DECISION
The Applicant was charged and convicted on 9 counts of murder, 6 counts of attempted murder and on charges relating to the illegal possession of arms and ammunition.
These convictions relate to an incident which occurred on the night of 15th June 1992. The Applicant, who was part of a gang of which Victor Kheswa, also known as the Vaal Monster, and who made a living inter alia by stealing cars which they then sold again, went out that night with Kheswa, Sipho Majosi, Hans Ndlovu, one Jabu, who has since died and one Tswi, in whose car they drove to Sebokeng. In either Zone 12 or Zone 13, and according to the trial court record in Moshoeshoe Street, they randomly shot at pedestrians. They then travelled in the direction of Sharpville and in a shack area known as Small Farms passed a vehicle, on which they opened fire. In all 9 people were killed and 6 wounded. It is not clear from the information put before the Panel which victims were shot in which of the incidents.
It appears from the judgment that the Applicant at that time pleaded guilty and had signed a declaration prepared in terms of Section 112 of the Criminal Procedure Act, that was read out to the Court. No evidence was led.
In the judgment on sentence, much was made of the "political colour" of the crimes. The version presented to court was that Kheswa had been the victim of an attack by ANC members in Sebokeng. The drive-by shootings were in retaliation and as revenge for this attack on Kheswa. Information before the Court was that Kheswa had played an important and leading role in the life of the Applicant. It was indeed Kheswa who influenced the Applicant to participate in the incident. The Court accepted that Kheswa had aligned himself with the IFP, that strife existed between the ANC and the IFP and that the Applicant, unfortunately had simply found himself aligned with the IFP. It was Kheswa's persuasion that led to his participation in the incident.
The Applicant in his bid for amnesty, filed two applications, both duly completed, signed and attested to within days of each other. The first application was dated 13 September 1996 and the second application dated 25 September 1996.
The Applicant claims that both were completed in the presence of and by his lawyers. His explanation was that it appeared that the first application had gone lost, not reaching the offices of the TRC which resulted in the 2nd application being filed. This does not seem plausible for the two applications were completed within 12 days of each other.
The two applications differ radically, the first alleging payment or financial reward for involvement in this (and other) incident(s), whereas the second omits such references.
Both applications allege however an instruction by Prince Zulu, a leader of the IFP in Kwa Madala Hostel.
The first application states that "the (political) objectives to achieve was to fight the communist and we were promised moneys in every mission ...." and further "I was doing a job which was under IFP instructions". In response to the question: "Did you benefit in any way, financially or otherwise?", the application states: "Yes, he gave me sometimes money or grocery". Responding to a question to explain the nature and extent of such benefits, the Applicant stated that "it differs from kinds of missions which varies from R200, R300 or even R400". He claims that they were sent by Baba Mtwana Zulu, member of the IFP to go and assassinate ANC members.
In the second application, made 12 days later all the above references to financial benefits are omitted.
In their stead there are two references to the AWB (Terreblanche) providing them with groceries "for support in the hostel". Again an order of Zulu is relied on for the incident.
A statement relating to the Boipatong massacre, for which the Applicant also lodged an application for amnesty, was obtained from the Applicant by an investigator of the TRC, signed by the Applicant on 17 January 1999. This statement was also bound into a bundle of documents, prepared for this hearing. It makes no specific reference to the present incident, yet in this statement the Applicant stated pertinently that he had "not been involved in other attacks prior to the one which took place in June 1992" which "one" on the face of the document can only be the Boipatong attack. Of interest, insofar as the implication of Zulu by the Applicant is concerned, is that the Applicant further stated that he did not work while staying at the hostel. In order to get food they would break into shops and steal food, all at the "commands from Mtwana Zulu".
The Applicant, represented by Ms Tanzer, testified at the hearing. In his evidence in chief he confirmed his signature on both applications as well as on the statement of 17 January 1999. He testified that he was born 14 February 1973 and had lived in Evaton until 1991 when he was suspected by some of his ANC friends of having been involved with an arson incident, was kidnapped by them but managed to escape and fled to Kwa Madala Hostel where he knew others from the township had fled to. There he joined the IFP.
On the 15th of June 1992, Zulu called the Applicant, Sipho Majosi, Tswi, Hans Ndlovu and one Jabu to his room in Kwa Madala Hostel and told them that since they were from Sebokeng, they should go and shoot at residents in the township, ANC people. He supplied them with weapons, brought by Darki Xongo, prepared Indelesi for them to drink and sprinkle their clothes and told them that they were to use Tswi's Ford to conduct the attack. The weapons they were handed included AK47s as well as guns. He thinks he personally was handed an AK47 (At the trial he pleaded guilty to the possession of a .38 revolver).
They then at approximately 19h00, travelled to Sebokeng and in Zone 13 shot at people standing at a taxi rank. They shot through the windows, not stopping the car, as they drove by. They proceeded towards Sharpville and near a shack area, known as Small Farms, shot at the passengers of a taxi-bus pulling a trailer as they overtook them. It seemed as if the taxi-bus was on a trip. They then returned to Kwa Madala hostel, reported to Zulu, who was pleased that they had completed the job and returned the weapons to Xongo in Zulu's room. Zulu then again prepared Indelesi for them to cleanse themselves.
He was not rewarded for and did not benefit from the attack.
He was unemployed and made a living from stealing vehicles, some of which they would sell and others they would use as spare parts. This he did with Victor Kheswa, Themba Khubeka and others. He was part of Kheswa's gang. Referred by Ms Tanzer to the various statements relating to financial rewards and benefits in his first application, he said that he knew nothing about it and did not tell that to whoever inserted it in his application.
He also denied having had made any reference to the AWB or Terreblanche to whoever filled out his second application.
He could not explain how that information was disclosed. People would take statements, they would make mistakes, he would correct them. He did not even tell them that he was a member of the IFP.
Responding to questions from the Committee, he stated that he knew that he would not be entitled to amnesty, had he done what he did as a job for payment. He could not explain why he referred to a job that he did. He received orders from Zulu.
Mr van der Hyde in cross-examination on behalf of Zulu, put it to the Applicant that Zulu had never given instructions or supplied weapons as alleged. In further cross-examination the Applicant confirmed that he was part of the Kheswa gang, that the police probably had knowledge of their criminal activities, that they were involved in criminal activities and not political crimes, and that the gang was, in the true sense of the word, a criminal gang.
In ord0er for the Applicant to be entitled to amnesty, the Committee has to satisfy itself that:
1. the Applicant committed the crimes, for which he seeks 0amnesty, with a political objective and;
2. that he has made a full (and truthful) disclosure of all material facts related to the incident.
The Applicant relies solely on the alleged instructions by Zulu, which, as communicated by Mr van der Hyde, Zulu denies. Zulu though did not testify and the denial carries less weight than the allegation by the Applicant, made under oath. There is however the fact, not explained by the Applicant, that at the trial in the statement by the Applicant which provided the record of the i0ncidents, no mention whatsoever was made of Zulu. Furthermore, the version presented was that the attack was in revenge of an attack on Kheswa directed at persons they expected to find at the scene where the shooting took place. The question also has to be asked why, if the instruction of Zulu indeed was to randomly shot at people they would encounter in 0Sebokeng, where only ANC people were to be found according to the Applicant, they did not shoot at more people, which they would certainly have passed by that early in the evening. A further factor which tends to suggest that Zulu may be falsely implicated, is the allegation by the Applicant, contained in the statement of 17 January 1999, that they would break into shops and steal food at the command of Zulu, whereas in his evidence he was clear that he made his living by stealing and selling cards.
A further question that remains unsatisfactorily answered, to say the least, is the explanation of (or inability to explain) the financial reward, stated in the first application. The explanation that it would have been included by mistake by whoever assisted him, without him ever having mentioned such rewards, is simply not plausible. It is more probable that he was told, after completion of the first application form, that him having committed crimes for financial gain, he would not qualify for amnesty, which would also better explain why a second application was made a mere 12 days after the first. He would certainly not have been informed within 12 days of signing the first application that it had gone lost. He also testified at the hearing that he knew that he would be refused amnesty if the crimes were committed for financial gain.
It was argued on behalf of the Applicant that whatever reference to financial gain had been made, had probably been intended to refer to financial gains from the criminal activities of the Applicant, flowing from his involvement in the Kheswa gang. This is likewise difficult to conceive because of the fact that other than in the version of the Applicant at the trial, Kheswa did not figure in the present version. If Kheswa were to be linked to such cash rewards as disclosed in the first application, the inevitable deduction would have been that they were contracted as a hit-squad for gain.
It was further, argued that statements in writing which did not fit his testimony should be disregarded because the Applicant could not read and had no formal schooling at all. No evidence to this end was introduced. The Applicant was in fact merely asked whether the handwriting in the applications were his handwriting. He also testified that he had made many statements and corrected some of the mistakes of those who took the statements. Although the Applicant testified that both applications were completed by his lawyer on his behalf, it was argued that this on the face of the documents was probably not correct. It may well be the situation, having regard to the glaring spelling mistakes (although of course lawyers also make spelling mistakes), but it does not take the matter any further.
Under the circumstances the Committee is not satisfied either that the Applicant committed the crimes for which amnesty is sought with a political objective as envisaged by the provisions of the Act, or that the Applicant has made a full and truthful disclosure of all material facts related to the incident.
Amnesty is accordingly REFUSED.
SIGNED AT CAPE TOWN THIS THE 20TH DAY OF FEBRUARY 2001
JUDGE S MILLER
ADV N SANDI
MR W MALAN
