DECISION
This application is related to that of Conrad Nkuna (no 0826/96) and also to that of Derrick Skosana (no 3378/96) in that all three are mainly in respect of the same incident, namely the attack on the house of one Johannes Mandla Shabangu.
The applicant was arraigned and convicted on the following charges:
Count 1: attempt to murder to Johannes Mandla Shabangu;
Count 2: attempt to murder Noelane Lingwate;
Count 3: attempt to murder Peer Mnisi;
Count 4: attempt to murder Thadi Mokoena;
Count 5: attempt to murder Lazarus Chiwayo;
Count 6: attempt to murder Phindive Shlangu.
(All the above offences were committed on the night of 10 to 11 November 1992 at Kanyamazane)
Count 7: the illegal possession of two F1 hand grenades of Russian origin;
Count 8: the illegal possession of one AK47 gun with two magazines;
Count 9: the illegal possession of 148 x 7.62mm rounds of ammunition for a machine gun;
Count 10: the illegal possession of one F1 hand grenade;
Count 11: the illegal possession of 20 x 7.62 rounds of ammunition for an AK47;
Count 12: the illegal possession of 1 x 7.62 round of ammunition
(All the above offences were committed during or about November/December 1992 at or near Kayamazane).
The applicant was convicted and sentenced as follows:
to six (6) years' imprisonment in respect of counts 1 to 6, which, for the purposes of sentence, were treated as one;
- five (5) years' imprisonment in respect of count 7;
- five (5) years' imprisonment in respect of counts 8 and 9, which, for the purposes of sentence were taken together.
The sentences on count 7 and counts 8 and 9 were to run concurrently. It was further ordered that two years of the latter sentence should run concurrently with the sentences on counts 1 to 6. The result was that he was effectively sentenced to nine (9) years' imprisonment.
The applicant applies for amnesty for the above mentioned offences. At the time of the commission of the offences the applicant was almost 27 years of age. The applicant was born on the 25th of November 1965. After he matriculated he went to Fort Hare in 1985 but was expelled during 1986 because of his involvement in political activities. He was an active member of the African National Congress (ANC) and Congress of South African Students (COSAS). During 1987 he was elected to the National Executive Committee of South African Youth Congress (SAYCO).
In 1987 he attended a meeting of the Executive of SAYCO with amongst others the late Chris Hani, Joe Modise and Joel Netshitenze at Harare and was instructed to put up Umkhonto weSizwe (MK) structures in the then Eastern Transvaal. During September 1987 he was sent to Angola for military training in Intelligence and he returned the same year. He was detained during December 1987 and after his release was ordered by the late Chris Hani to link the structures in the Eastern Transvaal with those of the MK.
In so doing he, according to his evidence, worked with the Maputo command which was under Matthews Phosa. He worked in close cooperation with Chris Hani, who sent well trained MK soldiers Mxolisi and Ronald to help him with internal training of MK soldiers and the building of structures to intensify the struggle. MK soldiers under applicant's command carried out a number of operations. He established safe houses and arranged transport for MK soldiers. He visited London and the USA to raise money for the United Democratic Front (UDF) and SAYCO.
During 1989 he lead attacks on the Black Cat gang and other gangs in the Eastern Transvaal. After SAYCO was dissolved, he was elected to the National Executive of the ANC Youth League in 1990. After the unbanning of the ANC in 1990, he was elected as its general secretary in the Eastern Transvaal. He represented the Eastern Transvaal region in negotiations that led to the Grootte Schuur minutes.
According to the applicant, he received information that the police were, in collaboration with some elements within the ANC, planning to attack him. He reported this to Walter Sisulu and Hani. The two warned him to be vigilant.
On 3 october 1991 an attack on his life was indeed carried out. He was severely assaulted and left for dead. He was in a coma for seven days and suffered for months thereafter, he was partially paralysed.
He further testified,
"I believe that the attack on me had been carried out by members of the ANC who were working as agents of the Security Forces. This belief was common to many around me including me, my family, other ANC officials and many comrades loyal to me. My belief that the police agents who were within the party were responsible, was reinforced by what seemed to me at the time to be improbably coincidence, namely that shortly before the assault on me, I was ordered to surrender my personal firearm, a Macaroff pistol, leaving me helpless at the hands of my assailants."
During October 1992 MK cadres Solomon Moroape and Derrick Skosana turned up at the applicant's house. According to him they brought their own weapons and were sent to carry out attacks on enemy agents. In this connection they mentioned the name of Johannes Shabangu as being one of them. As a result of this an attack on the house of Shabangu, at the time a known and respected member of the ANC, was planned and carried out. Shabangu and the other victims were sleeping in the house when the attack occurred, which took place during the night of the 10th to the 11th November 1992.
Derrick Skosana and the applicant's younger brother, Conrad Nkuna, actually took part in the attack on Shabangu's house. As already indicated they have also applied for amnesty in respect thereof under applications number 3387/96 and 0826/96 respectively and both of them have testified in support of their own applications. Reference to their testimony will be made herein only to the extent that it is necessary.
Derrick Skosana's version of what happened on their arrival of the applicant in Nelspruit differs substantially from that of the applicant. While Skosana admits coming to Nelspruit, he denies mentioning Shabangu's name or that he and Moroape were on a mission from the ANC Headquarters to come and attack enemy agents. He did not know that Shabangu was suspected of being an agent until told by the applicant, and says that he took part in the attack only on the strength of an order from the applicant whom he held in high regard as a Regional leader and MK Commander.
As Shabangu was a prominent and active member of the ANC the question was raised before us, whether the attack on him wasn't out of revenge as he had, some time prior to the attack, implicated the applicant in an investigation concerning misappropriation of ANC funds. This was vehemently denied by the applicant. To draw such a conclusion on the evidence before the Committee would be mere speculation. It is a fact that the applicant was assaulted as he testified. His evidence is that he and a number of colleagues firmly believed that the attack had been launched at least in collaboration with his other colleagues within the ANC who had become police agents. The reasons for this belief are contained in the portion of his evidence quoted above.
It is generally accepted that the ANC did have a policy of dealing severely with police agents and informers. The question is whether the applicant, in ordering the attack on Shabangu, was acting under specific instructions or with the approval of the organisation. He says in his application that the "order was planned in SACP Head Office in Johannesburg in a meeting with cadre Chris Hani and he ordered it."
The applicant was at first rather vague and tried to avoid questions as to whether Chris Hani ordered or approved the attack on Shabangu specifically. It is accepted that there was a general instruction to eliminate agents of the enemy. It is obvious that in order to do so, agents had to be first identified.
The applicant testified as follows:
Question: "Could I summarise it, do I understand you correctly, that he (Mr Hani) said as a general order, to eliminate agents?"
Answer: "Yes."
Question: "As a specific order he told you eliminate Mr Shabangu?"
Answer: "Yes."
Question: "Sorry we must make sure that we are on the same wave length here. So are you saying that the name of Mr Shabangu was actually mentioned in the discussion with the late Mr Hani?"
Answer: "Yes."
Question: "That Mr Shabangu should in fact be eliminated?"
Answer: "Yes."
Question: "In your presence?"
Answer: "In my presence."
The above statements can neither be corroborated nor disapproved since Hani is no longer alive. Although the applicant's evidence in this regard was not satisfactory in all respect, it cannot be rejected as untrue. After all Mr Hani's decision would have been influenced by the information supplied to him by the people in the Eastern Transvaal region and in particular by the applicant himself, at the time an MK leader in that region. Moreover, as Moroape had also since died, it is difficult to contradict the applicant's version that Moroape brought those instructions from the ANC Headquarters. Skosana himself has told us the applicant and Moroape had previously been in contact. There is a suspicion that the applicant could have acted on his own, as far as this specific incident is concerned, but the Committee cannot decide the matter on the basis of a suspicion.
Reference must also be made to the contradiction between Skosana on the one hand,and the Nkuna's on the other hand, on whether or not the applicant was physically present during the attack. The applicant and his brother, Conrad, say the applicant was not present, whereas Skosana says he was. It transpired from Skosana's evidence later though, that the applicant was some distance from the scene. Even on his own version therefore, Skosana does not exactly place the applicant at the scene. However, that the applicant was the mastermind behind the attack, is agreed amongst all of them, on this basis, he was party to the attack.
The applicant conceded that his belief at the time that Shabangu was an agent of the police was based on a false perception created by the police themselves in order to cause division within the ranks of the ANC. At the time of the attack though, he bona fide believed that he acted in the furtherance of the political struggle of the ANC.
For all the reasons stated above, it is our finding that the attack on Shabangu's house is an act associated with a political objective. The illegal possession at various times of all the firearms, ammunition and hand grenades, is also an act associated with a political objective, they were possessed not for any purpose other than the pursuit of a political objective.
Accordingly the applicant is hereby
GRANTED AMNESTY: in respect of all the offences set out on page 1 to 2 hereof.
SIGNED ON THE 5th DAY OF NOVEMBER 1997.
NGOEPE, J
ADV C. DE JAGER, SC
MS S. KHAMPEPE
