DECISION
All the above-named persons applied for amnesty relating to a variety of incidents in the Thokoza/Springs area in the early nineties. The last mentioned applicants, Mzwake Khumalo and Mbekhisini Solomon Khumalo, who were also implicated by the other applicants, formally withdrew their applications at the start of the hearing.
The Applicants who will be referred to in the order stated above applied for amnesty for the offences and delicts set out below:
The first applicant, THEMBA STEPHEN ZIMU, applies for amnesty for his participation in a conspiracy to murder one Sam Ntuli which resulted in the death of Ntuli on 29 September 1991, the murder of Vusi Shabalala at or near Buthelezi Street, Thokoza on 27 October 1992, all delicts and offences directly associated with or flowing from the shooting and massacre of a number of people at a tavern in the Ngema section of the Natalspruit township in Gauteng on or about 22 January 1993, and the attack on the Madlala Supermarket in or about January 1993.
The second applicant, named as Thulani Terrence Mlaba in his application form, explained that the name Mlaba was an alias and that his real name was Tsotetsi. Hereinafter he will be referred to as Tsotetsi. He applies for amnesty in regard to the murder of Sam Ntuli and the attack on the Ngema tavern mentioned above as well as the killing of one Norman Sithole at or near Natalspruit on an unknown date. he initially also applied for amnesty for the killing of one Happy Mbele in December 1992 and also for an unspecified number of offences relating to driving people out of their homes and the abduction of an unspecified number of persons to a hostel in Thokoza. He did not proceed with the application relating to the death of Mbele. He explained that this incident appeared on his application form as a result of the fact that his application form was filled in by a fellow inmate and not by himself and that some of the information on his application form was taken from newspaper cuttings.
The third applicant, Nicholas Zwile Chamane, only applies for amnesty for his participation in the massacre at the Ngema tavern.
All three the applicants testified at the hearing. The applications were opposed but only one victim, the owner of the Ngema tavern, Mrs Priscilla Mvelase, testified. One of the implicated parties, Mrs Gertrude Mzizi a prominent leader of the IFP, also testified.
From the evidence adduced before the committee it became clear that with the possible exception of the third applicant, Chamane, the applicants were part of a group responsible for a reign of terror in the Thokoza and Natalspruit areas during the period 1991 to 1993. It also became clear that in their involvement in these various attacks (albeit against the background of general political unrest in that area where clashes between the supporters of the ANC and the supporters of the IFP were the order of the day) there was a fine line between offences committed with political objectives and pure criminality.
The Committee is of the opinion that criminal intent was the major reason for the involvement of the first and second applicants and bases this conclusion on the following.
The first applicant, Zimu, was employed as a taxi driver by one Bishop Mbhekhiseni Khumalo, hereinafter referred to as Khumalo. In his written application he stated that he was not an IFP member and that he was forced to kill innocent people. he later explained that the application form for amnesty was not filled out by him personally but by a fellow inmate. Yet in his evidence before the committee he more or less confirms the gist of this information by stating on page 35 of the transcript of the evidence: "...I did not have much information of the IFP. We were arrested shortly after the Ngema incident and therefore I did not have much knowledge about the structures of the IFP. I only got to know some of these things whilst I was in prison." He also admitted to having no knowledge of self-protection units that were formed by IFP members in Thokoza. It is also significant that when referring to people who were targeted he specifically mentions that some of the people were business people owning garages and shops "these were people targeted." Later in his evidence he again mentions names indicating that targets included business people such as "Nkosana, he owned a garage that once belonged to Mabuleng Mbisa" and "Thami, he owns a bottle store." (Page 12 of the transcript). When asked why he accepted instructions allegedly given by Khumalo and why he considered him to be the authority his reply once again indicates that political motives were not uppermost in his mind "It was very difficult. I assumed that he was holding a top position within the IFP." (Page 10 of the transcript). Of further significance is the fact that it was Zimu who on his own evidence took money from the victim, Mrs Mvelase, the owner of the Ngema tavern, although he alleged that she had given it to him (she was obviously mistaken in thinking it was Tsotetsi) without having been asked for it. Mrs Mvelase denied this in her evidence and furthermore testified that the tavern was not only frequented by ANC supporters. Her neighbours, she stated, were in fact, members of the IFP and there was no enmity between them. There is no reason to reject this evidence, in fact, this part of her evidence is to an extent borne out by the testimony of the third applicant, Chamane, that a person who came out of the tavern, apparently known to the second applicant, Tsotetsi, was warned not to go back into the house. The evidence of Tsotetsi, a self-confessed criminal whose application forms, statements and evidence abound with contradictions and vague statements, and who, in a number of incidents, was clearly being used for his skills as a car thief and on account of his notoriety as a criminal rather than his political convictions, does not assist the Committee in considering the application of the first applicant. The Committee is of the view that on the probabilities the motive for the attack on the tavern was either business rivalry or robbery or a mixture of both.
On the face of it the assassination of Sam Ntuli appears to have taken place within more of a political context but here too, in the opinion of the Committee, mercenary considerations were a major consideration. Once again, on the probabilities, this appears to have been the primary cause for his assassination. it is common cause that at the time of Ntuli's death the conflict between ANC and IFP supporters had not yet clearly crystallized. Ntuli was a civic leader who had organized go slows and strikes. According to Zimu the complaint against Sam Ntuli came from the people who operated the taxis because his activities caused them to lose money. Furthermore Mrs Gertrude Mzizi who was a leader within the ranks of the IFP testified that Ntuli was a peacemaker and on a good footing with both her and her husband who both occupied senior positions within the IFP. The Committee finds no reason to reject this evidence. Consequently the committee is of the view that the pecuniary interests of some taxi owners or business people were the main reason for the assassination of Mr Ntuli although indirectly his political association was the basis for his actions which negatively affected some businessmen. The involvement of the first and second applicants was primarily restricted to keeping the assassins informed of Ntuli's movements and stealing the vehicles that were to be used in his assassination. In all probability they did not overly concern themselves with the motives of their masters.
The killing of Vusi Shabalala seems to have emanated from the fact that he had ambitions of furthering the activities of Mr Ntuli. These activities would similarly have had a negative effect on the income of some taxi owners. Once again the role of the applicant was a very peripheral one in that he was only instructed to pick up the victim in his taxi at the council offices so as to make it possible for the assassins to shoot him upon alighting from the taxi. If Shabalala was a political opponent as alleged by the applicant, it is highly improbable that he would have made use of a rival taxi. Here again, the Committee is not satisfied that the offence was committed with a political objective as envisaged by the Act.
The attack on the Madlala supermarket in or about January 1993 is the incident which most clearly shows that business rivalry was the overriding cause of the violence where Zimu was involved. The evidence of the applicant that the owner of the supermarket was an ANC person who had bought a supermarket in an IFP stronghold, and that the people shot were IFP people who did their shopping there, just does not make any sense at all and is rejected.
The evidence of the second applicant Tsotetsi has already been referred to above as having been inconsistent, vague in places and contradictory. We also referred to him as being a self-confessed criminal whose criminal activities clearly made him a useful tool in the hands of people who wanted to get rid of business rivals and/or fill their pockets with income derived from stolen goods. Tsotetsi himself testified that goods from people who were driven from their homes, allegedly for political reasons, were taken to pawn shops in Alberton. Viewed against the general background of all his activities Tsotetsi who appears to have had a foot in both political camps, at least at some stage, participated in whatever criminal activities that came his way with very little regard for the politics that may or may not have been involved. If anything, the political upheaval only served to provide more fertile ground for his criminal activities. In his evidence before the Committee in cross examination by the legal representative for the third applicant, he clearly stated: "I had no problem with ANC people because I grew up in the township." (p 311 of the transcript.) The Committee is not satisfied on the evidence before it that any of the offences committed by him were not, to say the least, severely tainted by purely criminal motives. The witness Mzizi would not in her evidence even acknowledge him as a member of the IFP.
The application of the third applicant, Chamane, who was involved in the Ngema massacre, caused the committee some difficulty. Chamane was clearly a bit of an outsider in relation to the other two applicants. He was also the only one of the three applicants whom Mrs Mzizi acknowledged as a member of the IFP. It is not quite clear how Chamane got involved in an incident with two persons who were almost strangers to him. His version of exactly what happened does not accord with that of his two co-applicants in many respects. Acceptance of Chamane's evidence that he was not present when his co-applicants were briefed, allegedly by Khumalo; that Tsosetsi had told him that there were ANC people hanging out at Ngema tavern; that he was a member of the IFP and an IFP Self-protection Unit (SPU) in a hostel; that he (other than his co-applicants) received his fire-arm from an Induna at the IFP hostel where he stayed and that he bona fide believed his co-applicants to have been motivated by political convictions would explain this. Whether this belief was reasonable must be decided in the light of the nature of the gathering at the Khumalo household that night. Chamane was not aware of the rumours that Khumalo had been involved in the killing of his own wife. He bona fide feared an attack on the day of the funeral and he took his instructions from the Induna to protect all IFP members very seriously. He readily admits that he understood that they were going on a reconnaissance mission but that he personally was ready to attack if the circumstances were conducive to this. His bona fides is further borne out by the fact that his first thought after the attack was to report it to Induna Mkhonto.
Further factors the Committee regarded as being in the favour of Chamane are: there was little evidence that he had been involved in other activities of a criminal nature with either his co-applicants or otherwise; he had only met his co-applicants for the first time on the night of the incident; the attempts of his co-applicant, Tsotetsi, to implicate him in two other incidents are not convincing; his name did not feature on the list of people who allegedly made up the "Khumalo gang". (cf the Report of the Independent Board of Inquiry. (Page 29 of the bundle prepared for the hearing); and finally he was consistent in the evidence he gave at the Human Rights Violation as well as the Amnesty hearing.
In conclusion: the Committee is satisfied that the third applicant, Nicholas Zwile Chamane, has complied with all the requirements for amnesty, that he has acted with a political objective as required by the Act and that he has made a full disclosure of all relevant facts. Accordingly Nicholas Zwile Chamane is granted amnesty for all offences and delicts flowing from or directly associated with the massacre of persons at the Ngema tavern at or near Natalspruit on 22 January 1993.
The Committee is not satisfied that the first and second applicants have acted with a political objective as envisaged by the Act and consequently their applications are REFUSED.
The Committee is of the opinion that all persons injured and the next of kin of persons killed in the attack on the Ngema tavern are victims and they are referred to the Committee on Reparation and Rehabilitation in terms of section 29 of the Act.
SIGNED AT CAPE TOWN THIS THE
: DAY OF
: 2000.
JUDGE S M MILLER
ADV. F J BOSMAN
ADV. S S SIGODI
