DECISION
1. INTRODUCTION
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 matter relates to the attempted murder of Sithembele Zokwe ("the deceased") at or near the Transkeian Quarry at Ngolo Administrative Area, Umtata on 8 August 1987 and the eventual murder of the deceased at Cegcuwana Administrative Area, Butterworth on 11 January 1988.
Pumelele Gumengu applies for amnesty in respect of both these incidents, while Aron Tyali only applies for amnesty in respect of the murder. Both Applicants have, however, been charged with both offences and their trial is presently pending.
Applicants have both testified in support of the applications which are opposed by the next-of-kin of the deceased. Mr Mapoma, the leader of evidence, has presented the evidence of Vulindlela Christopher Shologu, a former member of the Transkeian police, who was present during the attempted murder of the deceased. No other evidence was tendered at the hearing.
The respective incidents will now be dealt with in turn.
2. ATTEMPTED MURDER
The evidence in this regard was briefly to the effect that Gumengu, who was a member of the Transkeian Security Police at the time, was engaged in clandestine operations against members of the liberation movements. He operated under the command of the late Captain Mfazwe, who ordered him during the period June/July 1987, to eliminate the deceased who was an enemy of the Transkeian State. The evidence is contradictory on the actual events.
According to the written application of Gumengu he noticed the deceased in Umtata on 8 August 1987 while driving in a vehicle with the witness Shologu and another police officer. The deceased was confronted and ordered to get into the vehicle with them, whereafter they drove to the outskirts of the city and stopped in the vicinity of the quarry. He ordered the deceased to get out of the vehicle and follow him.
After they had proceeded for a short distance, the deceased broke free and escaped. He fired two shots in the direction of the deceased who appeared to have fallen down. He returned to where his two colleagues were waiting and they left the scene.
The version of Shologu, however, casts the incident in a different light. He confirms that the police apprehended the deceased in the vicinity of the Royal Hotel in Umtata and drove to the quarry on the outskirts of the city after the deceased said that there were guns which he can point out. After the vehicle stopped, his other colleagues and the deceased got out of the car. Gumengu was the first to get out and was followed by the others. The deceased was approximately one pace away from Gumengu. He heard the deceased running away and saw Gumengu pursuing the deceased. After a while he heard gunfire. Gumengu returned to the vehicle and said that he shot the deceased who tried to take his gun. Gumengu never got out of the vehicle alone but was followed by the deceased and the other occupants of the vehicle. They all moved in the direction of the dynamite house.
Having considered the matter, we are not satisfied that Gumengu's version is truthful. Apart from the fact that his written application and testimony are contradictory, his version is, moreover, inherently improbable and directly contradicted by Shologu.
We are accordingly not satisfied that Gumengu has made a full disclosure of all relevant facts in regard to the attempted murder of the deceased as required by the Act.
In the circumstances the application of Pumelele Gumengu in respect of the attempted murder of Sithembele Zokwe on or about 8 August 1987 at or near Cegcuwana Administrative Area, Umtata is REFUSED.
3. MURDER
Both Applicants testified in respect of this incident. Their versions largely coincide and are to the effect that on the day in question, 11 January 1988, the deceased was arrested in Butterworth and after interrogation indicated that he had a number of handgrenades at home. The Applicants and some other members of the police took the deceased to his house to point out the handgrenades. The Applicants accompanied the deceased inside the house while the rest of the police guarded the premises. After the deceased pointed out a bedroom where the handgrenades were in, his hands were uncuffed to enable him to unlock the door with a key that was in his possession. This was done in order to avoid any possible booby traps that might have been set for the police. The deceased managed to lock himself inside this room while the Applicants were standing outside in the passage. After a while the deceased opened the door, armed with a handgrenade. Gumengu shouted a warning and dived for cover. He heard some gunshots followed by an explosion whereafter he left the house.
Tyani heard Gumengu's warning after the deceased opened the bedroom door and realised that the deceased intended to throw an handgrenade at them. He fired a number of shots at the deceased and left the house after the latter fell down.
Having carefully considered the evidence and all the other material placed before us, we are of the view that the version of the Applicants in regard to the shooting incident is so inherently improbable that it cannot be accepted as true. The version that the deceased, who was regarded as a highly trained and dangerous terrorist, was uncuffed to open the door and somehow slipped into a room which was expected to contain handgrenades, defy belief.
It is even less plausible that the deceased would subsequently show himself in the open doorway completely exposed to the Applicants whom the deceased must have known, were armed.
In view of the fact that the Applicants are facing prosecution on both incidents forming the subject matter of these applications, we deem it inappropriate to comment too widely on the quality of the evidence. We would simply state that we are not satisfied that the Applicants have made a full disclosure of all relevant facts in regard to this incident as required by the Act.
In any event on the version of the Applicants the deceased was shot in defending themselves against being attacked with a handgrenade. They were accordingly not engaged in eliminating the deceased in accordance with the orders of higher authority to dispose of enemies of the Transkeian State. Moreover, Gumengu took no part at all in the attack upon the deceased nor has he made out a case of association with the elimination of a political opponent in accordance with the provisions of Section 20(2)(g) of the Act.
We are accordingly not satisfied that the applications comply with the requirements of the Act and they are therefore REFUSED.
In our opinion the next-of-kin of the deceased is a victim in relation to the incident and is accordingly referred for consideration in terms of the provisions of Section 22 of the Act.
DATED at CAPE TOWN this 27th day of March 2000.
: Judge D. POTGIETER
: Judge S.M. MILLER
: Mr J.B. SIBANYONI
