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") by MZIWOXOLO STOKWE, a 32 year old male, presently a Captain in the South African Police Services and a member of the VIP Protection Unit responsible for protection of the President.
Applicant testified in support of this application and the victims and interested parties participated in the proceedings being represented by Mr Ntonga. All of these parties have indicated that they do not oppose the application and in fact requested the Committee, if possible, to grant the application. They accepted that what has happened resulted from the political circumstances which prevailed at the time of the incidents and as difficult as it was to deal with their loss, they accept that all of the suffering and sacrifices contributed to the peace the country enjoys today. The evidence of the daughters of one of the victims is dealt with below.
In view of the particular circumstances of the case we feel constrained to give our decision in this matter immediately.
The factual background is briefly as follows. Applicant joined the Congress of South African Students ("Cosas") while schooling in Uitenhage, Eastern Cape in 1984. There was then already a prevailing situation of political unrest in the Eastern Cape and the police followed a strategy of recruiting informers from smaller outlying areas, like Jansenville, for their purposes. Cosas decided to deploy some of its members to these outlying areas to counter this trend.
Applicant was born in Jansenville and it was decided that he should return there and implement the Cosas policy by establishing a presence in that area.
Applicant attempted to enrol at the school in Jansenville but was initially refused by the then principal, also one of the victims, Mr Takayi. Through concerted pressure brought to bear on the principal, Applicant and other students from Uitenhage enrolled at the school. They launched a local Cosas branch and Applicant was elected its Chair. A situation of unrest and confrontation with the police resulted in Jansenville.
During the course of this conflict it became known that Mr Skune Tembisile Maarman was a police informer. Various actions on his part confirmed this fact. At a Cosas meeting chaired by Applicant a decision was taken to kill Mr Maarman. This was in line with the call at the time by the anti-apartheid political forces, led by the ANC, to render the country ungovernable and to remove any obstacles to the liberation struggle. This decision was implemented on 6 April 1985 when Mr Maarman was abducted from a discotech and killed by a group of approximately 200 persons, including Applicant.
A number of persons were arrested and charged with this incident. Applicant was accused no. 1. They were all released on bail. At one stage after they had reported to the police station in accordance with their bail conditions, they were attacked by the police and special constables. The youth responded to this attack by burning down the houses of Mrs Elizabeth Jeyi and Mr Suka and destroying the property of Mr Mkundla Elliot Takayi, the school principal.
The same night of this incident Mrs Ntiki Febana, who according to information, worked for the police and decided to turn a State witness against the accused even though she participated in the killing of Mr Maarman, was brought home by the police to collect her belongings from the township. The youths approached the house and the police fled leaving Mrs Febana behind. The latter was killed by the crowd. The Applicant participated in this incident. This decision was taken on the spur of the moment and because the opportunity presented itself to act against Mrs Febana.
After these incidents, Applicant fled the country and received military training under the auspices of Umkhoto we Sizwe ("MK") the military wing of the African National Congress. He subsequently returned to the country and was deployed on MK business and activities.
He has decided to apply for amnesty without being pressurised by anyone and basically in order to make a full disclosure of these incidents so that the community of Jansenville and the interested parties may be fully appraised of the facts.
After the conclusion of argument in the matter, the daughter of the late Mrs Febana, Bongisa Febana, indicated that she wanted to draw certain aspects concerning the evidence of Applicant to the attention of the panel. The effect of her evidence was that she and her sister are the only children of her late mother. They were born in 1978 and 1983 respectively. Their father is still alive, but they have no contact with him. After the death of her mother, they have grown up with their grandmother who maintains them from a State grant. She is a first year marketing student at the Peninsula Technikon and her sister in Std. 7 at Hottentots Holland High in Somerset West. Their progress at school is normal.
She disputed that her mother was to be a State witness against the Applicant and others or that she was working with the police. She also expressed the view that the killing of her mother was planned and did not happen on the spur of the moment, because a friend of her mother was telephoned and informed that her mother would be killed.
It is clear that the incident has been a particularly traumatic one for Ms Febana to lose her mother under such tragic circumstances at a time when she was still very young. She still experiences difficulty to recount the circumstances.
Pursuant to the repeated requests by Ms Febana that Applicant should tell the truth, Applicant asked for an opportunity to respond. This was granted. He repeated that he acted voluntarily in applying for amnesty and has no reason not to tell the truth.
In our view there is no real dispute of fact or contradiction of the version of Applicant. The perspective expressed by Ms Febana is perfectly understandable under the circumstances.
Having carefully considered all of the circumstances of the matter, the evidence as well as the arguments, we are satisfied that the Applicant has made a full disclosure of all relevant facts and that the incidents applied for constitute acts associated with a political objective as set out in the Act.
We are accordingly satisfied that the application complies with all of the requirements of the Act. Applicant is GRANTED amnesty for:
1. The murder of Skune Tembisile Maarman on or about 6 April 1985 at or near Jansenville;
2. The murder of Ntiki Febana on or about 14 December 1985 at or near Jansenville;
3. The following offences committed during 1985:
3.1 arson in respect of the house of Mrs Elizabeth Jeyi of Jansenville;
3.2 arson in respect of the house of Mr Suka of Port Elizabeth;
3.3 malicious damage to the property of Mr Nkundla Elliot Takayi of Port Elizabeth.
In our opinion the said victims in respect of arson and malicious damage to property and the next-of-kin of the said Mr Skune Tembisile Maarman and Mrs Ntiki Febana are victims in respect of the incidents and they are referred for consideration in terms of the provisions of Section 22 of the Act.
In conclusion we wish to record that it is encouraging to note the reconciliatory attitude of the victims in this matter and the positive attitude they expressed in respect of their sad loss. It is this kind of situation that creates real hope for the realization of the overall objectives of the Truth and Reconciliation Commission, namely national unity and reconciliation. We hope that the situation of peace and normality which has returned to the community of Jansenville will eventually result in their experiencing the real benefits of our new democracy.
DATED at CAPE TOWN on this
: day of JULY 1999.
: JUDGE DENZIL POTGIETER
: DR. W. TSOTSI
: Adv. N. SANDI
PANEL: Judge Denzil Potgieter; Dr. W. Tsotsi; Adv. N. Sandi
EVIDENCE LEADER: Ms T. Thabethe
VENUE & DATE: 27 July 1999
PORT ELIZABETH
ATTORNEY FOR APPLICANT: Mr Nyoka
MPUMELELO NYOKA
1st Floor, Pakama Building
Cnr. Mabija & Marwanqa
Streets
New Brighton
PORT ELIZABETH
Tel. (041) 454-2296
Fax: (041) 454-2828
ATTORNEY FOR VICTIMS: Mr. B.B. NTONGA
B.B. NTONGA & CO.
Rooms 11 & 12, M & K Centre
MDANTSANE
Tel.: (0403) 612162
Fax : (0403) 612100
