DECISION
This is an application in terms of Section 18 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 ("the Act").
The Applicant Sibusiso Richard ("Sosha") Mbhele ("Mbhele") applies for amnesty in respect of his involvement in a large number of incidents that are set out in his affidavit at pages 9 to 31 of the main bundle of papers. The first incident commences at page 12. We will deal with the incidents sequentially:
1. The abduction and killing of a young boy from Tenza's kraal during 1993.
2. The abduction and killing of a young male from Nokweja area during 1993.
3. Killing of Muzi during mid 1993.
4. Killing of Mafuthalenja Dlamini during 1993.
5. Killing of the "three Transkei soldiers" during 1993.
6. Killing of Anton Sibongiseni Nzimande on 28 August 1993.
7. Ambush of Magubane at Pulangweni area, Ixopo during 1993.
8. The killing of Msimango during 1993.
9. The killing of the young boy from Emandungeni during 1993.
10. The killing of Dlangisa during 1993.
Mbhele and his counsel conceded that the additional incidents also mentioned in the affidavit either did not amount to acts, omissions or offences for which amnesty could be sought or were acts, omissions or offences committed without a political objective.
The Applicant testified that he was born on 1 November 1965, grew up in the Cabazi area of Ixopo and had a standard one eduction. He was trained at Springbok Patrols and Trident Security in the use of certain firearms. In 1992 he joined the Inkatha Freedom Party ("IFP") and thereafter went for training at the Amatikulu Training Camp in Zululand. After his training, he became a member of the Self Protection Unit ("SPU") at Emazabekweni Reserve, in the Highflats area under Chief Gcinindaba Dlamini. Mbhele said he committed all the acts listed above while he was apparently part of this SPU. He claimed that he acted under the command of Bheki Mkhize ("Mkhize"). Mkhize appeared and testified at the hearing of the matter. He denied being the leader of the SPU and said that Mbhele acted on his own initiative and was himself the leader of the SPU.
We now deal with each incident and the evidence relating thereto:
1. The abduction and killing of a young boy from Tenza's kraal during 1993:
The Applicant testified that the deceased was a person who was allegedly known to have been responsible for the deaths of seven IFP members at Hopewell a year prior to the incident. The deceased was also allegedly implicated in the death of a Chief Ndlovu. He said persons from the Hopewell area who he did not know, except by sight, had brought the deceased to him. Later his counsel drew his attention to his affidavit and in particular the portion wherein Mbhele says he ordered his members to fetch the deceased. Mbhele said that this youth had also been spying on his group's activities and was thus a danger to them. He said that when the youth was brought to him he made him sit on the edge of a donga and then shot him with a 9mm pistol. The youth's body fell into the donga. The youth's mother, a Mrs Tenza from a Mr Ntobontobo's house, apparently arrived some days later looking for him, but Mbhele said nothing about the boy's killing. In his affidavit, he says that he stopped his group attacking Mrs Tenza. He denied this in evidence. He was never charged for this incident.
Although Mbhele's counsel argued that he acted on instructions, it is clear from the papers before us and his testimony that he acted on his own initiative in this instance. As is evidence from some of the above contradictions between his application, his affidavits and his oral testimony before us, as well as the internal inconsistencies in each of these versions, and in view of the generally unsatisfactory nature of his evidence, we do not believe the Applicant has made full disclosure as required by the Act.
2. The abduction and killing of a young male from Nokweja area during 1993;
In this incident, Mbhele alleges receiving orders from Mkhize to go and abduct a young person alleged to be an ANC member. This person was alleged to live at a kraal near to that of the Chief and someone from his kraal had been camping with the SPU. The youth was thought to be spying on the camping activities. (The word camping in this context refers to the practice of calling all the young men in an area together for the purposes of defending the area from attacks by opposing group/s.) In his testimony, Mbhele said he thought he was going to abduct a prominent ANC member. When questioned about this he gave the answer that all ANC people were prominent. He said he hated all ANC people and that was why he shot the boy. He also gave two different versions of why he shot the boy. On the one hand, he said he received orders to shoot the boy and on the other, he said he did it on his own initiative. He was also confused as to where the shooting took place.
3. Killing of Muzi during mid 1993:
In this incident, Mbhele alleges receiving instructions to go and destroy everything they could find on the premises and "if they could find the head Muzi it would be better." Later in his testimony he said there were "certain problems" in his affidavit and he denied that they had gone to "destroy to place", He never explained how and why these "problems" appear in his affidavit. Muzi was apparently the child of one Sarah-Jane who ran a shebeen in the Ebonvini Reserve area under Chief Chiliza. Mbhele alleged that this person had been stopping schoolchildren from going to school and had forced them to join the ANC. He was also blocking the road with scrap vehicles.
Mbhele said that they went to the area and found the place early in the morning. He had gone from dwelling to dwelling knocking and received no reply. Eventually he heard music coming from a rondavel in the kraal. He kicked in the door and found a man, his wife and their child sleeping in the room. He asked the man if he was Muzi and when he said he was told him to come outside. The man tried to grab Mbhele and he shot him several times. He then left the room and fired again at the man through the window of the rondavel. Mbhele was the only member of the group who shot the man.
Later when they were leaving the area, they saw a vehicle driving along the road. Mbhele's members opened fire at it. When the vehicle stopped, they saw that a prison warder who convinced them he was not involved in politics drove it. Although one member of Mbhele's group wanted to shoot the man, Mbhele managed to deflect the rifle and the shot missed the man who was allowed to drive away.
Once again we have difficulty with the evidence of Mbhele and find it difficult to reconcile the evidence and the written application and affidavit. Mbhele plays the leading role and appears to use his initiative and is incompatible with the role of someone who is merely taking orders.
4. Killing of Mafuthalenja Dlamini ("Dlamini") during 1993:
This incident also happened in the Ebonvini Reserve area under Chief Chiliza. Mbhele testified that Dlamini was the uncle of and had been recruited to the ANC by the deceased Muzi in the previous incident. He said he was an ANC person and a police spy. Mbhele said he met him while on his way to Ebonvini and "felt this was the opportunity to kill him." This was in direct contradiction to his affidavit and his later evidence where he said he had instructions from Mkhize to do this. In argument, his counsel argued that he acted on instructions but it is clear from his testimony that he acted on his own initiative in this instance. The deceased appears to have been a well-known IFP supporter and his widow testified to this before us.
5. Killing of the "three Transkei soldiers" during 1993:
Mbhele testified that he had set up a roadblock on the Umzimkulu roads in order to apprehend certain persons suspected of having attacked and killed one Ngubane and shot at a Mr Khumalo and some other people. He stopped a number of vehicles and searched them sending one back. At one stage he stopped a Toyota Corolla Sprinter and decided that the occupants were the people he was looking for. He said that the vehicle had suspicious number plates with different sets of registration plates that did not match the licence disk. Mbhele testified that the occupants were Transkei soldiers. The occupants were taken on foot along the road to near the Chief's kraal. At a certain point they were made to lie on the ground and were shot execution style by Mbhele. The bodies of the deceased were later disposed of in a forest. Their vehicle was washed and then used by Mbhele to go to Ebonvini. The vehicle was later dumped and burnt to prevent the police finding fingerprints. Mbhele was eventually arrested and prosecuted for this incident. He was convicted and sentenced to life imprisonment.
There are numerous contradictions and inconsistencies along with same lines as previously referred to above. Without going into all the details of these, it is worth noting that there are differences between the forensic evidence and that of the Applicant with regard to the cause of death and the manner of the killing. It also seems clear that the deceased were assaulted prior to being killed, something denied by the Applicant. In addition, the one deceased was a cousin of the Applicant who was known to him and who could thus not have been mistaken by him for someone else, as he seemed to suggest. Here again he tries to imply that he acted on orders when it is clear that he played the leading role and took the initiative himself. We are thus once again of the view that the Applicant has not made a full disclosure.
6. Killing of Anton Sibongiseni Nzimande on 28 August 1993:
A person by the name of Nkosi Mbhele told Mbhele that two armed ANC members were at the home of one Twasa, a student sangoma. He then proceeded to the place together with, Nkosi Mbhele, his brother and two sons and a Mr Nxumalo who drove them. On arrival at the place, Nkosi Mbhele pointed out the particular dwelling. After some knocking by various people Mbhele identified himself and asked that the door be opened. This was done. They entered and Mbhele saw someone hiding under the bed. The people with him could not identify the person who was taken outside to the vehicle. A short while later Mbhele heard shouts indicating that the person was escaping and Mbhele shot him. On going closer, Mbhele noticed the person was still moving his legs so he shot him again. Mbhele was also convicted for this incident and is serving a jail sentence for it. After the incident, Mbhele apparently discovered that the incident had nothing to do with politics. He alleged he has been misled by Nkosi Mbhele to believe that they would find ANC members with AK47s. It appears that Nzimande was Nkosi Mbhele's opponent for the affections of Twasa. Once again, there are various contradictions and inconsistencies in Mbhele's evidence and he simply does not appear to have made a full disclosure.
7. Ambush of Mr Magubane at Pulangweni area, Ixopo during 1993:
In this incident Mbhele claims to have acted on the orders of one Mabeza Mkhize of Jolivet. It is not clear who was ambushed as Mbhele corrected the name to Mabubane. He said Mabeza Mkhize complained that he was always being attacked and wanted Mabubane killed. Mbhele and some of his members then set up an ambush and fired at this person's vehicle as it passed them. Although they appear to have hit the vehicle it continued on its way. No further detail was provided. In his affidavit Mbhele says they did this on their own initiative because they were always being attacked. It is clear once again that there are fundamental differences in the versions put up by Mbhele, leading us to the general conclusion that he is not making full disclosure. Furthermore, other than the bald assertion that the person attacked was an ANC leader, no other context or detail is provided.
8. The killing of Mr Msimango during 1993:
Someone who said that Mr Msimango wanted an ANC person from St Faiths to be killed because he was alleged to be recruiting ANC members in the area approached Mbhele. Mbhele then went to St Faiths with Msimango and others. When he got there he realised that the target was a friend of his "commander" Mkhize one Qwabe. They then returned to their area on the pretext that the target was not present. Mbhele informed Mkhize who was angry about this and ordered Mbhele and the others to kill Msimango. Later that evening Mbhele and his colleagues got Msimango to drive them back to St Faith's to attack Qwabe. On the way they stopped at a forest to collect a firearm and Msimango was shot by two of Mbhele's colleagues. They left the body there and returned to Mkhize to report what had happened. Mkhize allegedly wanted the deceased's private parts and he sent back the two people to collect them. The body of the deceased was later left in a forest. This incident does not appear to be a politically motivated killing. It appears to have been a revenge response to the request by Msimango that his business rival, Qwabe, a friend of Mbhele's alleged commander Mkhize, be killed. Accordingly it is not a matter for which amnesty can be granted.
9. The killing of the young boy from Emadungeni during 1993:
We do not intend to canvass the detail of this incident because it was conceded in argument by the Applicant's counsel, that this was not a politically motivated killing.
10. The killing of Dlangisa during 1993:
Mbhele and another person had information that although Mr Dlangisa appeared to be an IFP supporter, he was recruiting for the ANC and that he had been seen as part of a group of people who abducted and killed three boys in the area. Mbhele and this person then went and abducted Dlangisa and took him for interrogation to the Chief's kraal. Apparently Dlangisa became aggressive during the questioning and Mbhele wanted to kill him but was topped by Chamane the "co-ordinator" who was leading the interrogation. Mbhele then left the place and while he was eating nearby heard people shouting that Dlangisa had escaped. A crowd of people chased him and he was eventually caught, killed and his body set on fire. Mbhele took no part in this. Mbhele in his evidence denied that he was aware that Dlangisa would in all likelihood be killed. He said he thought the community would hand Dlangisa over to the police. In the light of Mbhele's general evidence and his attitude and approach to the police we find this assertion totally improbable.
This then was the evidence in respect of the various incidents.
Mbhele often referred to his co-perpetrators as his members or followers. He also often made reference to his gang. The trial court found him to be a person of action who was in control of the situations he found himself in. It is also clear that in many of the incidents Mbhele and his co-perpetrators acted on their own, but more pertinently his initiative. These aspects tend to indicate that Mbhele was the person who was in command rather than someone who waited on orders. This tends to be in direct contradiction with the evidence of Mbhele who constantly tried to show that he acted primarily on the orders of his "commander".
His evidence was highly unsatisfactory. We do not intend to canvass further problematic aspects, suffice it to say that he contradicted himself at almost every turn. Not only was his evidence at odds with his application and his affidavit but the internal inconsistencies in the versions tendered are also self-evident. His evidence regarding how he stood up to the police and made them apologise to him, on more than one occasion, is also highly improbable.
With regard to the role of Bheki Mkhize, we do not find it necessary to make a finding as to whether he was in fact the Applicant's commander as alleged by him.
In the result we are not satisfied that the Applicant has made a full disclosure of all relevant facts as required by the Act and as mentioned above he and his counsel conceded that a number of incidents did not involve acts, omissions or offences associated with a political objective. His application for amnesty is thus REFUSED.
In the light of the unsatisfactory nature of Mbhele's evidence we are not in a position to decide whether any of the incidents in respect of which he applied for amnesty are in fact gross violations of human rights as defined in the Act and accordingly we are unable to make any victim referrals.
SIGNED AT CAPE TOWN THIS 14TH DAY OF MAY 2001
JUDGE ABM WILSON
DR W TSOTSI
MR I LAX
??
1
__
/...
