DECISION
The applicant is applying for amnesty in respect of the following offences committed on the Mpumalanga/Maqongqo Road round about 7h20 on 2 March 1993:-
1. The murder of Nduda Mkhize aged 13;
2. the murder of Thulani Mkhize aged 19;
3. the murder of Thule Mkhize aged 9;
4. the murder of Wanda Ngubane, aged 12;
5. the murder Nomusa Gwala aged 12;
6. the murder of Ngee Mkhize aged 10;
7. the attempted murder of 15 other school children;
8. and the attempted murder of the driver of a cream white bakkie with a white canopy, Mr Makeke and/or Mr Ngobane.
The applicant testified that he was a member of the ANC living at Maqongqo, commonly known as Table Mountain. He joined the ANC in 1987 and was involved in numerous attacks and counter attacks during the period 1987 to 1993 in the ongoing war between the IFP and the ANC.
During an attack by the IFP on the ANC on 26 February 1993 several ANC members were injured and Joseph Mlambo, Johannes Bengu and Themba Ngwenya were killed. That led to a discussion by 20 members of the ANC on the evening of the 1st of March 1993 where a counter attack was discussed. This gathering was attended by inter alia Nkosenye Majola, the applicant himself, Kumbu Shangase, Sishe Madlala and Saul Mkhize. Majola took charge of the gathering. They discussed the situation and decided that they should look for a certain Makeke, one of the IFP leaders who was travelling in a cream-white bakkie with a white canopy. They should wait in a bush along the road and as the vehicle approach "they would come out and stand quite near to it and shoot at it". They knew his vehicle. The people assembled only discussed the plan but did not decide who was to execute the plan. The applicant and his co-perpetrators after the meeting decided they would carry out the plan.
He testified that this was not a meeting called by anybody. They happened to be present because at the time they were residing as a group in the mountains. The fact that he stated in his affidavit that they were deployed to carry out the attack might have created a wrong impression. The four of them decided on their own after the meeting that they would carry out the ambush and they didn't report it to the gathering.
Applicant further testified that they knew that they (presumably Makeke and somebody else) used the road every day. On the morning of 2 March 1993 they dug out the concealed weapons, took two AK 47's, a V11 and .303 rifle and then proceeded to a steep hill and hid behind trees.
They saw a bakkie approaching, moved onto the road and the four of them fired simultaneously. They could not ascertain who was in the vehicle. He pointed out that the vehicle was approximately 15 to 20 metres away when they started firing and was still driving in their direction. The applicant himself fired towards the side of the vehicle while Saul Mkhize fired towards the front. The car was at that stage turning around a bend to the left and the side of the vehicle was facing the applicant and his colleagues. The road was about 8 metres wide and the vehicle came to a stop about 10 to 12 paces from where the applicant was standing. According to him, he didn't see the driver or anybody leaving the vehicle, neither did his colleagues because after the shooting which lasted for a minute or two, they immediately fled.
They didn't recognise the driver or any of the passengers. They knew Makeke quite well but didn't identify him or any of the passengers before they started shooting or there after. He never came across an incident where the IFP attacked children and he knew that members of the ANC were not to direct attacks on children. His intention was to destroy Makeke, the driver of the vehicle.
Later on, on being questioned the applicant said that Makeke didn't own a cream-white bakkie but was at times driving a cream-white bakkie owned by somebody who had recently come to stay in the area. Mr Makeke himself was the owner of a white bakkie. It was put to him that according to his affidavit a white bakkie had been identified by the meeting on 1 March 1993 as the object for attack because a white bakkie was seen during the preceding attack on 26 February 1993. The question was then asked why they attacked a cream-white bakkie, to which he replied that the bakkie was both white and cream-white. He further went on to say that they attacked the cream-white bakkie because Makeke was the driver. The fact is that the bakkie was driven by one Ngobane. In this respect it must be borne in mind that according to him he didn't identify anybody at the shooting. It is also significant that he didn't mention in his application that children were killed. He stated that 6 Inkatha members were killed. When it was put to him that this information was not correct he conceded it and replied:
"Yes, it was a mistake. The reason is because I heard that 6 members of IFP were killed. It was not so clear that it was 6 children of the IFP".
This is contrary to his earlier evidence that he first heard of the effects of their ambush over the radio the next day when it was announced that 6 children were fatally shot and injured.
"My heart bled when I heard that innocent children had been killed, including those of my brother".
The victims opposed the amnesty. Mr Mkhize, the father of three of the deceased and Mr Khuala who was at the time a 13 years old scholar, testified that this particular vehicle was owned by Nkosi and was driven by Mr Ngobane and took children to the school daily. It speaks for itself that a vehicle daily carrying school children would travel at regular times and on regular routes. It would have been very easy to ascertain this if any reconnoitring had been done instead of reckless firing at any vehicle resembling the one they were supposed to ambush. It is inexplicable how they weren't able to recognise the driver from a distance of 20 yards driving right past them and stopping within 10 yards from them. It is even more inexplicable that whilst four of the children were shot in the road that the applicant could still aver that they were not aware that the victims were children. It was suggested that that may be so because he fled and it might have been that one of his co-perpetrators stayed a while longer and could have shot them. It is highly improbable that this co-perpetrator wouldn't have informed the applicant of their mistake at the time when all four of them were listening to the radio announcing the slaughter.
For the purposes of this decision it is not necessary to deal with the evidence of the young victim Khuala in so far as the identification of one of the attackers is concerned. The fact is that he fell into a coma after the man who confronted him, fired four bullets into his body, from close range. No doubt that man must have been aware that they attacked children and it is improbable that he wouldn't have mentioned it to his co-perpetrators when they re-assembled.
In the result the Committee is not satisfied that a full disclosure of all the relevant facts have been made. Even if the wrong vehicle was mistakenly targeted we find it highly improbable that the applicant didn't realise that children were killed while he was still on or near the scene. It is also improbable that they wouldn't have realised that the driver wasn't Makeke if in fact they directed fire at the driver as the identified target, at such a close distance.
The application is therefore REFUSED.
SIGNED AT CAPE TOWN ON THIS THE
: DAY OF
: 2000.
JUDGE S. KHAMPEPE
ADV. C. DE JAGER
MR W. MALAN
