DECISION
1. These applications or amnesty arise out of two shooting incidents that occurred on 28 March 1994. Initially there were 13 applicants.
Applicants 1 to 10 applied for amnesty in respect of a shooting incident at a building known as Shell House, which is situated in downtown Johannesburg. This building houses the offices of the ANC. It is where the headquarters of the ANC are located. It is bounded on the north by De Villiers Street, on the west by King George Street, on the east by Plein Street and on the south by Klein Street.
Applicants 11 to 13 applied for amnesty in respect of a different incident that occurred at a building known as Lancet Hall. This building is also in downtown Johannesburg and is situated at the corner of Von Wielligh and Bree Streets. It also houses the offices of the ANC.
Applicants 11 to 13 subsequently withdrew their applications for amnesty. In the result only the twelfth applicant, Mr Smangaliso Patrick Simelane, is an applicant in respect of the Lancet Hall shooting.
2. During these two shooting incidents, an estimated 9 people were killed.
3. The applications are opposed by the victims and families of the deceased.
4. It is necessary at the outset to deal with one of the objections raised by the objectors to the applications by Mr Bafana Eddie Khumalo and Mr Neo Potsane, the fifth and ninth applicants respectively.
5. The objectors took the point that the affidavits filed by these applicants in support of their applications had not been properly attested to. In our view, whatever defect may have been present was subsequently cured by the evidence of these two applicants. We are satisfied that their applications were properly before the committee.
Background
6. In order to put the two shooting incidents in context, it is necessary to sketch the background events.
7. Prior to the first democratic elections, the IFP had indicated that it would not take part in the elections. It promised to embark upon an anti-election campaign. Prior to 28 March 1994 the IFP requested permission to hold a march on 28 March. This was probably the commencement of the anti-election campaign by the IFP.
8. It was submitted on behalf of the objectors that the march was not a political event but that it was a march by Zulu-speaking Africans in support of King Goodwill Zwelithini. In our view the march cannot be construed otherwise than as a political event. It was requested by the IFP. Those who took part in the march associated themselves with the objects of the march. What the individual marchers may have thought is, in our view, irrelevant. In any event, even on the belief of those marchers who thought that they were attending a rally in support of King Goodwill Zwelithini, that in itself was a political event. We say this because it was in support of the demands of the King during the political negotiations. On any analysis, therefore, the march was a political event.
9. Prior to 28 March ANC officials had received an intelligence report indicating that Shell House would be attacked by the IFP. In the early morning of 28 March there were reports of incidents of shootings in the townships and on the trains by IFP supporters. At approximately 08h00 on 28 March there was a shooting incident at Lancet Hall. There were further reports of incidents of shooting in and around the city. Given the tensions which existed between the IFP and the ANC and the reports received by the ANC of a possible attack on Shell House, there was a reasonable apprehension at Shell House that an attack might be imminent. It is this apprehension of a possible attack that led to the increase of the security at Shell House. The security personnel were put on high alert.
10. The apprehension of an attack on Shell House was further heightened by the group of marchers who went past Shell House. These marchers were armed with traditional weapons. They were singing traditional war songs.
11. The possible attack on Shell House, which is the headquarters of the ANC, was perceived by the ANC as part of the IFP anti-election campaign aimed at disrupting the elections.
12. During the course of the day approximately fifty people lost their lives violently in and around central Johannesburg and numerous other incidents of violence and damage to property were reported to the police.
13. It is against these background events that the shooting incidents at Lancet Hall and Shell House must be understood. Seen in this context the shooting incidents occurred in a political context.
The Lancet Hall Shooting
14. Mr Smangaliso Patrick Simelane, the twelfth applicant, was the only applicant who was involved in the Lancet Hall shooting. Two incidents occurred at Lancet Hall. The first occurred at approximately 08h00 when a group of marchers stood near the entrance to the building. They were armed with traditional weapons and were singing traditional war songs. One of the marchers threatened the guards. Mr Sello Magagula, one of the guards, fired a shot in the air and the marchers fled the area.
The second incident occurred at approximately 10h00 when shots were heard coming from the street level. At the time Mr Simelane was in the basement. He went up to the gate where he saw a large group of people armed with an assortment of weapons. This group proceeded towards the driveway and tried to push the gates open. Mr Simelane fired a single shot with a shotgun at the group and the group retreated from the gate.
15. Mr Simelane conceded that he did not issue any warning before shooting. He also failed to fire a warning shot. There is nothing in his evidence to suggest that a warning shot would not have repelled the marchers. Consequently, there is nothing in his evidence to indicate that he was justified in firing a shot directly at the marchers. It is clear that at the time he fired at the group of marchers he appreciated the possibility that someone would be shot and injured or killed. He nevertheless fired recklessly, as to such eventuality. Shooting them in these circumstances constituted an offence or a delict. In the result we are satisfied that the acts of Mr Simelane constituted an offence or a delict as envisaged in the Act.
The Shell House Shooting
16. Save for Mr Kruser, the first applicant, all the applicants who are seeking amnesty in relation to the Shell House shooting admitted that they shot at the marchers. Mr Kruser only gave orders to shoot and to cease fire. Some of the applicants testified that they shot at the marchers in response to the orders given by Mr Kruser, while others testified that they shot after they had heard gun shots and thought that they were being attacked. Mr Kruser too, testified that he gave orders to shoot after he had heard gun shots and thought that they were under attack.
17. Except for Mr Jacob Modise Molefe, the fourth applicant, none of the applicants testified that they saw any of the marchers shooting at them. Some of the applicants did not even see any firearms amongst the marchers. It was Mr Jacob Modise Molefe who testified that he saw a big man wearing a red T-shirt carrying an AK47. He further testified that he saw this man shooting. However, under cross-examination he admitted that he did not see this man shooting.
18. The perception therefore, that Shell House was under attack, was based purely on the shooting which they heard and which they thought was being directed at Shell House.
19. On the evidence of the independent witnesses, the shooting started on the ground floor of Shell House. Sergeant Golach, Mr Jimmy Stephens and Mr Mhlaba testified that an ANC security guard who was on the ground floor of Shell House fired shots at the marchers. It is common cause that, given the situation that prevailed at the time, it was difficult to make out where the shots came from. It is, therefore, probable that the applicants mistook this shooting as coming from the marchers when in fact it had come from ANC security guards.
20. Having regard to the confusion which prevailed at the time and the nature of evidence given at the hearing, it is not possible to determine whether those first shots were fired by any of the applicants. Messrs Zuma, the second applicant, and Rama are the only persons, on the evidence, who fired shots prior to the order to shoot. According to Mr Zuma they only fired warning shots. They did not fire at the crowd. Mr Zuma testified that he only fired at the marchers after the orders to shoot had been given.
21. In our view it is not necessary to determine whether any of the applicants fired the first shots at the crowd. What is relevant is that the first shots were fired by the ANC security that was stationed on the ground floor. It was difficult at the time to make out where these shots came from. It is this shooting which was mistaken by the applicants as coming from the marchers. This shooting prompted Mr Kruser to give orders to shoot at the marchers while the other applicants who did not hear the orders simply shot at the marchers in response to this shooting, believing that they were under attack.
22. On the evidence as a whole we are satisfied that there was no attack on Shell House by the IFP marchers. However, that does not mean that the conduct of the applicants in shooting at the marchers was without justification. The applicants, upon hearing gunshots, thought that they were under attack. This perception on their part was not unreasonable. There were reports that Shell House would be attacked. There were marchers in the vicinity who were armed and who were singing traditional war songs. The situation was volatile. It was difficult to make out where the shots came from. In these circumstances the shots could easily have been mistaken for an attack on Shell House.
23. However, that is not the end of the matter. Objective ballistic and medical evidence indicates that the shooting was without justification. In particular, the medical reports indicate that most of the deceased were shot after they had turned back. Indeed, all the applicants who fired shots at the marchers admitted that they may well have shot at the marchers after the marchers had turned back and were running away. On this aspect Mr Jimmy Stephens testified that the ANC guards continued to shoot at the marchers as they were dispersing and running away. Mr Bafana Mhlaba who was amongst the marchers also testified that as they were running away they were shot at by the ANC guards.
24. We are satisfied that the applicants who shot at the marchers continued to do so after the marchers had turned back and were running away. At this stage the marchers did not pose any threat to the ANC guards. Such shooting was, therefore, without any justification. It was, therefore, unlawful. Mr Kruser gave the orders to shoot and he must take full responsibility for the conduct of the applicants who shot at the marchers. He failed to give orders to cease fire earlier but allowed the shooting to go on for too long. In the result we are satisfied that the applicants committed acts which constituted offences or delicts as envisaged in section 20 (2) of the Act.
Submission of Behalf of the Objectors
25. The main objections by the objectors to the granting of the amnesty were two fold: first, it was submitted that the march was not a political event and therefore, the reaction to the marchers by the applicants could not have been politically motivated; and second, as the objective evidence shows that the marchers did not attack the applicants, the applicants were untruthful in suggesting that they were under attack by the marchers.
26. We have already found that the march was organised by the IFP as part of its anti-election campaign. Indeed, the documents handed in at the hearing indicate that the march was organised by the IFP.
27. It was further submitted on behalf of the objectors that some of the marchers thought they were going to an Imbizo in support of the King’s position and that this removed the marchers from a political context. In our view a march in support of the King at the time was an act of political support for the King during the negotiations. It was intended to secure for the King certain powers under the Constitution. Therefore, a march in support of the King was itself a political event. In any event, the fact that some of the marchers were unaware of the object of the march as an anti-election campaign by the IFP does not detract from the nature of the event. In our view, what the individual marchers thought they were participating in is irrelevant in the determination of the political context in which the march occurred.
28. The submission that the applicants were untruthful when they claimed that they were attacked by the marchers is premised on the assumption that the applicants stated as a fact that they were attacked. The import of the evidence of the applicants is to the effect that they thought they were under attack from the marchers. This perception arose from the fact that they heard gunfire and in the confusion it was difficult to determine where the gunfire was coming from. It was not unreasonable of them to have believed in the circumstances that it came from the marchers. That objective evidence indicates that there was no shooting at the guards and, therefore, that the perception was erroneous does not detract from the fact that the applicants had this perception which, in our view, was a reasonable one. It is in this context that their evidence of attack must be understood.
29. Finally, the fact that the applicants testified that they believed at the time that they were acting in self-defence or in defence of property, does not detract from the fact that their conduct was unlawful. The admission by the applicants and their conduct, viewed objectively, was unjustified is, in our view, an admission that their conduct was unlawful and, therefore, constituted a delict or an offence.
Conclusion
30. In all the circumstances we are satisfied that the applicants have satisfied the requirements of the Act. In the result, amnesty is hereby GRANTED to all the applicants for all offences and delicts arising from their participation in the shooting incidents which occurred on 28 March 1994 at Shell House and at Lancet Hall.
31. The relatives and dependents of the following deceased are found to be victims and are accordingly referred to the Reparation and Rehabilitation Committee, in terms of Section 22 (1) of the Act:
Mfanizakhe Majozi;
Sibuku Petros Langa;
Zantonto Johannes Khumalo;
Banda Wellington Sithole;
Raphael Veli Ntombela;
Mziwakhe Jeremiah Khanyile;
Conrad Ncobela Kohla.
32. The following persons are found to be victims and are accordingly referred to the Reparation and Rehabilitation Committee, in terms of Section 22(1) of the Act
Musikanyise Nicholas Mncube;
Mbuyiseni Nkosi;
Lucky Mfanu Nzuza;
Phoyisa Gasela;
John Mpikayipheli Hlatswayo;
Lukas Thembinkosi Njoko;
Simon Mbhele;
Mvimbela Mungwe;
Muzikayize Ntombela;
Thembise K. William Mhlongo;
Rista B. Buthelezi;
Anthony Mungwe;
Silwayiphi Alfred Maphanga;
Amos Sibusiso Ngobese;
Bafana K. Mahlaba.
33. During the course of the hearing the Committee was informed that a number of other people were injured during the course of the incidents. However, none of these injured persons have either testified or attested to affidavits before us and accordingly we have no details of such people. Nevertheless, it is clear that should they come forward and satisfy the Reparation Committee that they were injured during the course of the incidents they would be entitled to be treated as victims within the meaning of the Act.
SIGNED
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JUDGE H. MALL
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JUDGE S. NGCOBO
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MS. S. KHAMPEPE
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MR I. LAX
