: DECISION
The applicant, born on 20 May 1974, and a member of the Inkatha Freedom Party (IFP), applies for amnesty in respect of the following offences committed at Umbali, district of Pietermaritzburg:-
1. The murder of Vikani Jacobs Sosibo on 3 January 1989;
2. The murder of Stanley Mduduzi on 12 January 1989;
3. The murder of Thokozani Hlela on 13 January 1989;
4. The murder of Linda Moloi on 13 January 1989;
5. The murder of Sibusiso Frank Carrington Mdluli on 16 January 1989;
6. The murder of Bhekizazi Alpheas Gwala on 16 January 1989;
7. The attempted murder of Sibusiso on 27 October 1988 sentenced to 7 years imprisonment;
8. The attempted murder of Joseph Ndodo Duma on 30 November 1988 sentenced to 7 years imprisonment;
9. The attempted murder of Nicholas Ngo Bheikthemba Xulu on 31 December 1988 sentenced to 7 years imprisonment;
10. The attempted murder of Mpumelelo Sithole on 14 January 1989 sentenced to 7 years imprisonment;
11. The assault on Maxwell Bhapa Mbongwa with the intent to cause grievous bodily harm on 21 December 1989, sentenced to 2 years imprisonment;
12. The assault on Mandla Buthelezi with the intent to cause grievous bodily harm on 21 December 1988, sentenced to 2 years imprisonment to run concurrently with the previous sentences.
The applicant was prosecuted and sentenced during 1990. Before dealing with the evidence before this Committee it may be useful to refer to certain remarks by the Trial Judge at the time. It is clear that the Imbali area at the time was literally a war zone. It is significant that the applicant committed seven murders between 3 January 1989 and 16 January 1989. This was preceded by attempted murders and assaults starting at the end of October 1988 up to the time of the murders. All the offences were committed within a less than three months period.
The Trial Judge commented inter alia:
"... the first and most important factor is the state of unrest that has existed in Imbali area since 1987 and which continued unabated to the present day".
He then quoted statistics to prove this.
He stated that it would serve no purpose to try and establish who bears responsibility of initiating the violence. It would even involve a raking up and resuscitating of past animosities for no useful purpose. The fact was that the prevailing unrest, gave rise to numerous cases of murder, arson and other acts of violence not only during the night but also openly during day time, it was an open war between the IFP and the UDF.
The Trial Judge heard evidence of attacks on people because they were believed to be members of the rival political faction. The applicant's own attitude at the trial was that if a person was a UDF member, he was an enemy. He drew no distinctions. He considered all of the victims to have been UDF members and therefore enemies. Where they themselves were not directly identified as members of the UDF strongholds. This was substantiated from the general plan and agreed facts handed in at the trail. The mere fact that a particular person lived in a area occupied by members of a political party was considered to be conclusive evidence of his political affiliation.
The applicant was between 14 and 15 years old when he committed the offences. He passed standard 5. He stayed with his sister whose house was petrol bombed, allegedly because they were IFP members. They left the area and went to stay with his aunt in a predominantly IFP populated area. The applicant then joined the IFP, and was elected as chairman of a youth branch. The IFP leader in the area was Mr Abdul Awetta. The applicant testified that he later received instructions form Mr Abdul Awetta, Mr Jerome Mncwabe and Mr Gasla leading figures in the IFP to attack members of the UDF. He received firearms and ammunition from them. At stages the IFP leaders would arrange for a traditional healer to give them muti. "That would give us a crave to kill and braveness to kill others but be protected at the same time from being shot and killed". The applicant sincerely believes that this is the reason why he wasn't killed in the ensuing battles.
The first incident occurred on the 27 October 1988 and related to the attempted murder of Sibusiso Johnson Sibisi. The applicant testified that he shot and wounded the victim who was residing in Zone One which was regarded as UDF territory. The victim and some of his colleagues, carrying spears, approached him and his colleagues while they were in Zone Two, which was IFP territory. The applicant had no specific instructions to kill Sibusiso, but he knew that he was a member of a UDF contingent who harassed IFP members. He denied that the attack had anything to do with a fight with his girlfriend.
The second incident chronologically related to the attempted murder of Joseph Ndodo on 30 November 1988. According to the applicant Duma was involved in the burning of his sister's house as well as the burning of Mbeki Ngobu's house and the burning of Thu Ngcobo's house. Applicant testified that he received instructions from Gasela to attack the victim. According to the applicant Duma was seen as a highly active UDF member and regarded by IFP's as a priority target. He came across while he was walking in the street and fired shots at him but wasn't sure whether he in fact wounded him or not. It turned out that Duma escaped uninjured.
The third and fourth incidents related to the convictions of assault with intent to cause grievous bodily harm to Maxwell Bhapa Mbongwa and Mandla Buthelezi on 21 December 1988. The victims were respectively wounded in the arm and foot. He shot at and wounded them because they were UDF members and were regarded as members of the enemy who were in terms of the general instructions received from the IFP leaders in Umbali, to be attacked and killed.
The next incident related to the attempted murder of Nicholas Ngo Bhekithemba Xulu on 31 December 1988. According to the applicant he and other comrades were at the house of his uncle, Mr Madlala. He was called out of the house and on reaching the street, saw his comrades involved in a fight with members of the UDF. He started firing shots and the UDF members fled. In the process he wounded the victim. There were also other casualties in this encounter in respect of which other IFP members were sentenced. This clearly was a clash between two opposing warring parties.
On 3 January 1989 the applicant killed Vikani Jacobs Sosibo. According to the applicant the assassination of the deceased was planned at the house of Thu Ngcobo with the latter and Gasela. It was alleged that the deceased used to bring comrades from outside the area to attack IFP members staying in Zone two. He was targeted to be eliminated and the applicant was asked to carry out the elimination. The applicant observed the deceased walking into an alley leading to his house, and shot him.
On 12 January 1989 the applicant killed Stanley Nduduze Shezi. He testified that he had instructions to kill Mpumelelo Sithole. He went during the night of January 12 to carry out the mission searching for Sithole in the vicinity of his home. He came across the deceased and another person and mistakenly in the dark identified the deceased as being the said Sithole. His intention was to kill Sithole and only realised the next day, after speaking to other IFP members, that he had killed the wrong person. His motive was not to kill Shezi, but to kill Sithole who was his political opponent. He, however, subjectively believed that he targeted the political opponent he was instructed to kill.
The next incident occurred on 13 January 1989. The applicant killed Thokozani Hlela and Linda Moloi. On the specific day the applicant, Hoosain Awette and Bheki Zulu accompanied Mr Awette, the local leader of the IFP in his car to Pietermaritzburg. When passing a certain garage the car was shot at and the driver, Hoosain, wanted to stop and immediately pursue the attackers. Mr Awette, however told him to proceed to Pietermaritzburg where he got out. According to the applicant, Awette then instruction them to go back and attack the boys responsible for the shooting. Neither Mr Awette nor any of his co-passengers however, could identify the persons who shot at them. The applicant, Bheki Zulu and Hoosain Awette returned to Umbali. He later added that on their return a group of boys standing near the garage shouted insults to them. He went to his house to get his firearm and asked his friend and comrade, Ndlandla Luthuli, to accompany him back to the garage where the shots were fired at the car on the corner of Mdubu and Mthombothi roads. They referred to the applicants and his companions as "telegwini", a word which was used by UDF members to insult IFP members. The applicant and Ndlandla Luthuli returned on foot to the garage. They saw the two deceased and the applicant shot and killed them.
He didn't know whether the deceased themselves were involved in the shooting at the car or the insults. He, however, knew them to the UDF members. "We were sending a message (so) that people should know and be aware of the fact that when we are attacked, we'll attack back. When we are being shot, we will shoot back as well."
He furthermore testified that the deceased were at the time in Zone One which was UDF territory, that the garage belonged to UDF members. IFP members wouldn't visit this garage because they would be shot at. The area was known to be UDF/ANC territory and IFP members already left the area.
The applicant then testified about the attempted murder of Mpumelelo Sithole on 14 January 1989. The victim was already referred to in connection with the killing of Shezi on 12 January 1989. Applicant testified that he acted on instructions of Jerome Mncwabe. The victim was described as a troublesome person who used to provide UDF members with weapons, and held meetings. On a Saturday morning the applicant and Ndlamlaza waited for the victim near his house. While the victim was driving out of the drive way to his house, the applicant opened fire on him. The car was damaged, but Sithole escaped uninjured.
On 16 January 1989 the applicant killed Sibusiso Frank Carrington Mdluli, Simphiwe Patrick Majozi, only eleven years old, and Bhekizulu Alpheas Gwala.
According to the applicant he was instructed by Jerome Mncwabe to do something that would scare the UDF people living in Zone One to such an extent that they would leave the area. The objective was to cause the UDF people staying in Zone One to flee the area so that it could become IFP territory. He had to go to Zone One and kill people indiscriminately and at random.
The applicant testified that he was told that he need not be afraid of being arrested because the IFP would govern KwaZulu-Natal and he wouldn't stay in prison. He was also given muti to rid him of any fear. The next night he went on the murder spree. In the process he also killed Bongani Sithebe, a 13 year old school mate, but he was acquitted on this murder charge and did not apply for amnesty in this regard. It is indeed horrendous that a 13 year old child should be killed because of politics, but it should be born in mind that the applicant himself was only 14 years old at that stage. The murder of Simphiwe Patrick Majozi, a child of eleven, cannot be regarded as an attack directed at a political opponent. Even though it might have been the intention to drive UDF people out of the zone, the fact that there is no evidence connecting Majozi with the UDF, makes this a senseless murder.
The Committee has summarised the evidence in the preceding paragraphs. The legal representative on behalf of the implicated persons denied that they were involved in any manner and this was recorded. The family of the victims were also represented and had reservations about full disclosure. It seems, however, that they accept that the incidents related to the conflicts of the past and the Committee is aware that gestures towards reconciliation have already been extended between parties notwithstanding the murdering of in some cases, innocent bystanders.
In whatever light one may see the incidents, it remains a fact that all the incidents flowed from the then ongoing political struggle and were associated with the political objective of gaining political turf.
The applicant complied with the requirements of the Act in respect of the following offences committed at Umbali in the district of Pietermaritzburg and amnesty is GRANTED:-
1. The murder of Vikani Jacobs Sosibo on 3 January 1989;
2. The murder of Stanley Mduduzi on 12 January 1989;
3. The murder of Thokozani Hlela on 13 January 1989;
4. The murder of Linda Moloi on 13 January 1989;
5. The murder of Sibusiso Frank Carrington Mdluli on 16 January 1989;
6. The murder of Bhekizazi Alpheas Gwala on 16 January 1989;
7. The attempted murder of Sibusiso Johnson Sibisi on 27 October 1988 sentenced to 7 years imprisonment;
8. The attempted murder of Joseph Ndodo Duma on 30 November 1988 sentenced to 7 years imprisonment;
9. The attempted murder of Nicholas Ngo Bhekithemba Xulu on 31 December 1988 sentenced to 7 years imprisonment;
10. The attempted murder of Mpumelelo Sithole on 14 January 1988 sentenced to 7 years imprisonment;
11. The assault on Maxwell Bhapa Mbongwa with the intent to cause grievous bodily harm on 21 December 1988, sentenced to 2 years imprisonment;
12. The assault on Mandla Buthelezi with the intent to cause grievous bodily harm on 21 December 1988, sentenced to 2 years imprisonment to run concurrently with the previous sentences.
Amnesty is REFUSED in respect of the murder of Majozi, the eleven year old child.
The Committee is also of the opinion that the next of kin of the persons mentioned above and the persons wounded in the attacks should be declared victims in terms of Act 34 of 1995 as amended. The names of the victims are as follows:-
1. Ndodo Duma
2. Maxwell Bhapa Mbongwa
3. Mandla Buthelezi
4. Sibusiso Sibisi
5. Ben Jele
6. Sithembiso Paulo Zondi
7. Bonginkosi Zondi
8. Nicholas Bhekithemba Zulu
9. Hloni Zondi
10. Sikhumbuzo Dorrington Sosibo
11. Jabulani Harvey Shelembe
12. Thokozani Hlela
13. Simphiwe Hlela
14. Dlezakhe Simeon Hlela
15. Percyvale Majozi
16. Caroline Sithebe and
17. Ermelda Nomyalo Jona
Signed at Cape Town on this the 6th day of December 1999.
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JUDGE H. MALL
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ADV. C. DE JAGER S.C. ADV. S. SIGODI
