decisions AMNESTY DECISIONS THEMBA MSHINI NGCOBO,PHAZIMANI NCISHANE AC/99/0237 AM 7803/97,AM 5638/97 GRANTED https://sabctrc.saha.org.za/hearing.php?id=58915&t=&tab=hearings https://sabctrc.saha.org.za/originals/decisions/1999/ac990237.htm DECISION ______________________________________________________ The applicants apply for amnesty in terms of Section 18 of the Act in respect of the following offences:- 1. Killing of Samson Mvundla; 2. Killing of Mzikayifani Amos Cele; 3. Attempted murder of Mandla Zondi; 4. Robbery of Mvundla's wristwatch and his wallet containing R30,00 and 5. Robbery of Cele's wristwatch; committed on the 20 July 1991 at or near Malukazi in the district of Durban. The first applicants testified that in 1990 Malukazi was engulfed by political violence arising from the political conflict between the ANC and the IFP in their quest for political turf over Malukazi. The first applicants averred that sometime in 1991 but shortly before the commission of the offences for which he seeks amnesty, the ANC section to which he resided was allegedly continuously attacked by members of the IFP. He was also the object of such an attack but had managed to escape without any injuries. The last straw that broke the camel's back was an attack by the IFP on one particular night prior to the 20th July 1991 launched against an ANC section in which he resided. After this incident the first applicant as a commander of the ANC in that area decided to launch indiscriminate retaliatory attacks against the IFP members in the area. To this extent he instructed the second applicant and one Myboy Mavuso to accompany him with a view to achieve this purpose. The first applicant was familiar with the two houses used by the IFP in that area for their camping and intended to attack these houses as well as any person perceived to be a member of the IFP in that vicinity. On their way to accomplish their objective they came across Mvundla who was known to the second applicant as an IFP Inyanga, being accompanied by his wife. They followed Mvundla to a house and once he was inside the house, only the first applicant went into the house. Once inside the house he questioned him about two alleged prominent leaders of the IFP, Mahomba and Henry. Mvundla advised him that they were at an alleged IFP camp. The first applicant ordered Mvundla to take him to them. When Mvundla came outside, and upon laying his eyes on the second applicant and Myboy he attempted to run away but was shot at by Myboy as well as the first applicant. The reasons advanced by the applicants for having shot Mvundla were that had he managed to flee he would have been able to alert other IFP members of their presence in the area and that in any event their intention was to kill perceived IFP supporters in that section which was known to be a stronghold of IFP members. After shooting Mvundla the first applicant took his wristwatch and his wallet containing R30. When the first applicant was questioned as why he took Mvundla's wristwatch and wallet, he contended that it was common practice to repossess their enemies of items of value and sell them for cash in order to buy weaponry. He averred that he sold the wristwatch for R20 at a hostel and that the proceeds derived therefrom this robbery were used to buy ammunition from the nearby hostel. After shooting Mvundla the applicants thereafter left the scene to pursue their aforesaid objective. Along the way they came across alleged IFP members Mandla Zondi and Amos Cele. When Mandla Zondi saw the applicants approaching he ran away. Amos Cele also attempted to run away but was shot at by the applicants and Mavuso. The first applicant shot at Mr Cele but Mr Zondi managed to escape. Immediately after this shooting the applicants were pursued by Indians who were apparently in the vicinity. They therefore ran away and were unable to get to the IFP camp as intended. The second applicant testified that he was instructed by the first applicant to accompany him to seek out the IFP members in order to kill them in retaliation for the earlier attacks launched against their section by the IFP. He contended that he was acting under the instructions of the first applicant when this incident occurred and knew the first applicant to have been a duly elected leader of the ANC in his area whose primary function was to protect ANC members in that area. To this extent his participation in the commission of these offences was in the execution of an order by a person he knew to have been authorised by the ANC community in his area to command operations such as the ones in which he participated and for which he seeks amnesty. He evinced that insofar as the robbery was concerned he had not personally participated in that act nor did he have prior knowledge that it would be committed but had seen the first applicant removing the wristwatch and a wallet from both deceased and associated himself with those acts. Having regard to the evidence before us with regard to the killing of Mr Mvundla and Mr Cele, we are satisfied that the second applicant participated in the acts for which he seeks amnesty in the execution of an order given by his commander, the first applicant. The first applicant was a commander of the ANC Unit in his section and committed the offences for which he seeks amnesty in his capacity as such. The deceased were killed by the applicants because they were perceived to be IFP members. It was the stated objective of the first applicant to kill IFP members that day in retaliation for the alleged attacks committed against members of his organisation allegedly by the IFP members. There is no evidence to the contrary that there were no political conflicts between the IFP and the ANC in the area nor that the applicant was not a commander of the ANC in that area. In the absence of anything to the contrary, we have to accept the version given by the applicants in this regard. Amnesty is therefore GRANTED to the first applicant for killing Mr Mvundla and Mr Cele. Insofar as the robbery is concerned, it is probable that the applicant was authorised by his organisation in his capacity as a commander to rob IFP members whom they had attacked of firearms and whatever possessions that could be converted into cash in order to fund his command for weaponry and ammunition which was in great demand and was an important ingredient to the attainment of political control in the area. In a situation such as this one there is always room for a commander to abuse his authority and rob his opponents for his personal gain. However there is no evidence that he derived any personal gain and in the absence thereof we have to accept the only version before us as given by the first applicant that the proceeds derived therefrom were utilised to purchase ammunition for use by his command. Amnesty is therefore GRANTED to the first applicant for the killing of Mr Mvundla and Mr Cele as well as the two acts of robbery. 1. THEMBA MSHINI NGCOBO Amnesty is GRANTED for the following offences:- 1. Killing of Samson Mvundla 2. Killing of Mzikzyifzni Amos Cele 3. Attempted murder of Mandla Zondi 4. Robbery of Mvundla's wristwatch and his wallet containing R30,00; and 5. Robbery of Cele's wristwatch Committed on 20 July 1991 at or near Malukazi in the district of Durban. 2. PHAZIMANI JOE MCISHANE Amnesty is GRANTED for the following offences:- 1. Killing of Samson Mavundla 2. Killing of Mzikayifani Amos Cele 3. Attempted murder of Mandla Zondi 4. Robbery of Mvundla's wristwatch and wallet containing a sum of R30, 00. 5. Robbery of Cele's wristwatch. Committed on 20 July 1991 at or near Malukazi in the District in Durban. The Committee is of the opinion that the relatives of the deceased Amos Cele and Samson Mavundla are victims as defined in the Act and recommended that they be referred to the Committee on Reparation and Rehabilitation for consideration in terms thereof. Signed on the ...................... day of ........................1999. ................................ JUDGE S. KHAMPEPE ..................................... ADV. C. de JAGER ....................................... MR. W. MALAN