DECISION
Edward Mothibe (the 1st Applicant) applies for amnesty in respect of the attempted murder of and robbery of a firearm from Sgt. Phadi during 1993 at Daveyton, his participation in an attack on the Zenzele informal settlement during August 1993 and the murder of Arnold Kotelo, the attempted murders of Ernest Zweni and Lucky Tabu and the robbery of a vehicle belonging to Mr Kotelo at Daveyton on 1st August 1993.
Patrick Mandla Ndlela (2nd Applicant) applies for amnesty in respect of the murder of Mr Kotelo, the attempted murders of Messrs. Zweni and Tabu and the robbery of Mr Kotelo's motor vehicle.
The evidence of the 1st Applicant may be briefly summarised as follows:
He was a member of the African National Congress (the ANC) and Umkontho We Sizwe (MK). He left the country in 1986 and underwent military training in Angola. He returned to South Africa during 1992 and was deployed to assist the Self Defence Units (SDU's) in the Johannesburg and East Rand areas. His commander was Colonel Zakes.
During 1993, the exact date of which cannot be remembered, the 1st Applicant was in the company of a number of SDU members at Tlokwa in Daveyton. They saw a policeman, Sgt Phadi, entering a house. They decided to disarm him of his firearm as the SDU was in need of weapons. The 1st Applicant and three other persons, including one Elias Kobe followed the policeman into the house. The applicant grabbed hold of Sgt. Phadi and the said Kobe disarmed him of his firearm and shot him in both legs. They then fled the scene. Elias Kobe kept possession of the stolen firearm.
During 1993 there was a great deal of violent conflict between supporters of the ANC on the one hand and supporters of the Inkatha Freedom Party (the IFP) on the other. During either April or May 1993 supporters of the IFP attacked a train at Daveyton. It was decided by ANC supporters that a revenge attack should be carried out against the residents of the Zenzele informal settlement which was an IFP stronghold.
A huge group of approximately five hundred people launched the attack against Zenzele one night at about midnight. The 1st Applicant, who was armed with an AK47 rifle was a member of the attacking group. The attack lasted approximately four hours. The 1st Applicant shot indiscriminately a number of the shanty dwellings in the settlement. During the attack the residents of the settlement defended themselves by firing back at the attackers. The 1st Applicant does not know whether he personally killed or injured anyone during the attack. He heard later that one person was killed and several were injured during the attack.
After the attack the ANC supporters retreated to the Chris Hani Camp. Shortly thereafter they learnt that the residents of Zenzele were holding a meeting. They suspected that they were planning a revenge attack. In order to pre-empt such attack they decided to launch another attack. A smaller group, consisting of approximately fifty people, of which the 1st Applicant was one, proceeded to Zenzele.
The residents of Zenzele were, however, waiting for them and fired at them as they approached. A police car arrived on the scene and the 1st Applicant's group fired at it. A further van owned by a policeman also arrived and was fired upon. The applicant's group then retreated to the Chris Hani Camp. Nobody was killed or injured in the second attack.
During or about March 1993 the 1st Applicant received information from certain comrades, including one Makana Maloi, that Arnold Kotelo, an attorney from Daveyton, was assisting the Pan Africanist Students Organisation (PASO) with legal services and also financially. At that time there was conflict between the Congress of South African Students (COSAS), which was aligned to the ANC, and PASO. According to the 1st Applicant PASO was gaining the upper hand in this conflict, particularly in Kwa Thema which is not far from Daveyton. The 1st Applicant then went to report this information to his commander, Colonel Zakes, at Shell House in Johannesburg. He couldn't locate Zakes and he made his report to Mr Jackie Selebe, a senior ANC official. Mr Selebe informed him that he would request the East Rand Peace Forum to investigate the matter.
Several months passed without the 1st Applicant hearing from Mr Selebe. He again went to Shell House but neither Mr Selebe or Colonel Zakes was there. He then spoke to Mr Peter Mokaba, also a senior ANC official, about the matter. Mr Mokaba expressed a reluctance to take any action.
The 1st Applicant then decided to use his own initiative. He convened a meeting of SDU members at Daveyton and it was here decided that Mr Kotelo should be killed. A unit was formed to carry out the deed. The unit consisted of the 1st Applicant, one Fanie (who was an MK cadré who had received military training abroad), the 2nd Applicant, Dingaan Molefe (now deceased) and Colin Mashigo (now deceased).
During the morning of 1st August 1993 the 1st Applicant and the said Fanie went to Mr Kotelo's house in Daveyton. There they spoke to a person who was washing a car. He told them that the Kotelo's had gone to Pretoria and would only be returning that night.
After leaving Mr Kotelo's house they saw two persons, namely Lucky Tabu and Ernest Zweni, who they later learnt were policemen who lived close by to Mr Kotelo's house.
They thereafter planned the killing of Mr Kotelo. It was decided that the 1st Applicant would not accompany the others on the mission. He would proceed to his flat in Hillbrow, Johannesburg where the others would report to him after the operation. The plan was that they would first ensure that the two policemen, Messrs Jabu and Zweni, would not cause an obstruction to their attack on Mr Kotelo. They would then abduct, Mr Kotelo and then shoot and kill him.
The 1st Applicant handed four firearms over to Fanie, who would command the operation, and then departed for Hillbrow.
Late that night Fanie, Colin Mashigo and two ladies arrived at the 1st Applicant's flat in Hillbrow. Fanie informed the 1st Applicant that he had taken the ladies on the mission to act as a "shield" in the event of them coming across a police patrol in such an event they would inform the police that they were accompanying the ladies to a night vigil. He reported to the 1st Applicant that they had neutralised the two policemen, Tabu and Zweni, by shooting them in a Shebeen which was approximately one hundred metres away from the house of Mr Kotelo. He also reported that they had kidnapped Mr Kotelo when he returned to his house from Pretoria, that they drove him away in his car, shot and killed him, left his body next to the road and that they had abandoned the motor vehicle in the Johannesburg city centre.
During December 1993 the 1st Applicant reported the killing of Mr Kotelo to Colonel Zakes. Colonel Zakes expressed shock at the report as he was unaware of the mission.
The 2nd Applicant testified to the following effect:
He was a member of the African National Congress Youth League (ANCYL) and also of COSAS. During 1993 there was much tension and political violence in Daveyton - PASO were fighting with COSAS and the ANC and IFP were also fighting each other. He was present at the meeting when Makana Maloi provided the information that Mr Kotelo was assisting members of PASO. Makana Maloi apparently got the information from a PASO member who was captured and tortured.
The 2nd Applicant confirmed the evidence of the 1st Applicant concerning the decision to kill Mr Kotelo and the formation of a unit to carry out the operation.
He stated that at approximately 20h00 on 1st August 1993 he, Fanie, Colin Mashigo, Dingaan Molefe and two ladies, namely, Maggie Dladla and Marapane, proceeded to a Shebeen which was in the close vicinity of Mr Kotelo's house. They found Lucky Tabu and Ernest Zweni in the Shebeen. Fanie instructed that the two policemen should be disarmed. They were taken out of the Shebeen and searched but were found to be unarmed. The two policemen then returned to the Shebeen. Fanie then stated that their firearms may be with the Shebeen owner and that they should be shot before they arm themselves. The 2nd Applicant, Mashigo and Molefe then went back into the Shebeen. Mashigo shot Lucky Tabu and Molefe shot Ernest Zweni at close range. Both Lucky Tabu and Ernest Zweni were seriously injured as a result of the shooting.
They then proceeded to Mr Kotelo's house where they hid themselves and awaited his arrival. After a while a motor vehicle arrived and stopped at the gate. Mr Kotelo and his wife, who was carrying their young child, alighted from the vehicle. As Mr Kotelo was opening the gate the members of the unit approached him from behind, grabbed him, forced him into the motor vehicle and drove away with him. After travelling a short distance Fanie ordered the vehicle to be stopped. He got out of the vehicle with Mr Kotelo and shot and killed him. They then drove to Johannesburg where they abandoned the vehicle.
Mrs Monica Kotelo, the widow of the deceased also testified at the hearing of this matter.
She stated that she and her husband and child went to Pretoria at approximately 15h00 on 1st August 1993. Their visit to Pretoria was unplanned and they left for Pretoria without any notice on an urgent basis. She accordingly denied the 1st Applicant's version that they were told during the morning that the Kotelo's were in Pretoria. She stated further that when they returned home that night her husband parked the motor vehicle in the road in front of their house. They all then went to the back door of the house. When there a number of people appeared, one of whom she identified as being the 1st Applicant. He was armed with a gun and said that they wanted the motor vehicle and demanded that the keys be handed over. Mr Kotelo handed over the keys. They then took his jacket, wristwatch and wallet and went to the motor vehicle, firing shots into the air. They returned after a short while and demanded that Mr Kotelo start the car for them as they could not get it to start. Mr Kotelo then left with them. That was the last time that she saw her husband alive. She stated that the attackers appeared to be drunk and she could smell alcohol on them.
She testified that her husband showed very little interest in politics and that he was not politically active. After the death of her husband she found an ANC membership card amongst his belongings. The card was produced at the hearing. It reflected that the card was issued to Mr Kotelo but contained no information as to when it was issued or as to when it would expire. Mrs Kotelo expressed doubt to the notion that her husband would have provided financial assistance to PASO. She was unaware of him having any connection or relationship with the Pan Africanist Congress or PASO.
We are of the view that Mrs Kotelo was an honest and truthful witness and we accept her testimony as to the events which took place on 1st August 1993.
It is evident from her version that the prime objective of the attackers was to rob the Kotelo's of their motor vehicle. This is clear from the fact that they demanded the keys for the vehicle and having got possession of the keys left their victims at the back of the house with the intention of driving away in the vehicle. They only returned and kidnapped Mr Kotelo because they could not get the vehicle to start. Their intention to rob is also evidenced by the fact that they forcibly removed and took Mr Kotelo's jacket, wristwatch and wallet.
The evidence of the applicants that they were informed during the morning of 1st August 1993 that the Kotelo's were in Pretoria is also false as it is clear from Mrs Kotelo's evidence that they only knew that they were going to go to Pretoria at approximately 15h00 in the afternoon. A further unsatisfactory feature of the 1st Applicant's evidence in this regard is the contradiction that exists between his testimony and a prior written statement made by himself. In his testimony he stated that he received information that the Kotelo's had gone to Pretoria from a person who was washing a car at their house. In a written statement dated 22nd April 1997 the 1st Applicant stated the following, "From thereafter we gathered. The day before I and other comrades went to Kotelo's house. We found his wife (Monica) and said to her we want to see Kotelo and she respond to us that you wouldn't see him because he would go to Pretoria tomorrow and he will be back late at night".
We also find it to be highly improbable that Mr Kotelo was actively assisting PASO in their fight against COSAS. He was not a politically active person and there is no acceptable evidence to suggest that he would have indulged in such activity. The applicants themselves admitted that they took no steps to confirm the veracity of the information given to them by Mokana Maloi. On weighing up the evidence and taking into account the fact that Mr Kotelo's purported support for PASO was raised for the first time in these applications it would seem that the contention that he was a PASO supporter is a fabrication designed to give their criminal deeds a political motive.
We are also of the view that the reasons given by the applicants for the shooting of Messrs. Tabu and Zweni are so improbable that they should be rejected as being false. The stated reason for attacking the said two persons was to pre-empt the scenario that they may have come to the assistance of Mr Kotelo in the event of them hearing a gunshot that may have been fired during the course of the kidnapping of Mr Kotelo. There is no doubt that the shooting of the two policemen in the Shebeen in the presence of other patrons created a far greater potential of jeopardising their mission than what they were trying to prevent, namely, the remote chance of those policemen coming to the assistance of Mr Kotelo.
We are accordingly not satisfied that the applicants have given a truthful account of events relating to the incidents which occurred on 1st August 1993. We are also of the view that the crimes committed by the applicants on that day were not politically motivated.
We are, after careful consideration, of the opinion that notwithstanding the fact that the 1st Applicant gave untruthful evidence in regard to the crimes committed on 1st August 1993, his evidence relating to the disarming of Sgt. Phadi and the attacks on the Zenzele informal settlement may be truthful and that he should be given the benefit of the doubt in this regard. His testimony in respect of those incidents stands uncontroverted and the account given is not improbable. We are also of the view that both the disarming of Sgt. Phadi and the attacks on Zenzele were politically motivated and that the applicant has made a full disclosure of all the relevant facts pertaining thereto.
In the result:
1.1 The amnesty application of Edward Mothibe relating to the kidnapping and murder of Arnold Kotelo, the robbery of the vehicle belonging to Arnold Kotelo, the attempted murder of Lucky Tabu and the attempted murder of Ernest Zweni is REFUSED.
1.2 The amnesty application of Edward Motibe relating to:
a. the attempted murder of and the robbery of a firearm from Sgt. Phadi during 1993 at Daveyton; and
b. the attacks on the Zenzele informal settlement during August 1993 is GRANTED.
2. The amnesty application of Patrick Mandla Ndlela is REFUSED.
SIGNED AT CAPE TOWN THIS THE
: DAY OF
: 2000.
: JUDGE S MILLER
: JUDGE N J MOTATA
: ADV N SANDI
