DECISION
This is an application in terms of Section 18 of the Promotion of National Unity and Reconciliation Act, No 34 of 1995. The Applicants are seeking amnesty in respect of a number of offences flowing from different incidents of violence which occurred in the KwaZulu Natal region at different stages.
When the hearing commenced the legal representative for the Applicants, Adv Mohammed, submitted that Khumalo was not the only Applicant in the matter. According to her submission Jabulani Wiseman Mzimela, Madala Zimakuhle Mnyandu and Dumisani Malunga were wrongly cited as implicated persons when, in fact, they had applied for amnesty in respect of some of the above offences.
Malunga is said to have applied for amnesty in respect of the Reservoir Hills incident which occurred in 1988. According to the information contained in the bundle before the Committee, correspondence took place between the TRC office and the legal representatives of Mzimela and Mnyandu. It appears that the TRC's Evidence Analysts always laboured under the impression that the two were not Applicants in respect of any offences and in the result nothing was done by the Applicants and their representatives to put the record straight. Further correspondence shows that the TRC mistakenly informed Mzimela that his application for amnesty had been received and he did not receive any correspondence thereafter. It would appear that this was a reference to an application for indemnity form which was received by the TRC from the Justice Department.
Mnyandu never received any letter from the TRC to confirm receipt of his application form and the only time he was contacted was in November 1999 when the TRC investigator, Mr Mbatha, came to see him at Westville Prison. At that stage Mnyandu was being referred to as an implicated person which error Mnyandu says he rectified with Mbatha. The latter undertook to investigate the matter. This was the last he heard from the TRC as Mbatha never came back to him. It was further submitted on Malunga's behalf that he timeously applied for amnesty in 1996 but never kept a copy of his application form. He never heard from the TRC as to what progress was being made in considering his application. He also did not make a follow-up to ascertain the fate of his application. Ms Mohammed made it quite clear that she was requesting the Committee to hear the evidence of Malunga on the assumption that Khumalo had applied for amnesty for the Reservoir Hills incident and that it was properly before the Committee. The applications are being opposed by the victims on the ground that the Applicants never applied for amnesty.
The Evidence Leader, Ms Thabile Thabethe, advised the Committee that according to the TRC office investigations Mzimela had previously received a letter from the Justice Department which acknowledged receipt of his application for indemnity. This was immediately before the TRC process commenced and the Justice Ministry undertook to forward his application to the Amnesty Committee as soon as the TRC process commenced. This is clearly what caused Mzimela to believe that a proper application for amnesty had been received by the Committee. At the end of the submissions the Committee decided to hear Khumalo, Mzimela and Mnyandu but not Malunga. However, Malunga was not being permanently excluded from being heard as further investigations still had to be conducted to elucidate the matter. The trio were being heard on the basis that there was at least a prima facie case that they had previously applied.
But the same could not be said of Malunga. It was also submitted by Ms Mohammed that her instructing attorney made contact with one Tom Madlala who was previously the Chairperson of the African National Congress ("ANC") branch at Westville. According to Madlala there was a certain stage when the TRC personnel forwarded a list of amnesty applications to attorneys Mlaba, Makai & Associates. Madlala states as far as he is aware, two of the persons from whom instructions were taken by a member of the company were Mzimela and Mnyandu. The Committee specifically asked all the interested parties to state whether or not they had an objection to admission of such evidence. No objection was raised. This is one of the factors which influenced the Committee to hear Mzimela and Mnyandu. We have to date not been furnished with any persuasive reason why the Committee should hear Malunga at a later stage. There is still no credible indication that he ever applied for amnesty. We now proceed to deal with the evidence that was led and we start with Khumalo.
Khumalo testified that he is currently serving a long term of imprisonment for two counts of murder, two of attempted murder and one of armed robbery for his participation in the Reservoir Hills armed robbery. He was also involved in other incidents where people were killed.
1. THE MURDER OF SIMI NZUZA IN CLERMONT IN JANUARY 1987
At the time of the occurrence of this incident in Clermont, Khumalo claims that he was a political activist and a supporter of the United Democratic Front ("UDF"), the internal wing of the ANC. He states that there was widespread political unrest in the black township of Clermont and the police were randomly shooting the youths and residents; supporters of the Inkatha Freedom Party ("IFP") also attacked the UDF supporters and the police sided with the IFP. Although Nzuza was ostensibly a UDF supporter, he was killed because he was against retaliation by the UDF supporters against the police. He would indulge in liquor at a time in which comrades in the township had "banned" consumption of alcohol. In general he behaved himself in a manner that was deemed to be unbecoming of a comrade and, as a result, it was widely suspected that he was a police informer. Khumalo states that one of their fellow comrades, Dumisani, was shot by the police with live ammunition. He lost one of his eyes in the incident. Comrades had vowed to avenge his attempted murder. After a group of comrades, including Nzuza, had gathered at the place where they were waylaying the police so they could ambush them, Nzuza suddenly became restless and impossible. He was making a lot of noise and did not agree with Khumalo and other UDF activists that they should attack the police. Khumalo left them there and there was an exchange of fire between Khumalo's group and the police. Later, rumour had it that Nzuza was frequently seen in the company of the police and members of the South African Defence Force ("SADF"). He was pointing out comrades to be arrested. Meanwhile the unrest and strife in Clermont deteriorated. Khumalo states that it was on this basis that he gave a direction to UDF comrades who saw him as a leader that Nzuza must be killed. At that stage they were still hiding themselves in one of the houses which they used as a base. They also learnt that some of their comrades, viz. Aron Matse, Team, Desmond and other Clermont Youth League members has been arrested. Khumalo was subsequently arrested as well. Whilst they were in detention they were subjected to very severe torture and this further infuriated them. They were determined to search for Nzuza and kill him.
When Mnyandu, Tami and Vusi Tabethe (deceased) were released they visited Khumalo. They told him that they had just seen Nzuza running down the street. he had entered a certain house. There were several youths, including female comrades who had gathered, and everyone there was resolved that now was the time for Nzuza to be killed. Mzimela was leading the crowd that was armed with stones and dangerous weapons. Khumalo says he was armed with a home-made knife. Eventually Nzuza was apprehended by the group and assaulted. Whilst he was being assaulted a police vehicle came and the crowd dispersed. Khumalo says although he played a central role in the events that led to the killing of Nzuza he was not able to touch him because the crowd was too big and every person wanted to assault him. However, he fully associated himself with the actions of the crowd and is seeking amnesty for the murder.
As we shall see in due course, Mzimela and Mnyandu testified and confirmed their involvement and participation in the incident.
2. THE MURDER OF VUSI MADUNA IN CLERMONT IN OR ABOUT MARCH 1987
Khumalo states that it was on a Saturday morning when they were preparing to attend a funeral service of one of their comrades who was killed in the course of the conflict with IFP supporters. It was Khumalo, Jabulani, Mzimela, Mzi (deceased), Mandla Gumede and several other UDF supporters whose names Khumalo states that he is unable to recall. As they were about to board the bus, Vusi Maduna came. He greeted them and requested to talk to Khumalo separately. This was refused by Khumalo and his comrades who suspected that Maduna wanted to attack him. At that stage it was already suspected that he was an informer and that he was informing the police on the activities of comrades in Hammarsdale. He was also believed to have been responsible for the loss of many comrades' lives in Hammarsdale. Khumalo states that they took him to a place behind the post office and questioned him about his alleged activities in Hammarsdale. Khumalo says Maduna was responsible for the divisions which existed within the Hammarsdale Youth Congress ("HAYCO"). He also co-ordinated the activities of the reactionary Pietermaritzburg Youth Forum which they believed received funds from the security police. Maduna could not give satisfactory answers to their questions and they assaulted him. The situation got so chaotic that the other youths who were waiting for buses to go to the funeral came and joined in assaulting Maduna. He was eventually stabbed to death. Khumalo states that he, Mnyandu and Mzimela took part in the action (as to which see the further evidence below).
3. THE ASSAULT WITH INTENT TO DO GRIEVOUS BODILY HARM TO BHUNU DLAMINI AND SIPHO MBATHA IN CLERMONT DURING OR ABOUT 1987
In his evidence in chief, Khumalo first admitted that there is nothing political about this incident. Briefly, crimes of theft and housebreaking were being committed in the area in which Khumalo lived and it was suspected that he and his comrades were responsible for these acts. With the view to clearing his own and his comrades' names he says he went to see Dlamini. He questioned him about the incidents. In the altercation that ensued Khumalo ended up assaulting Dlamini with a sjambock. Initially Khumalo had also testified that previously he gave Dlamini a quantity of dagga to sell for him. The dagga was given to him by his stepfather, Cleopatras Sikakane who was a policeman. We are only mentioning all these details to demonstrate our initial doubt that there was anything political about this particular incident. Later Dlamini confessed and implicated a co-perpetrator, one Sipho Mbatha. Khumalo and other comrades in the area forced them to undress; they were sjambocked and forced to walk naked in the streets. In his written statement Khumalo states that the political objective of the assault was to show that the UDF and its affiliates were opposed to crime in the township. The result was that all the stolen items were recovered and returned to their owners. Having regard to the evidence as a whole, we are not persuaded that this incident was associated with a political objective. In our view, Khumalo was motivated to settle a personal dispute and there was no question of advancing any political cause through the assaults.
4. THE RESERVOIR HILLS INCIDENT ON OR ABOUT 26 AUGUST 1988
Khumalo states that before that day he was approached by Diba, Sifiso Kwela and Maxwell Ndluyake who were all UDF comrades. They suggested tot him that they all leave the country since they were being harassed by the police. Khumalo states that prior to that time he was in detention with Kwela and both Kwela and Maxwell had just been released from detention. They discussed the matter of leaving the country and joining the ANC and Umkhonto weSizwe ("MK"), its military wing. They believed that once they had received military training they would be able to return to the country to fight the white minority government. He associated himself with the objective. His companions told him that they had been informed by one Dumisani Malunga that at the Asoka Hotel in Reservoir Hills takings of R40 000 or more were made on Fridays. They said they had already discussed with Malunga how and when they could go there and rob the money. They suggested to him that they could spend the money on travelling costs and other necessities when they flee the country. The remainder they would give to their families to spend. Khumalo states that initially he was quite reluctant to be involved in this action but because h wanted to prove his political commitment to his comrades, and rebut suspicions that his police stepfather was using him as an informer, he agreed. On the day they were going to carry out the operation he tried to escape but unfortunately for him he met them on the way. It was Sifiso Kwela and Maxwell Ndluyake. They asked him where he was going, apparently suspecting that he was plotting to escape. They told him that they had come to fetch him so they could go and meet Dumisani Malunga. The latter was going to get them "muti" (traditional medicine) in order that they could carry out the action without fear. Khumalo states that for his own safety he decided to give them the impression that he was enthusiastic about the mission and joined the group.
We do not wish to traverse all the evidence on how the robbery was carried out as it is quite clear that Khumalo is not being truthful in his testimony. For the sake of brevity, when they came to the hotel they drew out their guns and demanded money. In the ensuing struggle shots were fired inside the hotel. Khumalo who up to that stage was standing guard at the door, entered to lend support to his companions. He says he could not fire because his firearm did not work. But he pointed those who were inside with the firearm and ordered them not to move. He says he took some money from the safe because he could not just stand there and do nothing. He did not want to risk being labelled a sell-out. He was carrying the safe. In the attack Kisten Loushendran Reddy and Lisson Kisten Reddy were killed. They had been stabbed and shot with firearms. Somasundram Moodley and Sanjish Dukhi sustained injuries and were nearly killed. Dukhi who had fired a shot at the attackers was struck by a bullet on the shoulder when the assailants returned fire. According to Khumalo, they money was later divided amongst themselves each one being given an amount of about R1000,00. Khumalo says he took R300,00 and paid compensation for seduction to the parents of his girlfriend who had two children out of the association with him. He says he used the remainder of the money to buy himself clothes to prepare himself to flee the country. He states that in the end they never fled the country because after the robbery they lost contact with one another. There can be no doubt that this robbery was carried out for personal gain.
We shall now proceed to deal with the evidence of Mzimela and Mnyandu.
According to the new application form which he completed at the hearing Zamukuhle Madala Mnyandu applies for amnesty for the following offences:
1. The murder of Mapumulo;
2. The murder of Sibiya Makatini;
3. The murder of Vusi Maduna;
4. The murder of Simi Nzuza;
5. The attempted murders of Messrs Jamile, Mr Kolela Kulu Kawula and Lulu.
It was directed by the Committee that for the purposes of the hearing only the Vusi Maduna and the Simi Nzuza incidents would be heard. Mnyandu is presently serving a long term of imprisonment, having been convicted of the murder of Mapumulo, the two counts of escaping from prison and for unlawful possession of a firearm. Mnyandu confirms that he took part in the chasing and killing of Nzuza. He stabbed him with a knife. He says he also believed that Nzuza was working for the police. He also confirmed his participation in the murder of Vusi Maduna. He states that when the latter ran into a bus he was one of the assailants who broke the window and entered. They stabbed him and dragged him out and when he was outside he was again stabbed and burnt with petrol. He states that he attacked Maduna because he believed that he was an informer. He says that on a certain day the Clermont youths were visiting Hammarsdale for a political funeral. There were many police in the streets who had set up roadblocks to prevent them from attending their comrades' funeral. The police demanded that they disperse within five minutes. When they refused to do so one of the police called Vusi Maduna and asked him to tell them that they should disperse. Vusi climbed up the police vehicle, a Casspir, and said "Comrades, these boers say you must disperse now". Mnyandu says he and other comrades were very shocked by this behaviour of Maduna. H was acting as a spokesman for the police. After he had shouted, the police started beating up the comrades with batons and some of them were arrested. Mnyandu adds that it was widely believed that Vusi Maduna was responsible for the death of the comrades whose funeral they were going to attend. He says he was encouraging UDF activists who had fled Hammarsdale to come back and when they did so they would be killed by the IFP and Security Forces. This made their comrades to believe that Maduna was part of a conspiracy to eliminate comrades. They decided that Vusi must be killed. There was no discussion amongst themselves or an instruction from a leader that he should be killed. The decision was taken spontaneously because they were angry.
Cross-examination and further questioning by Members of the Committee revealed that there was arguably objectively speaking no convincing basis for the suspicion that Vusi Maduna was an informer but this does not detract from the fact that the Applicants subjectively bona fide believed that he was an informer and that he was selling out comrades to the police.
The younger brother of the deceased, Msane Nkosi Maduna, testified that the deceased who was a teacher by profession was previously chased away from school by parents in Ladysmith. They were accusing him of teaching ANC politics. On his return to Hammarsdale he was elected chairperson of HAYCO and this made him an enemy of the IFP which regarded Hammarsdale as its area of fiefdom. Their home was repeatedly attacked by IFP supporters. The witness also testified that he was also a UDF comrade and a political product of his deceased brother. He states that he is not opposing the Applicant's request for amnesty because his brother was a very peaceful man. His family is quite prepared to forgive the Applicants but they have certain problems with Khumalo's evidence who in his view is posthumously and deliberately denigrating his brother. He disputes that his brother was an informer and believes that Mnyandu and Mzimela must have believed so because they were politically immature.
In the new amnesty application which Mzimela was allowed to complete at the hearing, he is seeking amnesty in respect of the following offences:
1. The murder of Vusi Maduna;
2. The murder of LBS Makatini; and
3. One count of robbery.
It was agreed that his evidence would only deal with the murder of Vusi Maduna and the other incidents could possibly be dealt with at a later hearing should the Applicant succeed in persuading the Committee that he duly applied for amnesty in respect of these further incidents before the cut-off date.
Mzimela testified that he was a supporter of the UDF and a member of the Clermont Youth League at the time of the occurrence of the Vusi Maduna incident. We have already dealt with the evidence of his co-Applicants in regard to why Vusi Maduna was suspected of being an informer and how he was killed. It is not necessary to repeat that evidence save to state that Mzimela confirms his participation in the commission of the murder. He states that he stabbed him twice with a bush knife after he was dragged out of the bus by the crowd. He states that he was convicted and sentenced to 16 years; imprisonment for his role in the murders of Mapumulo and Makatini. He states that he also believed that Vusi Maduna was an informer and at the time it was the policy of the UDF that police informers be killed for betraying the cause of the struggle for liberation.
After considering the explanations and submissions which were made on behalf of the Applicants, we have decided to accept the Applicants' testimonies that they bona fide believed that their application forms were duly and properly before the Committee. In making the finding we are also mindful of the fact that many applications which came from many parts of the country never made their way to the Committee. This is particularly the case with those Applicants who filed such applications at a time when they were in prison. We further accept that when Khumalo completed his application form he bona fide believed that by stating that "At the moment I am facing charges for murder and robbery which happened on 26/08/88" that was sufficient indication to state that he was seeking amnesty in respect of the Reservoir Hills incident. We are also alive tot he fact that in many of these cases we are dealing with relatively unsophisticated persons with no benefit of legal representation and proper advice on how the forms should be completed. We accordingly direct that Mzimela and Mnyandu's evidence be heard on other incidents to finalise their applications. However, we are not satisfied that Dumisani Malunga duly applied for amnesty before the cut-off date and we REJECT his request to be allowed to testify about his involvement in the Reservoir Hills robbery.
We shall now proceed to state our conclusions on the merits in respect of the different applications and incidents. We start with the Reservoir Hills incident.
1. Sibongiseni Philani Khumalo is REFUSED amnesty for the following offences:
(a) The murder of Kisten Loushendran Reddy;
(b) The murder of Kisen Reddy;
(c) The attempted murder of Somasundram Moodley;
(d) The attempted murder of Sanyith Dukhi;
(e) Armed robbery with aggravating circumstances (as defined in Section 1 of Act 51 of 1977);
(f) Unlawful possession of an unlicensed firearm and ammunition.
The evidence does not establish that this is "an act associated with a political objective" as required by the Act.
2. Sibongiseni Philani Khumalo is REFUSED amnesty for the assault with intent to do grievous bodily harm on Bhunu Dlamini and Sipho Mbatha in Clermont in or about 1987. There is nothing in the evidence to suggest that the incident is "an act associated with a political objective" as required by the Act.
3. SP Khumalo and ZKM Mnyandu are GRANTED amnesty for:
(a) The murder of Simi Nzuza in Clermont during or about January 1987;
(b) The murder of Vusi Maduna in Clermont during or about March 1987.
4. JW Mzimela is GRANTED amnesty for the murder of Vusi Maduna in Clermont during or about March 1987.
We accept that the two incidents occurred as the result of conflicts of the past and it is indeed a notorious fact that in those days any person who was suspected of being an informer ran a substantial risk of being killed. Significantly, when the brother of Vusi Maduna testified he alluded to the possibility that one of his brother's comrades in the UDF may have been jealous of him and spread the rumour that he was an informer. There is no evidence that the deceased was truly an informer. There is also no question about the Applicants not having given a full disclosure of the relevant facts in regard to the two murders.
It is hereby recommended that the dependants or next-of-kin of Vusi Maduna and Simi Nzuza be declared victims in terms of the Act.
SIGNED AT CAPE TOWN ON THIS 2ND DAY OF APRIL 2001
JUDGE A WILSON
A-J D POTGIETER
ADV N SANDI
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