed went to bury the body. Ndaba, on seeing the body with his eyes open, ran away. The others took the body to a place in Bakerville where they buried it.
At the time of the death of Sipho Zulu a civil claim for R30 000 instituted by him against the 1st Applicant was still pending.
The last incident involving the hit squad was the murder of Jeffrey Srinivasen Durugiah on 21st April 1993 at Umkomaas. Captain Durugiah was a superior officer of the 2nd Applicant at Mountain Rise before his retirement from the SAP. He retired before the 1st Applicant joined the Force. The applicants state that he was an ANC sympathiser who fraternised with ANC activists. They believed that he was passing sensitive information about police procedures on to the ANC. It was for this reason that the 2nd Applicant decided that he should be killed.
On 21st April 1993 the 1st Applicant, 2nd Applicant, constable Mchunu, Williams and Aiyer and Nilesh Singh proceeded to Umkomaas in two motor vehicles. One was an SAP vehicle and the other was a vehicle that could achieve very high speeds which was owned and driven by Nilesh Singh. They went to Captain Durugiah's house. Mchunu and Aiyer went to the front door and knocked thereon. The applicants stood at the gate of the property. When Captain Durugiah opened the door he was shot at by both Mchunu and Aiyer. He died as a result of the shooting.
During 1988, Captain Durugiah was the investigating officer in a case against the 2nd Applicant which led to the 2nd Applicant being convicted of perjury. The conviction was set aside on appeal by Appellate Division of the Supreme Court during 1993. The 2nd applicant states that he was not influenced in his decision to kill Captain Durugiah by the role played by captain Durugiah in the perjury case.
The applicants were charged and convicted in respect of the murders of Solomon Dlamini, Sathanathum Padayachee, Sipho Zulu and Jeffrey Durugiah. They are both presently serving long terms of imprisonment.
Section 20(1) of the Promotion of National Unity and Reconciliation Act, No .34 of 1995 (the Act) provides that the Committee shall grant amnesty if it is satisfied that the application complies with the requirements of the Act; that the act or offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past, and that the applicant has made a full disclosure of all relevant facts. Section 20(3) of the Act provides, inter alia, that an act or offence associated with a political objective does not include any act or offence committed by any person who acted for personal gain or out of personal malice, ill-will or spite directed against the victim of the acts committed.
The applications of the applicants comply with the requirements of the Act in the sense that the relevant application form was duly completed and attested to and timeously submitted. We are, however, after consideration of all the evidence before us, not satisfied that the applicants have made a full disclosure of all relevant facts or that the offences committed by them were acts associated with a political objective as contemplated by the Act.
We do not accept the evidence of the applicants that their sole motive in the killings of Messrs. Dlamini, Padayachee, Zulu and Duragiah was political. In each of these instances there is undisputed evidence that the applicants or some of their colleagues who assisted them in the killings (Maistry and Ndaba) had reasons other than political to target their victims. The disposal of the bodies of Messrs Dlamini and Zulu is also inconsistent with a political assassination.
It is also, in our view, inconceivable that a private political hit squad would make use of persons who were not members thereof as co-perpetrators in their crimes.
Both the applicants stated that they were supporters of the IFP. The 1st Applicant stated that he became a member thereof during 1993 and it is clear from the 2nd Applicant's membership card, which was handed in at the hearing of this matter, that he became a member during 1998. There is no evidence before us that either of the applicants was politically active within the party, that they attended political meetings and gatherings or that they were even aware of the policies and ideologies of the IFP. The only evidence of them having contact with a person in a leadership position was within the Harewood area, and who provided them with hit lists and with arms and money to purchase arms.
In his statement, which was submitted together with his application for amnesty, the 1st Applicant stated that Mr Zuma paid them an amount of R5000,00 as an "incentive for good work" and that the members of the hit squad, namely, the applicants, Williams, Mchunu and Ndaba each received R1000,00 thereof for themselves.
Also at page 20 of such statement, the 1st Applicant states the following:
"During judgment by Justice Andrew Wilson he called us the accused, "hit men for hire" and described the murders not as killings but as "execution" style killings, this we do not deny as we accepted a sum of R5000.00 from Chief Skuza Zuma of the IFP for shooting Sipho Zulu and Mr Padayachee and attempting to shoot two others."
At the hearing of this matter both the applicants acknowledged receiving the R5000,00 from Mr Zuma but stated that it was used to purchase firearms and equipment.
The explanation given by the 1st applicant concerning these differences is that the written statement before us is a hurriedly composed shorter version of the original statement submitted by him, which original statement was lost by the Truth and Reconciliation Commission. He states further that he made mention of the fact in his original statement that the monies received from Mr Zuma were used to purchase equipment. This explanation is rejected by us as being false. It is clear from the records that the original submitted by the 1st Applicant with his completed application form for amnesty (which was dated 7th May 1997) was mislaid. The 1st Applicant's attorneys then supplied the TRC with a copy of the original statement on 26th February 1998. Details of the original statement which was later mislaid were captured on the TRC computer on 22nd July 1997 and included in the details captured are the statements that Zuma paid the hit squad R5000,00 for their "good work" and that the 1st Applicant and others each took R1000 of the money given by Zuma.
The explanation given by the 1st Applicant also does not in any way explain away the admission contained in page 20 of the statement to the effect that the R5000 constituted payment for the murders of Messrs. Ndlovu and Padayachee. In the circumstances we are of the view that such admission must stand.
No records relating to the alleged attack on unknown persons at Jesmondene have been traced. The versions of the attack given by the applicants does not persuade us that the attack was carried out by their " private squad" with a political objective. The fact that Joe and Isaac, who had themselves been assaulted by unknown persons in Jesmondene shortly before the attack as well as constable Afsal Mohammed, who was also a member of the hit squad, participated in the attack leads us to the conclusion that the attack was a random retaliatory attack carried out by a gang rather than a politically inspired operation of a hit squad.
We are accordingly of the view that all the crimes committed by the applicant in respect of which they apply for amnesty were committed out of personal malice or ill-will directed against their victims or for personal gain. Their application for amnesty is therefore REFUSED.
Dated at ........................ this.......... day of ........................... 1999.
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JUDGE S. M. MILLER
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JUDGE R.PILLAY
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MR.W.MALAN
