DECISION
This is an application for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act"). The matter relates to two incidents which occurred at or near Tembisa, Kempton Park, during 1992 and which formed the subject matter of the following offences of which Applicant was convicted in the Witwatersrand Local Division of the High Court during 1998:
1. Murder of Reverend Namane on or about 25 June 1992;
2. Attempted murder of Samuel Mandla Songo on or about 26 August 1992;
3. Unlawful possession of firearms and ammunition.
Applicant is presently serving an effective 25 years imprisonment pursuant to his said convictions. The application was opposed by the next-of-kin of the late Reverend Namane. Various witnesses, including the Applicant, testified at the hearing. The salient features of the respective versions presented at the hearing will now be summarised commencing with that of Applicant.
Applicant grew up in Tembisa in the district of Kempton Park where he also attended school. During or about 1985 - 1986, whilst still at school, Applicant became politically active. He was elected as the chairperson of the local branch of the Tembisa Youth Congress in his area, namely Ndulweni Section, during 1987. As a result of his political activities, Applicant was frequently harassed by members of the security police at the time. At some stage during 1987, Applicant was introduced to the structures of Umkhonto weSizwe ("MK"), the military wing of the then banned African National Congress ("ANC"), inside the country by his brother-in-law, George Bila. Shortly thereafter, Applicant underwent a crash course in the handling of arms and explosives inside the country and eventually went into exile during the latter part of 1987 when he received military training under the auspices of MK in Angola. During 1989, Applicant was deployed in Tanzania where he performed duties as an MK immigration officer. He eventually returned to South Africa early in 1992 when he settled with George Bila at Sedebing Section in Tembisa. He soon established contact with the ANC and MK structures inside the country and was eventually introduced to Patrick Thwala and Tabiso Radebe who were in charge of the underground MK structures in Tembisa. These persons briefed him fully on the local situation and indicated that there is a need to cater for his security. To this end, Tabiso Radebe furnished him with a Stechkin pistol and ammunition. Applicant was instructed to participate in the military training of members of the Self-Defence Units ("SDU") in Tembisa, which he duly did. Applicant reported to Thwala and Radebe in regard to the SDU training. During this time, Applicant was approached by Radebe who briefed him about the late Reverend Namane, who was unknown to Applicant. Radebe indicated that Reverend Namane had become a problem to the local ANC structures in Tembisa because of his opposition to the ANC programme in the area. Reverend Namane was apparently co-operating with the old community council structures in the area. Applicant was informed that the MK structures had taken a decision that Reverend Namane should be eliminated and that Applicant should execute the operation. Soon after the briefing, Applicant was furnished with an AK-47 assault rifle for the purposes of the assassination. Applicant's orders were to pose as a person who was in urgent need of accommodation and that he should use that legend to gain access to Reverend Namane's home. After an earlier unsuccessful attempt to see Reverend Namane, Applicant eventually managed to find Reverend Namane at home on the day of the incident, namely 25 June 1992. He pretended to be looking for urgent accommodation and engaged in discussions with Reverend Namane in regard to the purchaser of a house. After the discussions were concluded and as Applicant was leaving, he shot Reverend Namane three times outside the house with the Stechkin pistol furnished to him by Radebe. He had earlier decided that it would be impracticable to use the AK-47 assault rifle which was furnished for that particular purpose. Applicant escaped from the scene in the vehicle of his brother-in-law, George Bila. One of the local comrades, Morena, accompanied Applicant on the mission but waited for him in the vehicle. A few days after the incident Thwala came to Applicant's place with a newspaper and briefed Applicant on the incident. According to the newspaper article, Reverend Namane, did not die on the scene but was taken to hospital in a critical condition. Thwala was concerned and, in fact, angry about the fact that Reverend Namane did not die in the attack. He indicated that arrangements were being made for Applicant to urgently leave the area and to go into hiding with comrades in Mpumalanga. He also indicated that the situation would be monitored and if needs be, another cadre would be deployed to kill Reverend Namane in the hospital. Applicant went into hiding as arranged at KwaMshangu in the then KwaNdebele, presently Mpumalanga. He later learnt that Reverend Namane eventually died in the hospital.
During the period of his stay in KwaNdebele, Applicant was compelled to return to Tembisa on a number of occasions due to inappropriate logistical arrangements and the fact that his hosts in KwaNdebele were not provided with sufficient resources in order to cater for him. He kept close contact with Thwala and reported to the latter regularly on the situation in KwaNdebele. Thwala was anxious not to have Applicant spend time in Tembisa and wanted him to remain in hiding. During the course of one of his visits, Applicant was introduced to a Mr Albert Tleane who served on the executive committee of the South African National Civics Organisation ("SANCO") in Tembisa and who was also the chairperson of the Tembisa Residents Association. Applicant subsequently maintained contact with Mr Tleane. During one of Applicant's Later visits to Tembisa, he was advised by Mr Tleane that the ANC structures in Ivory Park were experiencing serious problems with a certain Mr Samuel Mandla Songo. The latter was one of Applicant's former school teachers. Applicant was informed that Mr Songo was linked to the former community council structures and was frustrating the activities of the ANC structures in Ivory Park. Mr Tleane informed Applicant that the ANC structures in Tembisa had decided that Mr Songo should be eliminated and had appointed Mr Tleane to oversee the operation. A further decision was made that Applicant should be ordered to execute the elimination of Mr Songo. In view of Mr Tleane's leadership position, Applicant accepted the assignment. He was furnished with a vehicle, which was borrowed by Mr Tleane from one of the residents of Tembisa, for the purpose of surveilling the movements of Mr Songo. The instructions were given to Applicant in the presence of one of the Tembisa SDU operatives, Ashley Sesing. The latter accompanied Applicant during the surveillance operations. They were subsequently joined by another operative, one Simon. The initial surveillance proved fruitless. Applicant made regular reports on the matter to Mr Tleane. The latter was anxious for the operation to be finalised and he prevailed upon Applicant to expedite the matter. Applicant decided to call at the home of Mr Songo in order to create an opportunity to assassinate him. After some unsuccessful attempts, Applicant eventually managed to find Mr Songo at home. He brought Mr Songo under the false impression that he needed some assistance in order to secure a decent job. An arrangement was then made that Applicant would approach Mr Songo at school where the matter could be finally attended to. On the day of the incident, namely 26 August 1992, Applicant went to Mr Songo's school accompanied by Sesing and Simon. They travelled in the vehicle that was borrowed by Mr Tleane. They waited at the school premises for Mr Songo to arrive. It was decided beforehand that Sesing would use a .38 long nose revolver, which was in Applicant's possession, to shoot Mr Songo with. When the time came, Sesing was unable to gather the courage to shoot Mr Songo. Applicant then took the revolver from him and fired two shots at Mr Songo. Although he was wounded in the attack, Mr Songo survived the ordeal. After the incident, Applicant returned the vehicle to Mr Tleane and reported back to him about the attack on Mr Songo.
Applicant was never arrested for any of the above incidents. At a later stage while Applicant was serving a sentence in respect of an unrelated conviction, he was visited in prison by Radebe who indicated that the incidents concerning Reverend Namane and Mr Songo would be referred to the Truth and Reconciliation Commission. After some lapse of time and when it appeared that no progress was being made in reporting the matters to the Truth and Reconciliation Commission, Applicant contacted the Ministry of Safety and Security and raised the matters with them. At a subsequent stage, Applicant was approached in prison by members of the police which resulted in Applicant making a confession to a Magistrate in regard to the incidents. He was subsequently convicted on charges arising from the incidents.
The above version of events appeared from the testimony of the Applicant, as corroborated by Alfred Sesing insofar as the attack upon Mr Songo is concerned. This version is, however, contradicted in the testimony of Radebe, Thwala and Tleane.
Radebe vehemently denied that he gave any instructions to Applicant to eliminate Reverend Namane. He indicated that he in fact never heard of Reverend Namane prior to his killing. He disputed having met Applicant through the latter's brother-in-law, George Bila. He instead indicated that he met Applicant as a meeting of MK members in Tembisa who had come to register at the local ANC offices. He indicated that they all congregated in a conference hall and each person present got an opportunity to introduce himself to the meeting. This was the only occasion on which he met Applicant, when the latter introduced himself at the meeting. He furthermore denied having furnished any firearms to Applicant or having arranged for Applicant to go into hiding in KwaNdebele.
Thwala likewise denied that he gave any orders to the Applicant to kill Reverend Namane. Thwala indicated that he was a member of MK in exile and returned to Tembisa in 1992. He joined the executive of the local ANC branch and became a member of the local MK structure. He confirmed that Applicant was one of the MK members who returned to Tembisa from exile. Thwala indicated that there were tensions between pro-ANC civic groups in the community and some property developers, including Reverend Namane, on the other hand. He denied that the ANC was ever involved in these tensions. Reverend Namane was also a member of the Tembisa Civic Association which was opposed to the pro-ANC Tembisa Residents Association. He could not think of any reason why Applicant would implicate him falsely in the murder of Reverend Namane, save that Applicant could be trying to politicise the matter in order to qualify for amnesty. He also indicated that he was forced to reprimand the Applicant for indiscipline after various complaints were lodged with the ANC office concerning the conduct of Applicant. Thwala indicated that he first met the Applicant at the ANC offices in Tembisa and only later became aware of the fact that he was related to George Bila who was a fellow activist in Tembisa. He denied that Applicant was introduced to him by George Bila as part of a process to reintegrate Applicant into the local ANC structures. Thwala indicated that he is not acquainted with the persons who had apparently put Applicant up in KwaNdebele and he denied that he was involved in any arrangements for Applicant to go into hiding in KwaNdebele.
Tleane testified that at the time of the incidents during 1992 he was the president of the Tembisa Residents Association ("TRA"). Reverend Namane was known to him as a member of the Tembisa Civic Association ("TCA") which was a less influential structure at the time affiliated to the Pan Africanist Congress ("PAC"). Although the TCA was not a threat as such to the TRA, they were regarded as political opponents and there had always been a measure of tension between the two organisations. He indicated that neither Reverend Namane nor Mr Songo were either a threat to him personally or to his organisation. They were simply regarded as reactionary elements. Mr Songo was part of the old councillor system and he had formed an organisation of home seekers which became active in Ivory Park in Midrand. Due to Mr Songo's links to the old apartheid structures, he was regarded as a political opponent of the liberation movements. Tleane first noticed the Applicant sometime during 1992 when the latter was pointed out to him in the vicinity of the Tembe Shopping Centre in Tembisa as one of the people who had recently returned from exile. A while later Tleane was introduced to the Applicant by the latter's brother-in-law, George Bila, who was an executive committee member of the TRA. He then saw Applicant from time to time at the Tembe Shopping Centre where the TRA held offices. Tleane never formed any friendship with the Applicant and was much closer to George Bila. Tleane vehemently denied that he ever gave any instructions to Applicant to assassinate Mr Songo. He indicated that he had no personal animosity towards Mr Songo who was one of his classmates at school. Approximately two weeks after he met Applicant, the latter approached him at the office looking for transport to take his mother to Standerton. Applicant indicated that both George Bila's vehicles were in use and he was unable to get transport from anywhere else. Tleane decided to come to the Applicant's assistance. He approached Mr Julius Mathlo, the chairperson of one of the local TRA branches, and borrowed the latter's car under false pretences. He indicated that he did so because Applicant was related to his close friend, George Bila and because the ANC leadership had earlier made a call on members of the community to give assistance to those who had returned from exile. Under cross-examination he indicated that he was charged together with the Applicant in respect of the Namane and Songo incidents. He conceded that the TRA had arranged to finance the legal defence of the Applicant at the trial and the he was a member of a delegation from the TRA who visited Applicant in prison. He also indicated that he is acquainted with the person who hosted Applicant in KwaNdebele, although he was unaware at the time where that person was living. He conceded that at a meeting of local civic organisations held sometime prior to the attack upon Mr Songo, the latter accused him of having hired a hitman to kill Mr Songo. Subsequent attempts at resolving the problems between himself and Mr Songo, proved fruitless. Tleane also confirmed having been acquainted with Ashley Sesing. He, however strenuously denied having had any direct contact with Sesing whom he regarded as a member of the youth. Tleane insisted that there was a political conspiracy against him to falsely implicate him in the Namane and Songo incidents.
In assessing the merits of the application, we will commence by considering the attack upon Mr Songo. Applicant's version in this regard is corroborated by the testimony of Sesing. The latter has made a fairly favourable impression upon us as a witness. Although the Applicant has struck us as a temperamental person given to emotional outbursts, this trait does not significantly detract from the overall quality of his evidence which generally accords with the probabilities of the matter. We have not been similarly impressed by the testimony of Tleane. His version regarding the loan of the vehicle of Mr Mathlo is so improbable that we have no hesitation in rejecting it in favour of the version of Applicant and Sesing. If the reason for acquiring the vehicle was an innocuous one, there was no reason for Tleane to mislead Mr Mathlo in regard to the use of the vehicle. It is, moreover, inherently improbable that he would have gone to the lengths indicated in his testimony to assist the Applicant, whom he had only met about two weeks earlier, to obtain transport in what appears to not have been an emergency situation. It is not in dispute that Mr Songo was regarded as a political opponent to the pro-liberation movement forces in Tembisa. It is therefore, highly probable that he would have been a target for attack by the latter forces. Tleane held a position of leadership in this grouping at the relevant time. Applicant, on the other hand, had no personal reason to attack Mr Songo, who was a former teacher with whom he never had any problems. Applicant, in fact, found it extremely difficult to execute the order to attack Mr Songo and only resolved to do so after some serious soul searching.
Insofar as the Namane incident is concerned, we are satisfied that the probabilities support the version of the Applicant as opposed to that of Radebe and Thwala. The victim was completely unknown to the Applicant who had no reason whatsoever to kill Reverend Namane. He instituted the process that culminated in the disclosures concerning the killing of Reverend Namane and the confessions deposed to by him. There were no pending legal proceedings against Applicant at the time when he raised the incident firstly with officials from the offices of the Ministry of Safety and Security and subsequently with members of the police. There is no compelling reason why Applicant would have implicated himself by making a full disclosure of his own role in the murder, just to fabricate a version to falsely implicate Radebe and Thwala in the incident. It is common cause that Radebe and Thwala were in positions of leadership within the structures of the ANC and MK in Tembisa to which Applicant also belonged. They were therefore in a position to give orders to the Applicant in his capacity as a member of the ANC and MK. The leadership positions occupied by Radebe and Thwala would, moreover, have enabled them to make the necessary arrangements for Applicant to go into hiding with ANC/MK structures in KwaNdebele. Applicant was not acquainted with either the area or the members of the relevant organisations that were responsible for hosting him in KwaNdebele.
In all the circumstances, and having carefully considered the matter, we are satisfied that the version of Applicant in regard to both the Namane and Songo incidents can be accepted as the truth. Applicant has accordingly made a full disclosure of all relevant facts. We are, moreover, satisfied that both incidents arose from the political conflict in Tembisa at the time and therefore constitute acts associated with a political objective as envisaged in the Act. We are also satisfied that the application complies with all of the requirements of the Act and amnesty is accordingly hereby GRANTED to the Applicant in respect of the following offences:
1. The killing of Reverend Namane at or near Tembisa, Kempton Park on or about 25 June 1992;
2. The attempted murder of Samuel Mandla Songo at or near Tembisa, Kempton Park on or about 26 August 1992;
3. Unlawful possession of firearms, including a Stechkin pistol, an AK-47 assault rifle and a .38 revolver, and ammunition at or near the places and on or about the times referred to in paragraphs 1 and 2 above.
In our opinion the next-of-kin of Reverend Namane as well as Samuel Mandla Songo are victims in respect of the offences for which amnesty is hereby granted, and are accordingly referred for consideration in terms of Section 22 of the Act.
DATED AT CAPE TOWN THIS DAY OF 2001.
JUDGE DENZIL POTGIETER
MR I LAX
MR J B SIBANYONI
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