DECISION
The applicant applies for amnesty in respect of the murder of Babulo Joseph Mthethwa, Hlaluhlomile Alphios Mabaso, Sitezi Dadada Ndimande and Johannes Hlatshwayo and the attempted murder of Msawenkosi Cele and Joseph Mphikiseni Nojiyeza.
The applicant states that during 1992 he was the youth organiser of the Inkatha Freedom Party (the IFP) at Isitengi in the Matata area of Ndwedwe. He testified that political conflict between supporters of the IFP and the African National Congress (the ANC) was prevalent in the Matata area and that during or about July 1992 a large number of ANC supporters from Ngonweni, which is also in the Matata area, attacked and killed a Mr Luthuli who was an IFP supporter and the father of applicant's friend Linda Luthuli. After that attack the applicant left the Matata area and went to reside in Lindelani. He stated that just before February 1993 he was approached by one Bhuquza Mbonambi, a local leader of the IFP, who instructed him to arrange an attack on the Mthethwa house at Ngonweni which was an ANC stronghold. Thereafter, on 2 February 1993, the applicant, Linda Luthuli, Zitha Zulu and Ndumiso Songweni, all IFP supporters, proceeded to the Mthethwa house at Ngonweni. The applicant, Linda Luthuli and Zitha Zulu were each armed with a knife and a firearm and Ndumiso Songweni was armed with a spear and a firearm.
They arrived at the Mthethwa house at approximately 15h00 and saw a group of approximately twenty people sitting under a tree. They attacked this group by charging in and stabbing randomly at their victims. They then fled from the scene, firing shots into the air. Hlaluhlomile Alphios Mabaso, Babulo Joseph Mthethwa, Sitezi Dadada Ndimande and Johannes Hlatshwayo were all killed in the attack. Msawenkosi Cele and Joseph Mphikiseni Nojiyeza were both inflicted with bodily injuries.
Linda Luthuli also testified at the hearing of this matter. He stated that he was an IFP supporter and confirmed the applicant's evidence that there was political conflict between the ANC and the IFP in the Matata area. He left the area and went to reside in a hostel at KwaMashu after his father, a Mr Sithole and a boy from the Zulu family were killed by ANC supporters during July 1992. His evidence regarding the instruction to attack and the actual attack on the Mthethwa house was in line with that of the applicant. He explained that he did not apply for amnesty in respect of the attack as he was illiterate.
Both the applicant and Linda Luthuli were arrested shortly after the attack. They stood trial, were convicted and sentenced. Applicant was sentenced to an effective term of imprisonment of twelve years and Luthuli received an effective term of imprisonment of fourteen years.
Konakwakhe Elliot Shangase also testified at the hearing of this matter. He is presently an induna in the area concerned. He stated that there was never any political strife or conflict in the area. He knows the applicant well and he knows him to have been a member of a criminal gang which caused havoc in the area. According to him the conflict in the area was caused by the criminal activities of the gang. He stated that the applicant and his other gang members, including Linda Luthuli, raped girls, broke into houses and generally terrorised the inhabitants of the area. Various meetings were held in an endeavour to resolve the problem, but the applicant and Linda Luthuli who attended some of the meetings were disobedient and didn't listen.
Matters came to a head when a boy by the name of Khali Shozi was shot and killed by Linda Luthuli. The killing of Khali Shozi was reported to the induna and the police and a number of local residents then went searching for Linda Luthuli. They went to the Luthuli homestead where violence erupted, during the course of which Mr Luthuli, the father of Linda Luthuli, and a Mr Sithole were killed. Some months later, on 2nd February 1993, the witness received news that an attack had been carried out at the Mathethwa household. He immediately went to the scene. He was told who the attackers were and the matter was reported to the police. He denies that the applicant, was ever an IFP youth organiser and avers that there was no formal IFP structures in the area. He is adamant that the attack at Mathethwa's house was not politically motivated and contends that it was nothing more than a criminal act.
Masawenkosi Cele also testified. He stated that he was not a member of any political party of movement and confirmed Mr Shangase's evidence that there was no political activity in the area at the time in question. He was present at the Mthethwa's house when it was attacked. He stated that he had accompanied his father there and that people were sitting under a tree drinking when the attack occurred. He was stabbed in the back during the attack. He stated that the people gathered at Mthethwa's house for purely social reasons and denied that it was a political gathering.
One of the essential criteria to be satisfied in the granting of amnesty is that the crime committed by the applicant is in act associated with a political objective committed in the course of the conflicts of the past. It can be seen from the above brief synopsis of the evidence that in this regard we are confronted with two conflicting versions. On the one hand the applicant and his witness contend that the motivation for the attack was political and that they acted on the instruction of a political leader and on the other hand a victim and a local resident contend that politics didn't play a role and that the attack was nothing more than a criminal act.
The evidence of both the applicant and his witness, Linda Luthuli, must be approached with caution. It is apparent from the judgment that was delivered at their trial that they raised an alibi as their defence and testified that they were not present when the attack was carried out. They are accordingly not averse to committing perjury.
The evidence of the applicant was not satisfactory in regard to the instructions he received from Bhuquza Mbonambi. In response to questions contained in the application form for amnesty relating to whether the offences were committed in execution of an order and who gave the order, the applicant stated that such questions were not applicable. It was only later in response to a request for further particulars that the applicant wrote a letter to the Commission in which he stated that the instruction was given by Mr Bhuquza Mbonambi who, he says, was killed three months after his, the applicant's, arrest, and that the instruction was "that we must/should kill any ANC members in that particular area". However, in his evidence given at the hearing he stated that Mbonambi informed him that people should be killed at a certain place and that they will be found at Mthethwa's house.
These contradictions devalue applicant's credibility as a witness and cast serious doubt on his assertion that he was instructed to attack his victims and, in turn, that the attack was politically motivated. These doubts are heightened when the evidence of the applicant and Linda Luthuli is weighed against that of Konakwakhe Shangase and Msawenkosi Cele. Both Messrs Shangase and Cele were, in our view, good witnesses who gave their evidence in a forthright manner. We, after careful consideration of all the evidence, accept the evidence of Messrs Shangase and Cele as being reliable and the truth and reject that of the applicant and Linda Luthuli as being false.
We are accordingly not satisfied that the applicant committed the crimes in furtherance of a political objective or that he has made a full disclosure of all relevant facts.
The application for amnesty is therefore REFUSED.
SIGNED AT CAPE TOWN THIS THE
: DAY OF
: 2000
JUDGE S MILLER
MR J B SIBANYONI
MR I LAX
