DECISION
The Applicant, Sokhele Gwala, is applying for amnesty in respect of two counts of murder and four counts of attempted murder committed on the 7th May 1991 at Kwandeni. In his application dated 25 September 1996, he states:
"9(a)(iv) During May 1991 there was a great friction between two parties i.e. Inkatha and the ANC. The incidents first taken place in the place called Amalangeni in the district of Hammersdale. The members of the Inkatha murdered an ANC female member whose name was Thombiza Kweyama. She was 23 years old. After they had murdered her I went to them in order to maintain peace because I knew my colleagues were going to pay a revenge which they accepted. After a month or so I recognised them in company with KwaZulu policemen. The policemen demanded a firearm from my father-in-law which they didn't find. My father-in-law was an ANC member. Failing to find a firearm, they went back to the police station, being disappointed. After two days the same mob, together with the ZP's came to my father-in-law again where they shot him to death. The incident took place in the evening at about 18h00. The deceased's name was Mphikwa Gasa. After they had killed him they said I was the second one to be killed. There was nothing to do expect to defend myself against them. I therefore attacked and killed two plus four were seriously injured."
"10(b) The offences are politically associated due to the point that the two parties were in question. The members of Inkatha wanted to rule over the whole place of Emalangeni forcefully whereas the place was regarded ANC. This lead to a great friction as a result of the killings. I went to Inkatha members after they had killed our female members. The reason was that I didn't want war but peace. They pretended that everything was alright but failed to comply. The deceived me by accepting my pleading for peace but they made a fool of me. They further organised the ZP's to assist them in killing my father-in-law. It was hard to resist because at that time they had already killed two of our members, Thombiza Kweyama and Mphikwa Gasa. I myself was also in danger to be killed too. I loved my party and I still love it, that is why I decided to pay a revenge on behalf of it. I don't doubt that if they didn't kill two of my members such incident of revenge should not have happened. I'm a person who always hates violence. I therefore request the Government of National Unity to scrutinize this political matter and judge whether I ...........grant me amnesty."
"10(c) Did you benefit in any way, financially or otherwise?
Yes, because the Inkatha members who wanted to rule over the place left Amalangeni to Ekwandeni (also known as Ekwamandeni) in Unit 6. We then ruled the place."
"10(d) If so, explain the nature and extent of such benefits:
After they had fled to Ekwandeni, peace was maintained in the area. That was the end of the violence."
"11(a) I was not instructed by an organisation, but on behalf of my relatives as well as the members of my party who had been killed I committed the offences."
In a letter dated 5 November 1999 he said, inter alia:
"The offences in question were committed due to the following grounds. I, Sokhele Gwala, usually paid Thulani Cele a visit where he (Cele) was residing in the place called Emalangeni. Emalangeni was an area where most of the ANC members were staying. During that time Mabaso members who were murdered by us were staying at Emalangeni; they were IFP members. Although they were residing at Amalangeni area, but they had moved to a place known as Ekwadeni, the place where IFP members were staying and it was where the shooting took place. The Mabaso members were shot and killed simply because I was being suspected by them that it was me who had caused them to leave their area of Emalangeni to Ekwandeni. They knew very well that I was ANC member. When I was at their new area at Ekwandeni they suspected that I might kill them. Those members were looking for me to be assassinated in such a way that two of Mabaso girls fell in love with the ZP Police who were the cause of the IFP members so that a conspiracy of killing me could be exercised.
"Mbaso's house was attacked in the evening at about 19h00. In that operation I was assisted by the ANC members that I have mentioned above. Those members I have mentioned hated the KwaZulu Police for their conspiracy of killing. I was a man who was in charge of this operation and it was established by me."
In a subsequent affidavit dated 28 August 2000 he said:
"I involved myself in committing the said offences because I hated the Mabaso family from Ekwandeni for being IFP members who were politically active and were mainly involved in killing ANC members. I had been told that the Mabaso clan wanted to kill me, although I cannot remember the different names of people who informed me.
During that period there was political violence throughout Hammarsdale and many people were killed. This was due to the conflict between the two political parties i.e. ANC and IFP.
Before this particular attack, the Mabaso clan had killed a girlfriend of my friend, Thombiza Kwyama and my girlfriend's father, Mphikwa Gasa from Emalangeni area.
At that time I was staying at Njobokazi and I did not move to any other area. I informed my uncle of the rumours that the Mabaso clan had conspired to kill me, and for advice. He advised me to attack first before they can do anything that might cause harm to me or my family.
My uncle, Siyazi Hlengwa, who is now late, proceeded to Harry Gwala in Pietermaritzburg and brought me firearms so as to carry out the operation. Siyazi was an ANC chairman of the Youth League in the area of Mjobokazi.
We then proceeded to Mabaso house on the same evening. We got there at approximately 19.30. Difer, Bongani and Vovana got inside the house and fired shots at the occupants of the said house, whilst Doda, Mhanjelwa and I remained outside surround the house to keep vigil. I heard screaming from inside and some occupants ran out in an attempt to flee. That is when we fired shots at them.
This operation was carried out under the command of Uncle Siyazi who was our leader and a chairperson. I did not at any stage receive any instruction directly from Mr Harry Gwala to attack or kill victims. After this attack the area became quiet.
I only heard on the following day that two persons were killed and four injured in this incident. I knew some of the Mabaso family members by sight and cannot recall their names. This family later moved to an unknown place out of Hammarsdale. I've learnt that they relocated to Inchanga, although I am not sure of that."
The two persons who were killed were:
1. Kayelhle Mabaso, a boy aged 5
2. Thabile Mabaso, a boy aged 5
who were both shot through the chest and spine.
Those injured were:
1. Fakazile Mabaso, a woman aged 57, who was shot through the chest and stabbed five times.
2. Lungile Mabaso, a girl aged 11, who was shot through the chest.
3. Sigongile Mabaso, a woman aged 27, who was stabbed twelve times. (She may have been shot in the leg.)
4. Jabu Mabaso, a woman aged 26, who was shot and stabbed once.
The Applicant, in his evidence, spoke of the conflict between IFP and the ANC in the Emalangeni area, an area he visited because he had a girlfriend, Lea Gasa, there. He apparently met her friend, Thombiza Mabaso, who was the girlfriend of Thulani Cele, a leader of the ANC Youth League in the area. Thulani Cele, who also gave evidence, said he only started knowing the Applicant after his girlfriend's death, which appeared to conflict with the Applicant's version.
Although the Applicant speaks of ANC/IFP conflict, it appears that he held no office in the ANC and apparently took no part in its activities. In fact his evidence that he joined the ANC in 1987 is open to question. There may well have been political turmoil by 1991 but what is equally clear from his evidence was that there was very real personal or family hostility in the region. In addition to the two deaths already referred to, we were told of the deaths of Thulani Cele's brother, Bheki, his cousin, Mo Ngcobo and Jabulani Ngcobo, who was Sibongile Mabaso's boyfriend and Simangele Mabaso, one of the sisters. None of these people were office bears in either party and although he referred to Thombiza Mabaso as a political activist, it later appeared from his evidence that this was not the reason for her death.
He described the Mabaso family as members of the IFP but this appears to be a conclusion drawn from the fact that some of them were seen in the company of known members of the IFP and one was the girlfriend of a member of the IFP. However, in his evidence-in-chief, he at first said:
"The intention was to kill the father and the son, his name was Mangini, as well as the girls in the family whose boyfriends were KZP members."
Under cross-examination he said one daughter was going out with a member of the KZP. Despite this he made it clear that when they arrived at the Mabaso family they were looking for the entire family except for young children, but when they got there they asked for the father and when they were informed he was not there they started firing.
We turn now to the reasons given for the attack. The Applicant said time and again that the conflict started because of political differences and that he had a political objective. However, when he came down to giving factual reasons for the attack, we were given the following version. At some time prior to the attack he was in the vicinity when a group of people attempted to kidnap Thombiza Mabaso. She called out his name and when he approached them four of the group ran away. three remained with her including Jabu Mabaso and Sibongile Mabaso. He spoke to them and they told him they wanted to kill her because she was Thulani's girlfriend. He said they were not going to and led her away to a bus stop. A week thereafter she was killed. At that time, so he said, there was not any plan to kill him because the conflict was still just general conflict in the area. He only became a target after he rescued her. He was told by members of the Gasa family that they had seen some members of the Mabaso family when Mr Gasa was attacked. He continued by saying that when he met the Mabaso daughters in town they stated he was the one person remaining, he was next in line. This was someone like Jabu who spat as she was saying this. Elsewhere in his evidence he said when he approached Mr Mabaso to discuss the matter, one of the daughter's said:
"This son of a bitch is crazy, let's leave him."
He, however, said he had no grudge against her. This dispute was before the kidnapping.
Thereafter, he explained the problem to his uncle who happened to be the local ANC Commander. A Suggestion was made that he should meet the Mabaso family to try and resolve the issue. However, his uncle was of the opinion that those people might kill him first before they even had a discussion and therefore it would be better if he was pro-active and took the initiative to attack first and he did so. The alleged political objective to be achieved was that the Amalangeni area would be an ANC stronghold and that is what happened because all those who were not ANC affiliated left the area. This overlooks the fact that the Mabaso family had already done so.
The Applicant then gathered his six allegedly ANC comrades, took the firearms obtained by his uncle and proceed to the Mabaso home with the intention of killing the father, son and four daughters. When they arrived there they asked who was at home and were told the father and boys were not there. The Applicant then gave the order to shoot and they commenced shooting. Some of his group were armed with knives as well as firearms and they went inside the huts and perhaps stabbed the people time and again. They then left.
Thulani Cele, who gave evidence on behalf of the Applicant, stated that it was not the policy of the ANC to attack women generally. He further agreed that before any attack is carried out the authorisation of the Executive Committee would be required and that if the Applicant took the decision on his own without authorisation, he would be wrong; he should follow certain procedures. He further explained that Thabasile Mabaso, Sibongile's sister had been his girlfriend before he broke up with her and started an affair with Thombiza. He suspected that she was jealous of this relationship. He agreed that during his evidence he had said that when Thombiza was abducted she was asked if she was still involved with him and told if she continued she was going to be killed.
Sibongile gave evidence denying the accusations levelled at her and members of her family and explaining that they were in fact members of the ANC. The Applicant had conceded that it was possible they had taken out ANC membership cards for Fakazile and Phumzile Mabaso were produced.
We have not set out all the evidence by any means but merely those passages we consider to have a direct bearing on our decision. The Applicant was, in our view, an unsatisfactory witness whose evidence had to be treated with caution. Having regard to the evidence as a whole, we reject the contention that the attack was not one of revenge or was one which met the requirements of a political objective as set out in Section 20(2) of the Act. It appears clear that the attack on this family comprising women and children was committed out of personal malice, ill-will or spite as referred to in Section 20(3)(f)(ii) of the Act. We are also satisfied that if there was any political ill feeling between the parties the attacked aimed at the women of the family was grossly disproportionate to any such dispute or ill-feeling. There was no evidence that the daughters of the family had played any part in any of the killing the Applicant referred to.
Having regard to the above and to the other requirements and provisions of Section 20(3) of the Act, we have decided that the Applicant is not entitled to amnesty and the application is REFUSED.
DATED AT CAPE TOWN THIS DAY OF 2001.
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WILSON J
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DE JAGER AJ
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ADV S SIGODI
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