DECISION
______________________________________________________
These are applications 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"). The applications relate to an incident which occurred on the 3rd May 1994 at or near the kraal of Mandlenkosi Amon Sibiya in the Mankwanyaneni Reserve, Empangeni, KwaZulu Natal. On the day in question, a group of men, including Second Applicant, shot and killed Eliakim Makhosi Mthembu and shot and attempted to kill Sibiya. Sibiya subsequently died from an unrelated cause and his interests were not represented at the hearing. The families of the deceased were legally represented in the course of the hearing but did not strenuously oppose the application. Both the applicants testified in support of the applications and no further evidence was tendered at the hearing.
Pursuant to the incident, both applicants were convicted of a number of offences which resulted from the incident and are serving long term imprisonment.
It is more convenient to deal with the position of the Second Applicant who is directly involved in the incident before considering the case of First Applicant. According to the evidence the Mankwanyaneni Reserve was experiencing a violent political conflict involving members and supporters of the African National Congress ("ANC") and the Inkatha Freedom party ("IFP"). Second Applicant is an ANC member who had received military training both inside and outside of the country, presumably under the auspices of uMkhonto weSizwe ("MK"), although this has not been expressly dealt with in the evidence. Second Applicant returned to the country in 1992. As a result of the political conflict, Second Applicant was compelled to flee his home and moved to the eSikhawini area from where he operated as a commander of the ANC combatants in the area. At some stage prior to the incident, Second Applicant received a list of names from his commander Shadrack Mdletshe who was also the chairperson of the ANC in the area. This was a hit list of persons who were destabilising the ANC election campaign in the area and who for that reason had to be eliminated. The names of both Sibiya and the deceased appeared on the list. Second Applicant selected a number of people to assist him in executing this task. A decision was taken that Sibiya should be the first target to be attacked. The plan was put into operation on the day of the incident being 3 May 1994. Second Applicant and the group of combatants whom he had selected to assist him, proceeded to Sibiya's kraal armed with one AK-47 assault rifle and three Makarov pistols. First Applicant was not part of the group and although the group met him on their way to Sibiya's kraal, he was not asked to accompany them although he is also an active ANC member, largely due to the fact that he had no training in the use of bigger firearms which were to be used in executing the plan. At the kraal, the group came across Sibiya as well as the deceased who was travelling in his vehicle at the time. The group opened fire, killing the deceased and only slightly injuring Sibiya. Sibiya was an IFP leader in the area and the deceased an IFP member and businessman who was supplying funds to the IFP for the purpose of purchasing firearms. Second Applicant executed the orders which he received from his superior and received no financial gain or other benefit from the attack. He was motivated solely by the desire to protect his community from being attacked by the IFP.
The First Applicant is more indirectly linked to the incident. He was not present at the scene of the attack and in no way participated in the actual attack. He is, however, an active ANC member who attended various meetings of the organisation where the political violence in the area was discussed. Although it was not stated with perfect clarity, it seems to be clear that the effect of his testimony was that he was present at meetings where the names on the hit list were discussed and a decision taken that these persons had to be attacked and eliminated. First Applicant stated that he was not aware of the fact that these persons were to be killed although he did not know beforehand exactly when this would happen. He fully supported the attack upon the deceased and Sibiya and regarded it as having been undertaken in execution of the resolution of the ANC. He, moreover, indicated that if he had known about it beforehand, he would personally also have participated in the attack.
Having carefully considered the matter, we are satisfied that the attack upon Sibiya and the deceased resulted from the situation of political conflict involving the ANC and IFP and as such constitute an act associated with a political objective as defined in the Act. We are also satisfied that the applicants have made a full disclosure of all relevant facts. It is clear that Second Applicant acted in execution of an order received from his superior in launching the attack in question. Although the matter was open to some debate and the evidence did not canvass the matter in sufficiently explicit terms, we are satisfied on balance that the conduct of First Applicant would render himself legally liable for the attack as a co-conspirator and on the basis of a common purpose with the perpetrators.
In all the circumstances, we are satisfied that the applications comply with all of the requirements of the Act and amnesty is accordingly GRANTED to applicants in respect of the following offences committed on or about the 3rd May 1994 at or near Mankwanyaneni Reserve, Empangeni, KwaZulu Natal:
1. The murder of Eliakim Makhosi Mthembu;
2. The attempted murder of Mandlenkosi Amon Sibiya;
3. Unlawful possession of one AK-47 assault rifle and three Makarov pistols;
4. Unlawful possession of ammunition.
In our opinion the next-of-kin of Eliakim Makhosi Mthembu are victims in relation to the murder and they are accordingly referred for consideration in terms of the provisions of Section 22 of the Act.
SIGNED AT..................THIS.....DAY OF..........2000
____________________________
JUDGE DENZIL POTGIETER
____________________________
ADVOCATE F BOSMAN
____________________________
ADVOCATE N SANDI
