DECISION
Each of the applicants make application for amnesty in respect of various offences and in terms of Act 34 of 1995 as amended (the Act).
It is common cause that they were all members of the self-defence units (SDU’s) established in Thokoza, Gauteng by the African National Congress (ANC).
At the onset of the hearing, we were confronted with over 50 applicants but on closer scrutiny, more than half thereof did not seem to demand attention at this hearing. Eventually we were able to deal with the applications of the abovenamed applicants.
There are a number of incidents upon which the various applications are based.
Mr. Ronnie Kasrils testified about the political activities, both lawful and unlawful that were directed at the ANC in various areas of the country. These activities included attacks on members of the ANC resulting in death, injury and damage to property as well as an infringement of rights like those related to territory. (Cross border attacks and areas within the different suburbs).
Mr. Kasrils was a member of the ANC hierarchy charged with investigating and dealing with the political violence affecting the ANC at the time. He was involved in the strategic decisions made in pursuance thereof.
In the discussing the matter, the ANC decided that it would be necessary to establish SDU’s with a clear general mandate to defend the interests of its membership as well as those regarded as neutral. Despite a set of written general rules which amounted to some type of code of conduct, actual activities of the SDU’s were not explicitly defined. However, each SDU had it’s own independent decision makers. Their decisions were limited to fall within the ambit of the general purpose for which SDU’s were established.
The SDU’s were established within the background of this ongoing battle with at least a loose hierarchy of command to control it. It seems that these SDU’s were required at some stage during these skirmishes to adopt strategic activities which amounted to criminal offences and went far beyond the acceptable norms of self-defence but still committed within the political framework of the time and circumstances of the area.
Clearly the members of the relevant SDU hierarchy identified the Inkatha Freedom Party (IFP) and it’s members as being the offenders and attackers of the ANC’s membership. Furthermore this view was fortified by a developing pattern, as such attacks occurred after marches to funerals of members of the battles between the two organisations developed to such an extent that mere organisational association led to these attacks on residents of the area.
With the increased frequency of these attacks, the decision makers of the SDU’s decided that preventative steps rather than reactive steps should also be employed in order to defend the ANC membership of the area. They resorted, at times, to unlawful activities which give rise to these applications. We deal with each incident in turn.
1.
CHISOMA: AM 7065/97
The applicant applies for amnesty in respect of the kidnapping and murder of one Mr. Zulu (the deceased) in 1994. In addition he applies for amnesty in respect of the unlawful possession of an AK47 firearm and the associated ammunition. He was with two others who are not co-applicants in this application.
Mr. Zulu was believed to be a member of the IFP. The applicant assisted in kidnapping Mr. Zulu from his home and taken to the house of one Mbatha apparently a leading member of the relevant SDU. There the deceased was shot dead. The applicant was also armed and associated himself with the murder though he did not directly cause the death of the deceased.
He possessed the firearm and ammunition as a result of being a member of the SDU and issued to him in his capacity as such.
Mrs. Sifatsane, the customary wife of the deceased, testified in opposing the application, that the deceased was, as far as she knew, a member of the ANC and not the IFP.
However, she could not specifically deny any of his activities as alleged by the applicant. Nor could she counter the bona fide belief that the deceased was in fact a member of the IFP.
We are satisfied that the applicant has indeed made full disclosure and acted with a political motive and consequently he has complied with the requirements of the Act.
In the result, amnesty in respect of the kidnapping and subsequent murder of Mr. Zulu and in respect of unlawful possession of an AK47 firearm and associated ammunition is GRANTED to the applicant.
Joyce Sokhela (now Mbatha), the deceased’s wife and Gugu Patience Zulu (daughter) of 612 Lenon Street, Extension 2, Thokoza, 1426, are declared victims as envisaged by the Act and referred to the Reparation and Rehabilitation Committee for attention.
2.
LUCKY RICHARD MOLAHLELI: AM 7098/97
The applicant, a member of the SDU in Thokoza, makes application for amnesty in respect for attempted murder, unlawful possession of an MK47 firearm and R4 rifle.
Towards the end of 1992, at Schoeman Street, near Unit F and Buya Futi hostel, the applicant and others saw members of the IFP proceeding in the direction of Unit F where the applicants and his associates were amidst their homes. Armed with AK47 firearms, the applicant and his colleagues shot at the crowd of IFP marchers in anticipation of an expected attack on their persons, homes and community as was becoming customary at the time.
A gun fight between the two groups ensued until the applicant and his group ran away. Clearly the event occurred within the political backdrop of the time in the area. There seems to be no other reason for the confrontation and the committee accepts that full disclosure has been made in respect of the event in question.
In the circumstances the committee is satisfied that the requirements of the act have been complied with and amnesty is GRANTED to the applicant in respect of an undetermined number of attempted murders committed at Schoeman Street, Thokoza and the unlawful possession of a R4 rifle and an AK47 firearm together with the associated ammunition, towards the end of 1992.
3.
EMBROSE MAY: AM 7208/97
The applicant makes application for amnesty in respect of attempted murder, and the unlawful possession of an AK47 firearm and ammunition. About a week or two before the general elections in April 1994, the applicant was found in the unlawful possession of an AK47 firearm and ammunition at his home. He was part of the SDU in the area and was issued with the firearm and ammunition to complete his duties as a member of the SDU.
During the same period, the applicant shot a person whose name he does not know. It seems that this person harassed him and threatened to expose him to the soldiers and police who were at the time seen to be upholding the machinery of apartheid and its interests. He testified that this person was an enemy of the people because in informing the soldiers and police, he betrayed the political cause. He does not know if he injured or killed that person.
The committee is satisfied that the applicant has complied with the requirements of the Act in that this actions in committing these offences were politically motivated and that he made full disclosure of the events relevant to his application.
In the result, amnesty in respect of the unlawful possession of an AK47 firearm and attempted murder of an unidentified person both committed in April 1994, is GRANTED to the applicant.
Applicants:
4.
KUFUWE MICHAEL NHLAPO: AM 7303/97
5.
JABU JOYCE NYETHE: AM 7285/97
6.
MOGOERA VALENTOR MODIKOA: AM 7212/97
7.
THANDUXOLO PATRICK MQIBI: AM 7375/97
are applying for amnesty in respect of related offences.
The first incident relates to the attempted murder of Sibongelo Sambo and the burning of her house. Applicants number 5, Nyethe, number 6, Modikoa and number 7, Mqibi were involved in this incident.
According to the evidence, Mqibi, who was the overall commander of the SDU in the area instructed Nyethe and Modikoa to burn Sambo and her house because she was an IFP leader in the area. This order was given in 1993 and the two of them and Mdamase and M’Africa proceeded to Sambo’s house and petrol bombed it with the intention of murdering her. They suspected her to be in the house. The house was destroyed but Sambo was not killed in the process. As far as the Committee could ascertain Mdamase and M’Africa did not apply for amnesty.
The second incident relates to the kidnapping of Sambo and her sibling and her subsequent murder. About a month after the first incident Nyethe and one Vuyisile were ordered by Mashinini who was a sub-commander in the region to kidnap Sambo and to bring her to his home. Nyethe testified that in view of the previous order by Mqibi that she should be killed, he had no problems in obeying the order given by Mashinini. He went with Modikoa and Vuyisile and they kidnapped Sambo and her sibling and they brought them to Mashinini. Modikoa left after they handed Sambo over to Mashinini and was not present in what happened thereafter.
Nyethe also left but returned soon afterwards to fetch Sambo as he knew that she was to be taken to Danza Zone where she was to be killed. On his return he found that his colleagues were raping Sambo. He stopped them and shot her. According to him, he killed her in pursuance of the orders of Mqibi and Mashinini that she should be killed. As far as the Committee is aware, Vuyisile and Mashinini did not apply for amnesty. Mqibi himself was not present at this killing but admits that he gave the order that she should be killed. Nhlapo associated himself with the kidnapping and murder of Sambo although he did not do the actual shooting and also applies for amnesty for this murder.
The third incident relates to the burning of the house of Mr Mazibuko. This was done on instruction of Mqibi but he was not able to give the names of the cadres who carried out the operation.
The Committee is satisfied that the above offences, excluding the rape of Sibongile Sambo were offences associated with a political objective to fight the IFP, the political opponent of the applicants, that they were committed as a result of instructions falling within the political perimeters prevailing at the time and that the applicants disclosed the relevant facts.
Amnesty is accordingly GRANTED as follows:
1. to applicant no. 4, KIFUWE MICHAEL NHLAPO for:
(a) kidnapping of Sibongile Sambo and her sibling during 1993.
(b) murdering Sibongile Sambo during 1993 near Danza Zone, Thokoza.
2. to applicant no. 5, JABU JACOB NYETHE for:
(c) attempted murder of Sibongile Sambo during 1993.
(d) arson in respect of the house of Sibongile during 1993.
(e) kidnapping of Sibongile Sambo during 1993 (about one month after the arson referred to above).
(f) murdering Sibongile Sambo during 1993 at Danza Zone on the date when she was kidnapped.
(g) being in illegal possession of a firearm and ammunition on the date of the murder of Sibongile Sambo
3. to the 6th applicant, MOGOERA VALENTON MODIKOA for:
(a) attempted murder of Sibongile Sambo during 1993.
(b) arson in respect of the house of Sibongile during 1993.
(c) kidnapping of Sibongile Sambo during 1993 (about a month after the arson referred to above).
4. to the 7th applicant, THANDUXOLO PATRICK MQIBI for:
(a) attempted murder of Sibongile Sambo during 1993.
(b) arson in respect of the house of Sibongile during 1993.
(c) Murdering Sibongile Sambo during 1993 at the Danza Zone on the date when she was kidnapped.
(d) arson of the house of Mr Mazibuko during 1993/1994.
Doris Sambo and Mazibuko are declared victims as defined by the Act and in terms of section 22 of Act 34 referred to the Reparations and Rehabilitation Committee for attention.
8.
THEMBA RICHARD XABA: AM 7309/97
9.
PERRY NHLANHLA DLAMINI: AM 7239/97
The applicants apply for amnesty in respect of the offences of attempted murder of Mr Msizi and arson on his home. During 1990, Dlamini went to the home of Mr Msizi. He was in the company of Themba Xaba, Jackie Macheo and Bafana Baloi.
Both the applicants were members of the area SDU. Themba Xaba was a commander of the group and gave instructions with regards to the commission of these offences. He gave these instructions on his own volition. Mr Msizi was a member of the IFP and also councillor in terms of the Local Affairs Legislation. He was regarded by the applicants as causing hardship for the local community such as evicting people from their houses and acting as a policeman by wrongfully arresting people in some cases for petty crimes. He was therefore seen as an apartheid collaborator.
Mr Msizi’s house was attacked with petrol bombs after Xaba attempted to find out whether the proposed attack was feasible or not. They knew that Mr Msizi was inside the house and intended that he should be killed in this attack. The house was attacked and burned down but Mr Msizi was not killed.
Clearly, the attack was politically motivated and the facts as disclosed by the applicants were not challenged by the victim, Mr Msizi. The committee is satisfied that the applicants have complied with the requirements of the Act and amnesty is GRANTED to the two applicants in respect of the attempted murder of Mr Msizi and the burning of his house during 1990.
Mr Msizi is declared a victim as defined by the Act and referred to the Reparation and Rehabilitation Department for attention.
10.
SANDILE JEREMY NGUBENI: AM 7298/97
The applicant applies for amnesty in respect of the murder and kidnapping of Sipho Makhatini and also in respect of the unlawful possession of an AK47 firearm and ammunition.
The applicant was a commander of an SDU in Thokoza in October 1993. During that month he, together with three (3) members of his unit went to collect Sipho Makhatini. Sipho Makhatini, according to the applicant, was a member of the IFP and was often seen in the company of IFP groupings. He used to participate in IFP celebrations of their killing of members of the SDU in the area. He also participated in political attacks on the members of the ANC and other residents in the area. He was also party to killing pregnant women attached to the ANC because they were giving birth to prospective members of the ANC. He was therefore, as far as the applicant was concerned, active in committing violent crimes against supporters of the ANC.
He took the decision that Sipho should be killed. Consequently he and his colleagues went to Sipho’s home, kidnapped him and took him to a place referred to as "danger zone" in Thokoza.
The applicant was unlawfully armed with an AK47 and ammunition. He shot Sipho when they arrived at Danger Zone. As a result Sipho died.
The Committee is satisfied that the offences were committed for political reasons and that full disclosure of the facts related to the commission of the crimes has been made.
In the result, the Committee is satisfied that the requirements of the Act have been complied with and accordingly, amnesty is GRANTED to the applicant for the kidnapping and murder of Sipho Makhatini and for the unlawful possession of an AK47 and ammunition used in the commission of the offences.
11.
CHICHELA ESSAU MACHITJE: AM 7634/97
The applicant applies for amnesty in respect of the crime of an undetermined number of murders, the unlawful possession of firearms, ammunition and explosives.
The applicant became part of the SDU structures in Thokoza during September 1990. He was encouraged to do so by the frequency of violent attacks on members of the ANC by, who he says, were IFP structures. He was appointed organiser of the SDU in the area. He was handed an AK47 firearm and ammunition which he thereafter possessed unlawfully.
Sometimes soon thereafter, his grouping received information that an identified IFP grouping intended to attack a section of Thokoza. In a preemptive attack on that grouping the applicant, with his group, attacked their opponents. The applicant shot at this group. He is unaware if anyone was injured or killed as a result, though it seems that the ensuing battle lasted for about two days.
As part of his duties and in his capacity as organiser of the SDU, he held in safekeeping a number of firearms, ammunition and explosives. He also distributed arms, ammunition and explosives at various times, in order to equip members of his SDU to fulfill their "duties" as such.
His evidence as a whole fits in with the general events that occurred in that area at that time. While applicant has applied for amnesty in respect of an undetermined number of murders, he is not sure if anyone was killed or indeed injured. Neither has he said whether anyone was injured or killed in that attack as a whole. He however intended that people should be injured and was aware of the fact that people could die as a result of his or his group’s actions.
In the circumstances then, it is clear that he would be guilty of attempted murder rather than murder.
The Committee is satisfied that the applicant’s action pertaining to this application was motivated by political considerations and the he has testified to all the relevant facts regarding the commission of the crimes.
In the result, the applicant is GRANTED amnesty in respect of:
(a) An undetermined number of attempts to murder of an undetermined number of unidentified people, committed in Thokoza during or about September 1990;
(b) The unlawful distribution and possession of an undetermined number of firearms, associated ammunition and explosives in Thokoza during September 1990.
12.
MESHACK TSEKO THULO: AM 7714/97
The applicant applies for amnesty in respect of the kidnapping of an unidentified person, for the unlawful possession and dealing in approximately three thousand rounds of various types of ammunition.
He was a member of the SDU structures in Thokoza from about 1990. During 1993, when a group of IFP members were going to the graveyard and discharged their firearms, the applicant and his colleague came across an unidentified person wearing a red head band which was normally associated with the IFP groupings. The applicant and his group then took this person to Unit F in the area. The unidentified person was reluctant to accompany them but was forced to go with.
The applicant also, relying on reports, believed that this person was involved in many crimes, including kidnapping, which were politically motivated. The person was left at a meeting in Unit F and the applicant proceeded to go and buy ammunition which was part of his duties as a member of the SDU. On his return to Unit F, he unexpectedly found that the person had been killed. He thought the person would be questioned, probably in respect of those whom he had allegedly kidnapped. He had nothing to do with the death of that person.
The applicant’s evidence fits in with the general pattern of the events of the time in that area. The Committee is satisfied that the applicant’s actions were politically motivated and that he has disclosed all the relevant facts regarding the commission of the offences for which he is applying for amnesty.
In the result, the applicant is GRANTED amnesty in respect of the kidnapping of an unidentified person in 1993 and also for the unlawful dealing, distributing and possession of an undetermined amount of ammunition during the period 1993 and 1994.
13.
MOLEFE MICHAEL SELEPE: AM 7154/97
The applicant applied for amnesty in respect of offences related to two incidents:
1. The robbery of firearms at the Kliprivier Police Station on or about 15 December 1993.
2. The transport of weapons from Duduza to Thokoza and incidents related thereto which occurred at Dawn Park.
In his application and evidence the incidents were referred to as the Kliprivier Police Station and the Dawn Park incidents.
At the hearing it transpired that the above incidents included several offences which were not specifically mentioned. The committee accepted that it was applicant’s intention that all the offences related to the two incidents should be regarded as falling within the ambit of the application.
The applicant also testified about other incidents which were not by any stretch of imagination connected to the above mentioned two incidents. The committee will not deal with the evidence on the offences in that regard because that would amount to inserting a new application after the cut off date for the filing of applications. It would also involve hearing matters which were not investigated and in respect of which victims and interested parties received no notification.
A. The Dawn Park Incident – 30 October 1992
The committee in analysing the evidence in respect of the so called Dawn Park incident concluded that this incident related to the following offences:
1. The robbery of the motor vehicle belonging to Mr Tshabalala. The said bakkie was used in committing the offence related to the illegal transportation and possession of firearms and ammunition.
2. The murder of Mr Glen Thompson in Dawn Park on 30 October 1992.
3. The attempted murder of Mr Sidney Gehling in Dawn Park on 30 October 1992.
4. The unlawful transportation and possession of fire arms and ammunition on the 30 October 1992 at Duduza and Dawn Park.
B. The Kliprivier Police Station incident which involved the following offences:
1. Robbery of an undetermined number of firearms and ammunition which included pistols, R4 and R1 rifles and the illegal possession of the said firearms and ammunition. The said robbery occurred at the Kliprivier Police Station on or about 15 December 1993.
2. The unlawful transportation of the said weapons and ammunition and the unlawful distribution and the unlawful distribution thereof soon after 15 December 1993 in Thokoza.
3. The assault on two unidentified policemen on the said date at the Kliprivier Police Station.
The applicant testified that he was the commander of an SDU in the Slovo Section, Thokoza. They needed arms and ammunition to protect themselves in the then ongoing war situation.
The next incident related to the robbery of Mr Tshabalala’s motor vehicle and the shooting of Thompson and Gehling. The applicant received a call from his commander to collect "material" in Duduza. He knew it was firearms and such like items. In order to avoid quick identification the applicant and his associates then planned and successfully effected the robbery of a motor vehicle that belonged to Mr Tshabalala. They used it to travel to Duduza where they collected the firearms referred to earlier. This they did towards the evening on their way back to Thokoza through Vosloorus. At Vosloorus they encountered a road block. They therefore deviated from their original route and landed up in Dawn Park.
His colleagues Vusi and Thami were in the back of the panel van they were travelling in. They parked of and while Vusi was relieving himself a short distance away, they realised another motor vehicle parking off close by and the door opening up. Vusi, who was near that vehicle screamed that the occupants thereof were preparing to shoot at the applicant and his passengers. The applicant immediately thought that these people were associated with the road block and had followed them to Dawn Park. Shooting then occurred.
The applicant saw Vusi lying on the ground. A pitched gun battle ensured thereafter. Vusi was left behind when the applicant retreated while still being fired upon. Thami was also injured. He also remained behind. When the applicant heard the sound of a police siren he escaped after a short battle with the police.
As far as the Kliprivier Police Station incident is concerned the applicant testified that on 15 December 1993 he was instructed by his commander Bra Kubeka to go to the Kliprivier Police Station to disarm those at the police station of their fire arms and take these. It seems that Kubeka had arranged the applicant to be accompanied by other members of the SDU.
When they arrived at the police station, they were all armed with firearms. The two policemen there were assaulted, threatened and robbed of the firearms that were in the safe. The telephone wires were cut so as to facilitate a successful get away from the police station. The weapons were then taken to their area of residence and left in the custody of their commander to their area of residence and left in the custody of their commander Bra Kubeka. These offences were committed to equip the members of the SDU to protect the people of the area.
It is clear that the applicant committed the offences for political reasons. Furthermore he has disclosed all the relevant facts pertaining to the offences committed during or related to the incidents culminating at Dawn Park or at the Kliprivier Police Station. The committee is satisfied that the application has complied with the requirements of the Act in respect of those two broad incidents.
The next of kin of Mr Glen Thompson are recommended as victims in terms of Section 22 of Act 34 of 1995 as well as Mr Sidney Gehling.
In the result amnesty is GRANTED as follows:
A.
THE DAWN PARK INCIDENT
(i) Robbery of the motor vehicle belonging to Mr Tshabalala;
(ii) Unlawful possession of an undetermined number of firearms and ammunition;
(iii) Unlawful transportation and distribution of an undetermined number of firearms and ammunition;
(iv) The murder of Mr Glen Thompson;
(v) The attempted murder of Mr Gehlig.
B.
THE KLIPRIVIER POLICE STATION INCIDENT
(i) Robbery of an undetermined number of firearms and ammunition;
(ii) Unlawful possession of an undetermined number of firearms and ammunition;
(iii) Unlawful transportation and distribution of an undetermined number of firearms and ammunition;
(iv) Assaults on two unidentified policemen during the aforementioned robbery.
SIGNED AT CAPE TOWN ON THIS THE ________ DAY OF ___________ 2000.
_______________________
JUDGE R. PILLAY
_______________________
JUDGE C. DE JAGER
_______________________
JUDGE N.J. MOTATA
