DECISION
The applicant is seeking amnesty for the following offences and incidents:-
1. The murder of Zini Shongwe and attempted murder of several other persons whose names appear below during or about 30 July 1991 at or near Ermelo.
2. The attempted murder of United Democratic Front ("UDF") members at Isikhomplazi at or near Ermelo during or about 1990;
3. The murder of two (2) unknown scholars from Thembisa Secondary School at or near Ermelo during 1990;
4. The murder of three (3) scholars at or near Ermelo in or about 1991;
5. The attempted murder of Tilly Nkosi at or near Wesselton, Ermelo, during or about 1991;
6. The attempted murder of Mr Crucket at or near Extensia, Ermelo, during or about 1991;
7. The murder of Jackson Kubeka in Kati township at or near Ermelo during 1991;
8. Various crimes of murder, attempted murder and arson committed at or near Davel during or about 1991.
At the relevant time the applicant was a member of the Inkatha Freedom Party ("IFP"). Presently he is serving a long term of imprisonment for some of the offences which he committed, ranging from murder to attempted murder of members and supporters of the African National Congress ("ANC") in the Mpumalanga Region. An overwhelming number of his actions were carried out with Israel Nyoni Hlongwane, also an IFP member, who previously received amnesty for most of the crimes. The transcript of the evidence that was tendered by Hlongwane at his own hearing was part of the bundle of documents that were placed before the Committee. To expedite the proceedings, the present applicant made a constant reference to relevant portions of the said evidence, the correctness of which he generally confirmed.
The political history and profile of the applicant can be summarised as follows:-
Having been born to a destitute family he left school very early in life. He joined the labour market. In 1979 he was employed at Spar Supermarket in Ermelo where he had clashes with co-workers. He was branded an informer, the reason being that he was refusing to join a trade union and support its activities and campaigns. At the time and place, workers generally sympathised with the ANC which they strongly supported. At one stage an ANC Action Committee resolved that the applicant be eliminated after he was engaged in two incidents of physical confrontation with co-workers who also supported the ANC. Meanwhile the applicant was drifting further and further towards IFP which he saw as his political home. He joined the IFP Youth Brigade and the notorious Black Cats, which also aligned itself with the IFP. He came to know IFP leaders very well and saw them as his leaders. Hlongwane had been sent to Ermelo by the IFP from Kwa-Zulu-Natal where he was to work with the applicant to co-ordinate attacks and counter-attacks. Primarily the applicant’s task was to point out ANC supporters as well as their places of residence. Hlongwane would ensure that such people were killed and their homes attacked. It is in this context that all the offences were committed. We now proceed to deal with the different incidents and attacks and in so doing we only summarise the salient facts:-
1. THE MURDER OF ZINI SHONGWE AND ATTEMPTED MURDER OF SEVERAL OTHER PERSONS ON 30 JULY 1991 AT ERMELO
The attack occurred because the applicant and other Black Cats members were in search of Popolina Shongwe, the son of Zini Shongwe, whom they wanted to kill. When they could not find him they killed her. The killing was intended to avenge the murders of IFP supporters who were being killed in the ravaging conflict between the ANC and IFP.
Before the attack Hlongwane called the applicant, Obed, Sticka and other Black Cats members to Chris Ngwenya’s home, a Black Cats leader. He told then that he had received an order from Noah Mqobokazi, an IFP leader in the area, that Popolina be killed because he was suspected of being involved in attacks on IFP supporters. The applicant did not join the group when the first unsuccessful attempt was made to kill Popolina. On 7 October 1991 a second attempt was made and the applicant was present. He was given a grenade by Hlongwane who armed himself with a 9mm revolver. The others were armed with pangas and grass cutters. The proceeded to the home of Popolina. Mqobokazi had issued an order that if Popolina was not there, his mother should be killed so that when he (hopefully) attended her funeral they would have an opportunity to kill him. They proceeded to Shongwe’s house which they surrounded. Hlongwane kicked the door open. He entered the house. The applicant followed him and inside they found Zini and other patrons who were entertaining themselves with liquor. The house was apparently a shebeen. Hlongwane pointed Zini with a firearm and demanded to know from her the whereabouts of Popolina. She replied that he was not there and that she did not know where he had gone to. Hlongwane took he to each and everyone of the rooms there, searching for Popolina. At that stage Hlongwane had already ordered all the patrons to go into a separate room. When he could not find Popolina he told the applicant to throw the hand grenade into the room where the patrons were. This the applicant did. He removed the pin; threw the hand grenade into the room and closed the door. The applicant and his comrades all fled to Chris Ngwenya’s home. They heard the explosion as they were fleeing. The next day they heard that some people had been injured. Later the applicant and Hlongwane reported the incident to Mqobokazi who congratulated them "for a job well done".
All the said persons, including Zini, were unknown to the applicant and his co-perpetrators and neither Hlongwane nor Mqobokazi believed that they were members of an opponent political organisation (the ANC) and there was not even a suspicion to that effect. The applicant has testified to no (political) objective which was being sought when the patrons were attacked with a hand grenade. We have very carefully considered the evidence pertaining to the murder of Zini Shongwe and we are not satisfied that it was necessary to kill her to ensure that they could lay their hands on Popolina if he came to attend her funeral. The possibility, if not a probability, existed that Popolina would stay away from the funeral and not come back home at all in fear of being killed like his mother. There is also no evidence that any follow-up was made by the applicant and Hlongwane to monitor the whereabouts and movements of Popolina both before and on the day of the funeral so that he could be attacked. We are very alive to the fact that in the circumstances the applicant acted as a so-called foot soldier. We however remain convinced that the murder and attempted murders of the patrons were totally unjustified in the circumstances. In this regard we regret being unable to agree with another panel which previously granted Israel Nyoni Hlongwane amnesty for his involvement in the said incident. It is our considered view that amnesty should never have been granted in the circumstances of the case.
2. THE ATTACK ON UNITED DEMOCRATIC FRONT ("UDF") MEMBERS AT ISIKHOMPLAZI
Isikhomplazi was regarded as an ANC stronghold and its residents were generally targeted for attack. An order had been issued by Mqobokazi to Hlongwane to attack the owners of the shop. One evening the applicant took Hlongwane there to point out the place to him. On the day of the attack Hlongwane was in the company of the applicant who again pointed out the place to him. According to the applicant this was all he had to do. He did not take part in the execution of the attack. One person died in the incident and this information was conveyed to Hlongwane by Mqobokazi. There were no arrests following the incident.
3. THE MURDER OF TWO (2) UNKNOWN SCHOOL CHILDREN FROM THEMBISA SECONDARY SCHOOL
This incident occurred in 1991 as a result of an order from Mqobokazi. It was ordered that they be killed because they protested against the admission of Black Cats members as student at the school. At that time Black Cats members were very unpopular in Ermelo for their actions against residents, in particular ANC and UDF supporters. The applicant says any person who was opposed to Black Cats was regarded as an enemy and had to be killed. The two (2) scholars were known to the applicant as some of the scholars who were opposed to the admission of Black Cats members as students at the school and on the day in question during 1991 he pointed them out to Hlongwane. They were shot and killed on the scene. Reprehensible as this action was, there can be no doubt that it occurred as the result of the conflict between the ANC and the IFP of which the Black Cats were a part.
4. ATTACK ON THREE (3) ANC SCHOLARS
The attack took place at night and it was carried out by Hlongwane and the applicant, again on the orders of Mqobokazi. Initially the order was to track down and kill as many ANC leaders as possible but all attempts were in vain. Then Mqobokazi commanded that Hlongwane should kill any ANC supporter he encountered in the street, In his evidence which was confirmed by the applicant Hlongwane says:-
"…. since China (the applicant) knew them very well, the youth, he is going to show me all the youth and anyone whom we ever meet on our way we should shoot them, and unfortunately we meet these young boys from the night school. China was in front, I was with China most of the operations China will always be in front of me so that he could recognise the people before me. And China on that particular day, confirmed that these were members of the ANC, and the I took my firearm and shot them after China confirmed that they were ANC members. That’s how they were killed."
The applicant was asked how and where he knew the three (3) boys from and he replied that he used to observe them when they were going to attend ANC meetings. He did not say where and when such ANC meetings were held and he personally did not attend them. He goes on to say that he does not know if all the boys were fatally injured as the result of the shooting but accepts Hlongwane’s evidence that three (3) were killed. The probability is quite overwhelming that the attack was an indiscriminate attack by the applicant and Hlongwane and, as such, cannot be said to be an act directed at political enemies. It is clear that Hlongwane and the applicant were quite frustrated that they could not lay their hands on the apparently well-protected and vigilant ANC leader. To vent out this frustration they resorted to random and indiscriminate attacks on who ever they came across at night.
5. THE ATTEMPTED MURDER OF TILLY NKOSI AT OR NEAR WESSELTON DURING 1991
Tilly was one of the leading figures in the ANC Women’s League and was targeted to be killed. When the applicant and Hlongwane saw her in the street the applicant made a sign to Hlongwane who shot her. But she was only injured and did not die from the bullet wound which she sustained. Mqobokazi who had issued the order is said by Hlongwane to have been very frustrated that she was not killed. The attack constituted an attempted murder on both her and her baby which she carried on the back and it was a miracle that the baby was never injured. No prosecution emanated from the incident.
6. THE ATTEMPTED MURDER OF MR CRUCKET AT OR NEAR WESSELTON, ERMELO, DURING OR ABOUT 1991
Mr Crucket was attacked because it was believed that he was supporting the ANC whose members held gatherings at his home. According to orders from Mqobokazi, he was supposed to be killed and the applicant gave Hlongwane a description of his physical appearance as well as the location of his house. When he was shot at he ducked and some unseen people returned fire from his house. They were shooting at Hlongwane who was forced to retreat from he scene. Crucket was hospitalised as the result of the injuries he sustained. No prosecution ensued from the incident.
7. THE MURDER OF JACKSON KUBEKA IN KATHI TOWNSHIP NEAR OR AT ERMELO DURING OR ABOUT 1991
The 18-year-old youth was on his way home coming from a night school when he was shot by Hlongwane after the applicant had pointed him out. In his application the applicant initially stated that he vaguely recalled the attack; that he was willing to accept his involvement in its execution as testified to by Hlongwane and that he had no knowledge of the person referred to as Jackson Kubeka. At the hearing he suddenly recalled that, following the order by Mqobokazi that the ANC youth be attacked and killed, they proceeded from Charles Maseko’s home to Kathi Township. Near the sports ground they saw "a boy" (the deceased) who was approaching them. He says: "He looked familiar because of the way he walked, but I wanted to ascertain and be certain that it was him. I then proceeded and met him, approached him and greeted him and confirmed that yes, this was the person. I then signalled to Sugar Hlongwane to that effect and he proceeded to shoot him.
In the same evening they reported the incident to Mqobokazi and then next day they heard the victim had died. The applicant says he used to see the victim going to attend ANC meetings. We have noted that it is not the applicant’s evidence that Kathi Township was an ANC stronghold in which event there would have been some understandable basis for indiscriminate and random attacks on residents, and in particular, the youth of the area.
Our view is that the applicant is fabricating his version that he knew the deceased before that evening. His evidence is nothing less than an attempt to justify the attack on an unknown person, regardless of the latter’s possible political affiliation, In as much as it cannot be said that in the circumstances the attack was not committed for a personal gain, ill-will, spite or malice, it also cannot be said that it is ‘an act associated with a political objective’ as envisaged in the Act. This was clearly a venting out of frustration on innocent passers-by.
8. CRIMES COMMITTED AT DAVEL DURING 1991
After a while the applicant, Hlongwane and several other Black Cats members moved to Davel where they carried out a number of attacks on houses belonging to ANC supporters. They were doing so on the instructions of Mqobokazi after the latter was approached by Mkhonza, an IFP member and Davel Mayor, whose home had allegedly been attacked by ANC supporters. There were several other houses in the area belonging to IFP members which had also been attacked. Mkhonza wanted the IFP to avenge the attacks. For the present purposes we do not deem it necessary to detail the offences as these will be apparent in our decision in respect of which offences amnesty is granted or refused. But suffice it to say that it can be accepted that the applicant was acting on behalf of the IFP and executed orders from Mqobokazi who was an IFP leader.
In the result the application for amnesty is decided as follows:-
1. The applicant is REFUSED amnesty in respect of the murder of Zini Shongwe and the attempted murder of Pienkie Mirriam Shongwe; Guliwe Shongwe; Kenneth Dennis Masango; Jabile Jostina Khumalo; Wilson Petros Nkosi; Madoda Lionel Mbokani at or near Extensia, Ermelo on or about 30 July 1991.
2. Amnesty is GRANTED in respect of the murder of an unknown person and the attempted murder of an unknown number of people, all being supporters of the UDF/ANC at the Esikhomplazi Shop at or near Ermelo during 1990.
3. Amnesty is GRANTED for the murder of two (2) unknown scholars from Tembisa Secondary School, Ermelo, during or about 1991.
4. Amnesty is REFUSED for the murder of three (3) unknown scholars from a night school at or near Ermelo in or about 1991.
5. Amnesty is GRANTED for the attempted murder of Tilly Nkosi at or near Wesselton during or about 1991.
6. Amnesty is GRANTED for the murder of a man only known as "Crucket" at or near Extensia, Ermelo, during or about 1991.
7. Amnesty is GRANTED for the murder of Jackson Khubeka at or near Kati Township, Ermelo during or about 1991.
8. Amnesty is GRANTED for the murder and attempted murder of an unknown number of persons and the burning down of several houses at or near Davel during or about 1991.
In our opinion all the persons injured as well as the next-of-kin of the deceased in respect of the incidents for which amnesty is hereby granted, are victims and are accordingly referred for consideration in terms of section 22 of the Act.
SIGNED at CAPE TOWN ON THIS the 14 DAY OF November 2000.
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JUDGE D POTGIETER SC
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ADV N SANDI
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MR J B SIBANYONI
