DECISION
These are applications for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act, No 34 of 1995 ("the Act"). The matter relates to the killing of Philemon Mesehla ("the deceased") at or near Mooihoek, Nebo in the former Lebowa on or about 15 August 1990. Pursuant to the incident, all of the Applicants were convicted of murder and sentenced to direct imprisonment.
All the applicants testified in support of the application. The widow of the deceased, Mrs Helen Manapo Masehla, was legally represented at the hearing but elected to submit an affidavit, exhibit "A", setting out he position instead of testifying tin view of her emotional state following the tragic death of her husband. She basically left the decision of the matter in the hands of the Committee. Her legal representative, Adv. Vilakazi, presented the evidence of Moses Masehla, the uncle of the deceased.
The version of Applicants is that at all material times they were all members of the African National Congress ("ANC") and the self defence unit ("SDU") in Mooihek which is a rural village subject to tribal structures. A senior ANC member and community leader at Mooihek, Mr Makena, was killed on 10 August 1990 while driving his taxi between Tafelkop and Mooihek. The ANC and SDU suspected that this incident was linked to incidents of violence affecting taxis in the area in which a number of ANC members were targeted and killed. These incidents were regarded as politically motivated attacks on the ANC and its members by anti-ANC elements within the taxi industry. The ANC and SDU leadership decided that this calls for retaliation in defence of the organisation and its membership and to send a message to its opponents that ANC interests would be protected at all costs.
A community meeting was held at the residence of local headman on 12 August 1990 where the killing of Mr Makena was discussed. The meeting was chaired by the headman’s assistant, Mr Kaine Moekoena. A report was given of the circumstances of the killing as well as the identity of the suspected perpetrators. The members of the SDU and youth were instructed to apprehend the suspects and bring them before the community. The commander of the SDU, Joseph Phiri was ordered to lead the search. The meeting which was attended by a majority of ANC members or supporters also resolved that those responsible should be executed.
A further meeting was held at a school in Mooihoek on 15 August 1990 for the purpose of a report back on the search for the suspects. Joseph Phiri reported to the meeting that the suspects had indicated that the deceased hired them to kill Mr Makena. After some discussion a decision was taken that a delegation would approach a sangoma to get a further view on the matter. This delegation would approach a sangoma to get a further view on the matter. This delegation included Joseph Phiri and Jeffrey Masuku, the second Applicant, who had actually made the suggestion that the meeting consult a sangoma. After an unsuccessful attempt to consult the sangoma who was initially proposed, the delegation managed to see another sangoma. Upon their return to the meeting at the school, Joseph Phiri reported back that the sangoma also identified the deceased as the person responsible for the killing of Mr Makena. A group was sent to collect the deceased as well as his uncle, Moses Masehla, and deliver them to the meeting. The deceased was lured from his home, apprehended and brought to the meeting. A different group secured the attendance of Moses Masehla at the meeting.
The deceased was questioned about the killing of Mr Makena. He confessed his role in the killing. He repeated the confession to Moses Masehla, after the latter wanted to make sure that the deceased was indeed involved. The meeting then decided that the deceased should be executed. Some petrol and a tyre were collected and the deceased taken into the mountain where he was executed by means of the necklace. After this body was set alight, the crowd fled from the scene. All of the applicants were present throughout the proceedings and played a greater or lesser role therein. They all associated themselves with the killing of the deceased who was regarded as an enemy of the ANC. They regarded it as their duty as SDU members to act against a political enemy such as the deceased. The ANC would benefit from the killing because it would send a message to their political enemies intending to kill or attack their members, that such actions will not be tolerated. This would protect their members and defend the position of the ANC within the community against those bent upon weakening its influence.
The evidence of Moses Masehla largely coincided with the version of Applicants save for his denial that the deceased confessed to the killing at the school or that he elicited a repetition of the confession from the deceased. He indicated that there is no animosity between himself and the applicants. There is accordingly no reason for them to fabricate a story against Mr Masehla. It does not bolster their case in any way to falsely allege that Mr Masehla asked the deceased again after the latter’s confession whether he was indeed involved in the killing. This appears to us to be highly probable, seeing that the confession must have taken Mr Masehla by surprise. This is perfectly understandable in view of the fact that he was the deceased’s uncle.
Mr Masehla’s version that he was taken from his house to the meeting where he said nothing at all and later simply returned home, strikes us as extremely odd and highly improbable. He testified that he did not even bother to contact the police or enlist help from other quarters even though he knew that the deceased would be attacked and killed by the group that removed him from the school. Of course, the clear effect of applicants’ version is that Mr Masehla went along with the action against the deceased. This could possibly explain some of his conduct, although it is not necessary for present purposes to make any positive findings in this regard. Suffice it to say that we are satisfied that the evidence of Mr Masehla does not disturb the thrust of applicants’ version, and certainly does not establish a sufficient basis for rejecting any aspect thereof.
Having carefully considered the matter, we are satisfied that the killing of the deceased constitutes an act associated with a political objective and that applicants have made a full disclosure of all relevant facts.
In the result the applications comply with all the requirements of the Act and amnesty is hereby GRANTED to the applicants in respect of the killing of Philemon Masehla on or about 15 August 1990 at or near Mooihek, Nebo, Lebowa.
In our opinion Helen Manapo Masehla is a victim in respect of the killing and is referred for consideration in terms of section 22 of the Act.
DATED at CAPE TOWN this 14 day of November 2000
_____________________________ JUDGE DENZIL POTGIETER
_____________________________ ADV N SANDI
_____________________________ ADV F BOSMAN
