DECISION
The applicant applies for amnesty in respect of the following offences:-
1. The murder of Simiso Edmund Miya on 29 June 1993 at Umgababa in the district of Umbumbulu.
2. The murder of Francis Bheki Hlatshwayo on the same day and at the same place.
3. The attempted murders of five other people namely; Sibusiso Luthuli; Sipho Sikhumbuso Luthuli, Mzo Mbonambi, Chunky Msiya and Ziswe Mbonambi on the same occasion.
4. The murder of Zwelethemba Wesley Hlongwane on 1 July 1993 also at Umgababa.
5. The assault on Sandile Nkomo on 1 July 1993 at the same place.
The Committee will refer to the offences committed on 29 June 1993 as the first incident and to those committed on 1 July 1993 as the second incident.
The applicant was found guilty of culpable homicide on the two murder charges and of assault with intent to inflict grievous bodily harm on crimes relating to the first incident. He was sentenced to five years imprisonment on each cont of culpable homicide and one year imprisonment on each count of assault. All the sentences had to run concurrently so that he had to serve an effective term of five years imprisonment for crimes related to 29 June 1993.
In the particulars about the crimes contained in his application he stated:-
"All in all they were ten whom we found and beat. Then five were injured. Three died and two ran away".
The applicant stated that the reasons for the attack on the victims were "they were rapists, robbers and killers". He further stated that he is serving a sentence of 13 years imprisonment.
The confusion about the number of victims and the period of imprisonment was cleared up at the hearing. The applicant was in fact sentenced to eight years imprisonment on two other charges. Those charges related to the killing of Zwelethemba Wesley Hlongwane (known as Maphe) and the assault on Sandile Nkomo, which will be referred to as the second incident.
According to the applicant he was the chief Marshall of the area at that stage. Previously he was a member of the UDF but joined the ANC after its unbanning. They formed a self-protection unit and he acted as leader. According to his evidence they had to discipline criminals in the area because the police failed to do so. It was shortly before the 1994 elections and they had to prove to the community that they, representing the ANC as the government in waiting, would be able to protect them. If they did not do that the voters would not trust the ANC and they would lose support in the run-up to the elections.
The applicant further testified that during the morning of 29 June 1993 three girls reported to him that they were raped and gave the names of the perpetrators. He summoned some of his comrades and they went to seek the persons being accused. They found some of the perpetrators and took them to the sports-ground where the girls and members of the community were waiting. They put the charges to them and decided to punish them. The applicant, members of the community and the three victims then assaulted the accused with sjamboks and sticks.
While they were busy administering the punishment Simiso Edmund Miya and Francis Bheki Hlatshwayo turned up and started firing shots at them. They were, according to applicant, also co-members of the gang whom they sought to punish. The community dispersed and fled. He took up a position behind a tree and when Miya came running past, he felled him to the ground with a knobkierie. the same happened to Hlatshwayo. According to him the community then joined him in the assault on the two. They later died as a result of the injuries sustained. The next day he went to their respective houses and explained the circumstances of their death to the families and apologised to them.
The above is a short summary of the events on the 29th of June 1993. The facts were not really in dispute and on the evidence it seems to be associated with a political objective.
The applicant then testified about the second incident. He said that this occurred on the following day at a stage when he was already aware that two of the victims who had been assaulted on the previous day had died. All the other witnesses testified that the second incident happened on 1 July 1993 and not 30 June 1993. It was later conceded by the applicant that 1 July 1993 was probably the correct date.
Applicant stated that between 07H00 and 08H00 on the relevant day, 1 July 1993, he received a report that a certain Ms Thokazani was raped by one Etosh Nkomo. They went and summoned Nkomo to accompany them and they followed the same procedure as on 29 June. He was accused of raping Thokazani and thereafter lashes were administered.
After they had summoned Nkomo to accompany them Maphe and Hlongwane voluntarily joined them. At the gathering a member of the community accused Maphe, Zwelethemba Wesley Hlongwane, of stealing a motor car belonging to one Themba. The applicant said that he sent for the owner who, on arrival, confirmed this and stated that he retrieved the car but that the engine had been removed. According to him all the people insisted the Maphe should also be punished.
While he and some of the members present were in the process of punishing and assaulting Nkomo he heard shouts that Maphe was running away. Members of the community gave chase and he realised that they may harm him if they got hold of him. He was still busy punishing Nkomo and did not partake in the chase of Maphe. He was not aware of the fact that he was caught and assaulted and only heard on the following day of his death.
He further stated that the victims were former members of the ANC who defected and joined the PAC. He did not act on orders but acted as chief Marshall protecting the community. He proceeded with the second incident after he had known that two of the previous assault victims died as a result of the assaults on them but took care that the alleged rapist whom he punished was not assaulted to such an extent that death might ensue.
Sipho Hlongwane, the father of the deceased, Maphe, then testified that he himself as well as the deceased were co-members of the ANC. He saw the applicant and a group of youngsters passing his house and on their return his son, Maphe, was in their company. He thought they were on their way to play soccer.
He later received a report from one, Paul, that his son was killed and went to the scene where they found his body. He testified that he is of the opinion that his son was killed out of hatred and that the applicant did not visit him after the incident to explain or to apologise. According to him the deceased, who worked as a motor mechanic, did repairs on Themba's car and kept the car as security for payment. A charge of theft was laid but later withdrawn after the deceased and Themba came to an agreement.
Sibusiso Luthuli, also testified about the assaults in the first incident. His evidence differs in certain respects but the Committee does not find it necessary to deal in detail therewith.
Dickson Miya, a brother of one of the deceased in the first incident could not throw light on the reasons for the killing of his brother, who, according to him, was a co-member of the ANC.
Etosh Ngoma, the assault victim, in the second incident, incident also testified. Except for denying that he raped Ms Thokazani, he broadly confirmed the assault on him. He, however, stated that the applicant left the assaults to be carried out by other community members and took part in the chase after Maphe.
Martin Mamela confirmed the assaults on the first day. He, however, said that both deceased were assaulted while sitting on the ground and denied that there were any gun-shots.
The witnesses differed about the time period over which the assaults took place. They, however, seem to agree that it lasted from round about 09H00 to lunch time.
Mr Makhatini testified that he served on the executive of the ANC branch at Umgababa. He, to a large extent confirmed the applicant's version about punishing the victims for their criminal activities. He was not present on 29 June 1993. He did, however, attend on 1 July 1993. He said that Ms Thokazani confirmed that Nkomo raped her and that was the reason for punishing Nkomo. He further testified that they were aware of the previous deaths and did not want to kill. He personally took the knobkierie from the applicant to prevent a recurrence of the events on 29 June 1993.
He confirmed that Themba was called to explain about his car being stolen by Maphe. He stated that Themba told the community that the problem had been resolved and that there was no reason for punishing Maphe. The crowd was still angry and threatening and that might have been the reason for Maphe starting to run away and being pursued by some. He emphatically denied that he or the applicant took part in this chase. There was no need to punish Maphe because it was explained that the matter had been resolved. He said that the applicant who sent for Themba and questioned him would not have been aware that Themba told them that the dispute about the car had been resolved and that there was no need for punishment.
Before dealing with the first incident we find it necessary to deal with the legal issues that we have put to the representatives.
On the applicant's and Makhatini's evidence the applicant did not take part in the killing of Maphe. He had no intention to kill Maphe and did not assault, pursue or in any way form part of his killing. If that is so it is clear that he committed no offence in respect of which amnesty can be granted. It was not suggested by the legal representative of the applicant or the victims that he had common purpose with the killers of Maphe to murder the deceased. The leader of evidence, as was his duty, requested the Committee to consider whether there was not indeed common purpose on the part of the applicant to kill.
As stated in S v Mgedezi and others 1989 (1) SA 687 (AD) in the absence of proof of a prior agreement to kill the victim, a person who did not contribute causally to the killing or wounding of the victim can only be liable on the basis of common purpose if certain prerequisites are satisfied.
1. He must have been present at the scene where the violence was committed;
2. he must have been aware of the assault;
3. he must have intended to make common cause with those actually perpetrating the assault;
4. he must have manifested his sharing of a common purpose with the perpetrators by himself performing some act of association with the conduct of the killers;
5. he must have had the requisite mens rea. He must have intended the deceased to be killed or he must have foreseen the possibility of him being killed and performed his own act of association with recklessness as to whether or not death was to ensue.
We do not know what the evidence before that trial court was and on what basis the applicant was found guilty. The Committee is not sitting as a court of appeal. On the applicant's own evidence and the evidence of Makhatini he did not associate him with the killing in any way at all. On his evidence he committed no offence insofar as the killing of Maphe is concerned.
Apart from the reasons stated above it would be totally disproportionate to impose the death sentence on a person who retained possession of a motor car after repairing it and who later had settled the dispute with the owner of the vehicle, in order to pursue the political objective of election support for the ANC. The ANC also never ordered or instructed or condoned this killing.
In the result amnesty is GRANTED in respect of the following offences:-
1. The murder of Simiso Edmund Miya on 29 June 1993 at Umgababa in the district of Umbumbulu.
2. The murder of Francis Bheki Hlatshwayo on the same day and at the same place.
3. The attempted murders of five other people, namely; Sibusiso Luthuli; Sipho Sikhumbuso Luthuli; Mzo Mbonambi; Chunky Msiya and Ziswe Mbonambi on the same occasion.
4. The assault on Sandile Nkomo on 1 July 1993 at the same place.
Amnesty is REFUSED in respect of:-
The murder of Zwelethemba Wesley Hlongwane on 1 July 1993, also at Umgababa.
Signed at Cape Town on this the 3rd day of March 2000.
__________________ Judge A Wilson
__________________ AJ C de Jager
__________________ Mr J B Sibanyoni
