decisions AMNESTY DECISIONS EMMANUEL NKOSINATHI MAVUSO AM 7921/97 GRANTED/REFUSED https://sabctrc.saha.org.za/hearing.php?id=59193&t=&tab=hearings https://sabctrc.saha.org.za/originals/decisions/2000/ac200212.htm DECISION ______________________________________________________ The Applicant applies for amnesty for the murder of Michael Mcetywa ("the deceased") on 22 November 1993 at Pongola, KwaZulu-Natal. He also applies for amnesty in respect of the attempted murder of an innocent bystander who was shot and wounded in the incident as well as the unlawful possession of arms and ammunition. Applicant was convicted and sentenced to long term imprisonment pursuant to the incident. The application is opposed by the next-of-kin of the deceased. The Applicant and a number of other witnesses testified at the hearing which ran for a considerable period of time. There were wide-ranging disputes of fact in the various versions presented to us. Little purpose would be served by giving a detailed exposition of all the issues in contention, most of which have been dealt with in helpful written argument submitted on behalf of Applicant and the next-of-kin of the deceased and by the leader of evidence. The following summary of the salient points of the evidence will suffice for the purposes of this decision. A number of persons implicated by Applicant, including Amos and Philemon, testified at the hearing contradicting the version of Applicant. They basically denied having been involved in a conspiracy to kill the deceased or to have given orders to Applicant to kill the deceased. Suffice it to say that none of these witnesses nor the Applicant has made an exceptionally favourable impression on us. There are valid points of criticism that can be raised in regard to all these versions, most of which are dealt with in the written argument. No useful purpose would be served by repeating these submissions, save to point out that it is common cause in the written argument that the evidence as a whole established the complicity of all the implicated parties in the planning and execution of the assassination of the deceased. We merely point out that we are in agreement with this submission. There are further facts established in the evidence that are important to deciding the application, which need now to be dealt with. According to the acceptable evidence there was no political conflict of any note in the Pongola area between the ANC and IFP prior to the murder. There was, however, considerable conflict between the community and taxi operators to effect large increases in fares. The ANC was seen to be leading the resistance. The deceased and the two other victims identified for assassination were perceived to be actively involved in this regard. A majority of the persons involved in the conspiracy to kill the deceased were also involved in the taxi industry. Their involvement in the IFP, however, was peripheral at best. One of them was a member of the Pan Africanist Congress, a liberation movement on the same side of the South African political spectrum as the ANC. Although Amos could be described as having enjoyed a relatively high profile within the IFP, he was clearly also associated with the taxi operators in that he publicly supported their cause during the conflict. Having regard to the totality of the evidence and the factors referred to, we are satisfied that the assassination was not in fact related to any political conflict in the area. In all probability the attack was linked to the taxi conflict, although it is not necessary for us to finally decide this issue in view of the decision to which we have come on the matter. The issue which does arise for consideration, however, is the effect of the evidence of Applicant that this is what the group of conspirators told him and that to his mind he was executing an order from the IFP to assassinate a political enemy. It needs to be pointed out in this regard that one of the requirements to be complied with by an amnesty applicant is that the offence in question should constitute an act associated with a political objective as envisaged in sections 20{2) and (3) of the Act. The provisions of these two subsections have to be considered separately. (f) any person referred to in paragraphs (a), (b, (c) and (d), who on reasonable grounds believed that he or she was acting in the course and scope of his or her duties and within the scope of his or her express or implied authority;" (emphasis supplied) For present purposes, the only relevant category of person is that referred to in paragraph (a) of section 20(2), namely "any member or supporter of a publicly known political organisation". The Applicant would fall into this category only for the purposes of section 20(2)(f). The section requires further that such a person should believe that "he or she was acting in the course and scope of his or her duties and within the scope of his or her express or implied authority". It is clear that section 20(2)(f) only caters for a strictly circumscribed category of people, more particularly those persons under a particular duty and who enjoy specific authority in the relevant organisation. The application also needs to be evaluated against the criteria set out in section 20(3). This requirement is distinct from and additional to the locus standi requirement set out in section 20(2). Section 20(3) sets out the factors to be taken into account and the criteria to be applied in order to decide whether the offence in question constitutes an act associated with a political objective. In terms of section 20(4) the Committee should take into account, in this regard, the criteria applied in the repealed indemnity legislation. We are mindful of all these requirements but will only deal with those criteria that are directly relevant to and, in our view, determinant of this application. In the circumstances and having regard to the criteria set out in section 20(3) and referred to in section 20(4), we are not satisfied that the murder constitutes an act associated with a political objective, as envisaged in the Act. By the same token, neither the attempted murder nor the unlawful possession of arms and ammunition qualifies for amnesty. In the result the application is REFUSED. DATED at CAPE TOWN this 22 day of November 2000. ________________________ DENZIL POTGIETER A J ________________________C DE JAGER A J ________________________ ADV L GCABASHE