: DECISION
The Applicants applied for amnesty in respect of: their respective convictions and sentence on 28 September 1993, in the then Supreme Court, Durban, for some or all of the following offences which took place on 27 April 1992 at or near Mzimbaza area, Umkomaas, KwaZulu Natal.
1. The murders of
1.1 Sikhumbuso Innocent Cele;
1.2 Thulani Patrick Mlumbi;
1.3 Dinwabembona Mnyakamelwa Gumede;
1.4 Delani Richard Gcaba;
1.5 Thembinkosi Christopher Mfayela; and
1.6 Bhekinduna Isaac Shange.
2. The attempted murders of:
2.1 Vivian Jabulani Ntombela;
2.2 Hamilton Gumede;
2.3 Douglas Mahayiko Duma;
2.4 Mandlakayise Justice Gumede;
2.5 Thulasizwe Clement Khumalo;
2.6 Patricia Msomi;
2.7 Mzikanyise Elphord Luthuli; and
2.8 Bhekisisa Ndlovu.
3. Unlawful possession of arms and explosives in contravention of the Arms and Ammunition Act 75 of 1969.
Jabulani Doda Cele ("Cele") and a co-accused who did not apply for amnesty were also convicted of being in unlawful possession of arms and explosives in contravention of the Arms and Ammunition Act 75 of 1969 arising out of an incident on 18 May 1992, at or near Esperanza, Umzinto, KwaZulu Natal, during which they were arrested.
Isaac Mhlekhona Mthendeni Shange ("Shange") testified that he grew up in the Mashiwase area and that he had joined the ANC during 1991. In approximately October 1991, after a meeting at the Chief's kraal, the community who were predominantly IFP supporters chased away the minority who were predominantly ANC supporters. This was the start of the political violence that erupted in the area. He and many young people who were part of the ANC faction fled from this violent attack to a neighbouring area called Inkwali. There they were also not welcome and they hid in a nearby forest. Further incidents and violent attacks ensued with fighting by both side. Eventually Shange and his friends fled to the Umgababa area, which was an ANC refuge.
Once at Umgababa he, his co-Applicants and other people from his area joined some sort of self-defence units and engaged in training with firearms and other weapons. They were involved in a number of attacks and incidents of political violence against neighbouring areas that were prevalent at the time. Some of them returned to the forests around Inkwali with the object of launching attacks on IFP supporters.
During April 1992, Shange and others decided to attack a bus, which travelled from the Inkwali and Mashiwase areas. They took this decision after discussions among themselves. He insisted that no-one had given an order in this regard. They decided on the bus attack because it was a way of their "getting their enemy in large numbers" as a way of fighting back at those who had forced them to flee their homes. A further reason for the attack on the bus, which emerged in evidence, was that the group thought one Bantu Hamilton Gumede ("Gumede") would be on the bus. The reason they wanted to kill Gumede was that they regarded him as the IFP leader responsible for the death of a Mr Mtlolo, who had provided them with assistance. As it turned out, he was in fact injured in the attack on the bus but the attackers had not noticed him during the attack.
Shange together with his co-Applicants and four others, who were not arrested or charged arising out of the incident, obtained weapons from one Master Shange and then went to the scene of the attack which was on a district road surrounded by sugarcane fields. They hid in the cane and waited for the bus.
One of them stopped the bus by pointing his firearm at the driver and when the bus had stopped, the others emerged. They approached the bus. Shange testified that the driver was ordered to alight as were the women and children on board the bus. They did this because they had no intention of attacking women and children. This was because their group had never seen women and children attacking them.
While the women and children were leaving the bus two men tried to escape. They were shot and killed. Once all the women and children a had left the bus the attackers asked that those men who were not from the Inkwali and Mashiwase areas also leave the bus. Apparently one man did so and he was allowed to escape.
After this some members of the group opened fire at the occupants of the bus causing the other deaths and injuries which gave rise to the convictions above.
Jabulani Tunene Ncokwane ("Ncokwane") was the only person to enter the bus and fire at the occupants. Shange said that Cele had not fired at the bus because he was standing some distance away keeping a lookout. The group was armed with an SP12 pump action shotgun (Shange), three AK47 assault rifles (Ncokwane had one) a handgrenade (Cele) and two home firearms.
After the attack, the group ran back to Umgababa where they returned the weapons to Master Shange who instructed them to hide the weapons. He congratulated them on the attack. Shange was arrested two days later at his place of employment.
Ncokwane then testified in support of his application. His evidence was similar to Shange's in many respects. He confirmed that he was an ANC aligned person having joined in 1992, who had come to the area from Mtwalume. He was thereafter forced to flee the area as a result of political violence. He confirmed the group's actions and their political objective. He testified that he was the person who entered the bus and opened fire. He also described the details of the incident in which he was arrested while moving some of the weapons from Umgababa to Mtwalume.
Cele also testified in support of his application. He said he joined the ANC in 1992. His evidence was much the same as that of the other Applicants. He confirmed their evidence insofar as it related to him. He confirmed that he had been keeping watch and had not participated in the shooting. However, he acknowledged his association with the political objects and the actions of the others in the group. He also spoke in some detail about the circumstances surrounding their arrest. He confirmed that the police had opened fire and that he had returned the fire. He said a helicopter had been following them and he shot at it and apparently caused some damage, which resulted in the helicopter landing abruptly. He said he had been charged separately for this. However, at a later stage the charges were withdrawn. He confirmed that he was applying for amnesty in connection with this aspect as well.
Gumede testified as to h is version of what had happened and denied that there was political violence in the area. He also denied that he was involved with the IFP or a leader of any faction.
Anna Elizabeth Ndlovu ("Ndlovu") testified that she was on the bus on the day of the attack. She confirmed her statement to the police and her evidence at the trial. However, she tried to deny having said in her statement and having testified that the Applicants requested the women and children to leave the bus. She insisted that she had requested this of the Applicants.
On an analysis of all the evidence we are satisfied that there are no material differences between the testimony of the Applicants. There are some minor differences between the evidence of the Applicants but no more than would be usual bearing in mind that this instance occurred seven years before the hearing. With regard to the evidence of the objectors, this primarily aimed at denying the political nature of the conflict that was raging in the area at the time. However, it is apparent from other sources like the police crime intelligence reports, the violence monitors and even the trial judge's comments, that the violence was political in nature. Accordingly, we are satisfied that the Applicants have made full disclosure of all relevant facts.
It remains to be decided whether the Applicants meet the requirements of Section 20(1) of Act 34 of 1995, as to whether "the act, omission or offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of sub-section (2) and (3).
The Committee is satisfied that the offences were committed in the course of the conflicts of the past and that all the Applicants fall within the provisions of Section 20(2).
The Committee, after considering the guidelines set out in Section 20(3) is further satisfied that the offences committed were associated with a political objective.
In the result, amnesty is GRANTED to the Applicants in respect of their convictions as set out above.
Jabulani Doda Cele is also granted amnesty in respect of the acts, omissions and offences arising from the incident that took place on 18 May 1992 during which he was arrested.
The Committee is of the opinion that the relatives and dependants of the deceased persons mentioned in 1.1 to 16 above as well as the injured persons mentioned in 2.1 to 2.8 above, are victims and they are referred to the Committee on Reparation and Rehabilitation for consideration in terms of Section 22 of Act 34 of 1995.
SIGNED AT CAPE TOWN ON THIS 13TH DAY OF MARCH 2001
JUDGE ABM WILSON
MR JB SIBANYONI
MR I LAX
