: DECISION
The Applicants applied for amnesty in respect of; their convictions and sentence on 11 May 1994, in the then Supreme Court, Durban, for the murder of Mkhuliseni Phineos Ngcobo on 7 January 1993 at or near Maphephethweni in the district of Inanda, KwaZulu Natal.
The first Applicant testified that he was a member of the ANC having joined in 1992. Prior to this, he and the rest of his family had been members of the IFP. The area they lived in was predominantly IFP with ANC members being a minority. When it became known that the family had joined the ANC, the first and second Applicants' father was called to a meeting at the local councillor's house where the family was given an ultimatum to rejoin the IFP or leave the area. Applicants' father then went to the local Induna one Gwala and complained about this ultimatum. Gwala would not intervene. The matter was referred to the Chief who eventually agreed that the family should leave the area. He gave them a letter to a Chief in an adjoining area requesting that they be given a place to stay.
What is clear from this and other evidence is that there was political violence in the area between members of the IFP and members of the ANC. This violence had claimed the life of the Chief's predecessor. As a result of this difference in political affiliation a feud developed between the Applicants' family and that of the deceased. The Applicants all testified that prior to their joining the ANC they had enjoyed good neighbourly relations with the deceased's family and that the deceased had been a friend of theirs.
What seems clear is that it was only once the family had joined the ANC that they were subjected to a prolonged campaign of harassment and violence which resulted in, amongst other things, the deaths of family members, kidnappings and attempts on their lives and wholesale intimidation. Much of the violence took place after they had left the area and settled elsewhere. Attempts to use the legal process and the police appear to have been fruitless. The Applicants believed that the deceased and his family were responsible for these incidents.
Turning to the incident that resulted in the death of the deceased. : The first Applicant testified that he had received a letter from his prospective father-in-law requesting him to come and fetch his fiancee and to take her to his home because the deceased and the Applicant were involved in an ongoing feud and he did not want to be involved in it. A similar request had been made to the deceased who was also the fiance of another daughter. Because of this and in the light of the prevailing violence, the first Applicant requested the other Applicants, a brother and two cousins, to accompany him to his father-in-law's kraal to fetch his fiancee. First and second Applicants were armed with home-made firearms and third and fourth Applicants were armed with sticks.
All the Applicants said that when they arrived near the father-in-law's kraal they saw the deceased who then fired at them with a home-made firearm. The deceased then ran back to the kraal and locked himself in one of the huts. The Applicants chased him and fired shots at him. When they got to where the deceased was hiding, they fired further shots at the hut. One of the Applicants climbed onto the roof and removed some of the thatch to try to make an opening to get into the hut. There was corrugated iron below the thatch and he could not gain entry.
The other Applicants managed to smash a hole in the door and then gained entry to the hut. The first Applicant shot the deceased at close range and the third and fourth Applicants hit him with their sticks. They left the area and returned to their home once they realised he was dead. d They were arrested a few days after their father went to the police and reported the matter.
The second, third and fourth Applicants also testified that they were all members of the ANC and their evidence was much the same as that of the first Applicant. They confirmed his evidence in most respects.
When asked why they had killed the deceased the Applicants said that he had been involved in acts of violence and that this family had harassed them. They hoped that by killing him they might teach the family a lesson and thus bring about peace. They also conceded that they became very angry as a result of the shots fired at them by the deceased and the history of harassment by his family.
On an analysis of all the evidence, we are satisfied that there are no material differences between the testimonies 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. It was put to the Applicants that the conflict between the two families was personal rather than political and emanated from the fact that the Applicants' family had built over some graves belonging to the deceased's family. This basis for the feud was never raised at the trial or in any of the statements to the police and was raised before us for the first time. In any event, it is apparent that the nature of the violence was political. 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-sections (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 conviction as set out above.
The Committee is of the opinion that the relatives and dependants of Mkhuliseni Phineos Ngcobo 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 23RD DAY OF MARCH 2001
JUDGE D POTGIETER
ADV N SANDI
MR I LAX
