DECISION
The applications relate to three separate incidents which occurred in the vicinity of Port St. Johns in the then Transkei during 1994. Different configurations of Applicants participated in the different incidents and for the sake of convenience the applications were heard jointly.
At the commencement of the hearing the application of PUMELELE CIVILIAN HERMANS was withdrawn.
The incidents arose from a violent political conflict in the area in question involving the African National Congress ("ANC") and the Pan Africanist Congress ("PAC"). Umkhonto weSizwe ("MK"), the military wing of the ANC, and the Azanian Peoples Liberation Army ("APLA"), the military wing of the PAC, were also drawn into the conflict. All of the Applicants were members of the ANC and some participated in the activities of the Self-Defence Units ("SDU") established by the ANC in the area in question. Some of the Applicants had undergone military training under the auspices of MK. We will now proceed to deal with the individual incidents separately.
KILLING OF MAPIPA
This incident happened on or about 23 March 1994 and it involved only one of the Applicants, namely FUNDISILE GULENI. Guleni was the general secretary of the Port St. Johns ANC branch as well as the chairperson of the tripartite alliance between the ANC, the South African Communist Party ("SACP") and the Congress of South African Trade Unions ("Cosatu") in the area. He was also a member of the Port St.
Johns' SDU and had received military training from members of MK during 1987.
On the day in question the ANC was preparing fro an election campaign which was to be held the following day in Madakeni Location near Port St. Johns. The local MK commander, one Mzwandile, reported that the APLA unit of Mr Mapipa had arrived in Port St. Johns and was preparing to attack the ANC. Later the afternoon Mzwandile reported again that he had seen Mr Mapipa and his unit driving out of town. A number of ANC combatants including Guleni and Mzwandile pursued the Apla unit in a vehicle. The ANC group was armed with a R4 rifle, an Uzzi and a G3 machine gun.
On the way Mzwandile identified the vehicle and the group opened fire on it. The vehicle came to a standstill and Guleni's group approached the vehicle. Mr Mapipa and another male person were found inside the car. The unknown male appeared to be dead. Mr Mapipa was shot and killed by Guleni's group. The group found a shotgun and some ammunition inside the vehicle which they confiscated.
It later transpired that the unknown male person survived the attack and was taken to the hospital where he eventually recovered.
Guleni was subsequently charged for the incident in the Umtata High Court, which trial is presently pending.
We are satisfied that the incident resulted from the political conflict involving the ANC and the PAC at Port St. Johns at the time. Guleni was clearly acting within his capacity as a member of the ANC as well as the SDU in the area in participating in the attack.
In all the circumstances we are satisfied that the application complies with all of the requirements of the Act and amnesty is accordingly GRANTED to FUNDISILE GULENI in respect of the following offences committed on or about 23 March 1994 at or near Port St. Johns:
1. The murder of Mr Mapipa;
2. Attempted murder of an unknown male PAC and APLA member;
3. Unlawful possession of firearms including a R4 rifle, an Uzzi and G3 machine guns;
4. Unlawful possession of ammunition;
5. Malicious injury to property in respect of the vehicle of Mr Mapipa.
SHOOT-OUT INVOLVING APLA ATTACKERS
This incident happened on or about 28 March 1994 at or near the high school in Port St. Johns. On the day in question the ANC was holding a workshop for its voting agents with a view to preparing them for the coming general election. The facilities at the high school were perfectly suited for this purpose and the workshop was accordingly held there.
At some point during the course of the day certain persons, who were believed to be members of APLA, started shooting at the school in an apparent attempt to intimidate the participants in the workshop and to disrupt the proceedings. The firing was coming from the direction of the home of a senior PAC member, one Mr Mposelwa, who lived directly opposite the high school premises. Mr Mposelwa was centrally involved in the political conflict in the area.
After the workshop participants unsuccessfully attempted to enlist the assistance of the police, who appeared to have been reluctant to engage the APLA forces, reinforces were summoned from the ANC security department in Umtata. After the ANC reinforcements arrived on the scene, a prolonged shoot out ensued with the attackers until the ANC security personnel eventually managed to evacuate the high school.
Although all of the members who participated on the ANC's side in the shoot out made use of heavy calibre firearms as well as automatic rifles, it is not clear whether any persons were killed or injured on the APLA side during the incident.
The Applicants who participated in the shoot out were FUNDISILE GULENI who was armed with a R4 rifle, MAFANELO DAN MATSHAYA who was a member of the ANC security department and was armed with an AK47 assault rifle, DUMISA MDLULWA also a member of the ANC Security department who was armed with an Uzzi submachine gun and TEMPLETON ZAMEKILE PATO who was an ANC member participating in the election's workshop who used an Uzzi submachine gun which he picked up after it was dropped by one of the APLA attackers during the shoot out.
Having carefully considered the matter, we are satisfied that the shoot-out ensued as a result of the ongoing political violence involving the ANC and the PAC in the Port St. Johns area and that the conduct of the Applicants involved in the shoot-out, was in furtherance of the political struggle against the PAC and APLA at the time.
In the circumstances amnesty is accordingly GRANTED to the abovenamed Applicants who were involved in the shoot out on or about 28 March 1994 at or near Port St. Johns in respect of the following offences:
1. Unlawful possession of firearms, including an AK47 rifle, two Uzzi submachine guns and a R4 rifle;
2. Unlawful possession of ammunition;
3. Any further offence which arises from the conduct of the Applicants during the course of the incident in question.
KILLING OF APLA MEMBERS
This incident happened on or about 20 April 1994 shortly before the first democratic elections in the country.
On the day in question an ANC mass rally was organized at Majola administrative area in the vicinity of Port St. Johns. The rally was to be addressed by General Bantu Holomisa. At about the scheduled time for the rally to commence, information was received by the ANC cadres that there were a number of APLA members on their way to disrupt the rally. A group of the ANC cadres travelled with a van in the direction of the venue for the rally and on the way they met six persons who turned out to be members of APLA. They proceeded to the venue of the rally where they approached some of their leadership including MK commander Mzwandile and informed them about the people whom they had picked up. Some members of the leadership as well as some of the ANC marshals joined the group and the APLA members were taken to the nearby home of one of the ANC leaders where they were questioned. They gave contradictory explanations about their movements which strengthened the suspicions of the ANC members that they had come to attack the rally goers. They were then removed to a more secluded spot for more thorough interrogation.
In the course of the further interrogation one of the ANC group fired at the APLA members. This caused some confusion in the midst of the ANC group and there was some uncertainty as to what should happen to their captives. After some discussions, it was decided that all of the APLA members should be killed. They were all eventually shot, but two of them survived the attack and managed to escape. The rest of the bodies were buried in a mass grave. The incident was reported to the ANC leadership later that same night.
Applicants LUSINDISO POYO, FUNDISILE GULENI and TEMPLETON ZAMEKILE PATO were involved in this incident. Their applications were opposed on behalf of some of the next-of-kin of the deceased but no evidence was tendered in support of such opposition.
In assessing the matter, we are mindful of the criticisms of the applications that were raised on behalf of the next-of-kin of the deceased in opposing the applications. However, having carefully considered the matter we are satisfied that the attack upon the deceased and the surviving APLA members resulted from the general situation of conflict involving the ANC and the PAC in the area. Although no explicit decision was taken beforehand to eliminate the APLA members, it is clear that this was within the contemplation of the ANC members. This is particularly so in view of the fact that the group of ANC members armed themselves with, amongst other things, firearms. Members of the ANC leadership were involved in the incident and they must have been aware of the reasonable possibility that the captured APLA members might be killed. Although the participation of POYO was limited to keeping watch, he was armed with a shotgun and was clearly equally liable for the deaths.
In all the circumstances, we are satisfied that the incident constitutes an act associated with a political objective as envisaged in the Act. We are moreover, satisfied that the Applicants have made a full disclosure of all relevant facts in regard to the incident.
In the circumstances amnesty is GRANTED to LUSINDISO POYO, FUNDISILE GULENI and TEMPLETON ZAMEKILE PATO in respect of the following offences which occurred on or about 20 April 1994 at or near Port St. Johns:
1. The murder of NYAMEKO MAPEKULA, DAVID MVIMBI, EPHRAIM MOHAPE alias MZWANELE MATHIKWE and FALITENJWA RASTA NKANYEZI;
2. Attempted murder of MICHAEL RASMENI;
3. Unlawful possession of various firearms including R4 rifles and shotguns;
4. Unlawful possession of ammunition;
5. Any other offences resulting from the incident in question.
In our opinion all of the next-of-kin of the deceased as well as the other victims identified in this decision are victims in relation to the particular incident for which amnesty has been granted and are accordingly referred for consideration in terms of the provisions of Section 22 of the Act.
DATED at CAPE TOWN this 3rd day of April 2000.
: Judge R. PILLAY
: Judge D. POTGIETER
: Mr J.B. SIBANYONI
