DECISION
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The four Applicants have applied for the murder of one Benjamin Masinga which took place on 19 April 1986 in Atteridgeville near Pretoria. The Applicants have not yet been prosecuted for this offence pending the outcome of their amnesty applications.
The first Applicant submitted a comprehensive unsigned statement in which he laid out the circumstances of the murder and the other Applicants submitted unsigned statements confirming the contents of the 1st Applicant's statement.
The confirmed the correctness of these statements, under Oath. In his affidavit, 1st Applicant stated that in 1984 he was a student in Saulridge High School. He joined the Congress of South African Students (COSAS) and became a member of the Student Representative Council together with his co-applicants.
Since COSAS was an affiliate of the United Democratic Front (UDF), the Applicants were then introduced into the politics of ANC from the many meetings and conferences which they attended. They met with uMkhonto weSizwe cadres who taught and trained them. They were, however, not trained in the use of weapons. They were ordered to form an underground unit of the MK which was to operate in the Atteridgeville and Pretoria areas. Their main task was to popularise and execute the campaigns of the UDF/ANC to bring about the downfall of the apartheid regime.
The commander of this underground unit/cell, was the 1st Applicant. However, all the activities taken by the unit were agreed to by all present.
The Police, soldiers, Councillors, Council Police were all regarded by this unit and the ANC as enemies since their main duty was to suppress all political activities and also to arrest and disillusion political activists.
The unit knew Benjamin Masinga as a policeman who was stationed in town and was well known as "Rambo" as he harassed people in the township. He stated that there had been a previous attack on Rambo by other political activists but they only succeeded in taking his firearm as he managed to escape.
On 19 April 1986 Applicant's underground unit met at 1st Applicant's home in 35 Serote Street. They were busy preparing petrol bombs as they were planning to attack the house of another policeman.
Whilst preparing the petrol bombs and planning the attack, a certain lady (later known as Linkie) came to 1st Applicant's home. She called 1st Applicant outside and told that Rambo was at the house opposite his home. Rambo apparently had a girlfriend at that house. The first Applicant then realised that Rambo was a more significant target. He then went into the house and informed his comrades about the presence of this "target" in the area.
The comrades immediately and unanimously agreed to attack and kill him. They thought that it would send louder message if they could take him out of the house and kill him at a public place so that his death may be known.
The Applicants, together with other comrades, namely Joseph Moshepe and Clement Mdau who have not applied for amnesty, then went to Rambo's place. Joseph was ordered by the 1st Applicant not to enter the house but to keep guard and warn the others if there was any danger coming.
First Applicant was the first one to go inside with an axe in hand. he saw Rambo seated in the dining room and proceeded to attack him with an axe. The other comrades then joined in.
The second Applicant attacked him with a stick and assisted in dragging him to Khabo school.
The third Applicant hit him with stones and poured him with petrol when they arrived at Khabo School.
The fourth Applicant used a stick and stones to assault him, assisted in dragging him to Khabo School and set him alight after third applicant had poured petrol over him.
That was the evidence in chief of the four Applicants. This application was opposed by the members of the family of the deceased.
Of major concern to the Committee was the evidence of first Applicant. His evidence of what transpired between him and Linkie was crucial to determine whether or not the killing of Ben Masinga was political or was an ordinary murder. In so far as the other members, the Committee is prepared to accept that they had no knowledge of the details and circumstances of the conversation between 1st Applicant and Linkie.
When cross-examined, first Applicant's testimony was found wanting in certain crucial aspects. At page 31 of the transcript, he stated that he was seeing Ben Masinga for the first time on the day that they killed him. He also mentioned that Linkie knew him as a political activist. She knew that policemen were regarded as targets so that is why she came and told him that there was a target in the house. At page 33 he goes on further to say that when he got this information he said "no problem, we'll sort that out". Thereafter he does not know where Linkie went.
Of concern to the Committee is the fact that 1st Applicant seemed to deny things he had said in an inquest. At page 57 of the transcript he stated:-
MR CHAUKE: No, Mr Chair, I never said that.
CHAIRPERSON: So the record is wrong?
MR CHAUKE: Ja, the record is wrong.
CHAIRPERSON: And so you went, it is recorded as you're saying - "She then went to the shebeen. After about 10 minutes I followed her. I went there to call her. She came and said there aren't any people there".
Did you say that: Did you go and call her from the shebeen?
MR CHAUKE: No, Mr Chairman. As I've already indicated in my statement where I met the lady and I did not.
CHAIRPERSON: Yes, so once again the Court record is defective?
MR CHAUKE: Yes, Mr Chairperson.
CHAIRPERSON: And it's then recorded as saying -
"She said that she would go into the house and turn off the light as the policeman was in the sitting room. he was in the chair and he was asleep".
MR CHAUKE: No, that she did not mention to me.
CHAIRPERSON: After the light was turned off she called us and we went into the house. The person who went in first was Clement".
MR CHAUKE: No, Mr Chair.
CHAIRPERSON: So all this is wrongly recorded, wrongly interpreted?
MR CHAUKE: Yes, Mr Chairman, if one can take a thorough trace and make a very thorough trace, most of these statements that time when we were tried, Mr Chairman, they were solemnly(?) written by the cops.
CHAIRPERSON: This was evidence you gave before the Court, it was not something written by a policeman. This is the recording of the evidence given before the Magistrate.
MR CHAUKE: I do understand what the Chairperson is saying, that is why I'm saying that I am denying that.
CHAIRPERSON: It was written by the cops, it was testified to by you. What I have been reading from this, as your counsel will explain to you, is a transcript of the court record.
JUDGE DE JAGER: And it was a tape recording by Lubbe Opnames, like we've got a tape recording here?
MR CHAUKE: Yes, Mr Chair.
CHAIRPERSON: And you say all this is wrong, you didn't say any of what I have read to you?
MR CHAUKE: Yes, Mr Chairman, as I've already indicated while I was asked by the attorney, Mr Nyawuza, that all this other incident that one confessed during that time, it was in terms of defending himself that one mustn't be prosecuted.
CHAIRPERSON: But this isn't confessing, this isn't defending yourself, this is merely telling what happened.
After the close of evidence of the Applicants, the brother of the deceased came to give evidence. His testimony was that his brother was a peace loving person who was well liked by the community and was not the terror which was described by the Applicants. He stated that although his brother had stayed with his wife at in-laws house, at the time of the death they were separated. He had only gone there to fetch some of his possessions. He was no longer staying there.
Linkie, although an implicated person, she came to give evidence. She had legal representation. Her evidence was that on this day her aunt, Ben Masinga's wife, was not at home. She had gone to Soshanguve in an attempt to run away. When the deceased came, he was drunk and wanted to sleep with her. She was scared of the deceased. She decided to go to Gilbert's place, a shebeen, in order to seek help. When she arrived at Gilbert's place, she spoke to Lawrence, who is Gilbert's grandson. She wanted Gilbert to help her or to accommodate her and/or accompany her first to her home to go and lock the deceased inside and then be accommodated at Gilbert's place.
She, however, did not communicate this request to them. She just told them that the deceased was pestering and insulting her. Whilst sitting at the shebeen, the first Applicant came to Linkie. She testified that she knew 1st Applicant very well. She had known him for a number of years because they all grew up in the same area. She, however, denied knowing that he was a political activist.
At page 232 she testified that:-
MS MOKGOKONG: "He called me, then I went to him. Then he said to me: "Who is at the house?" Then he said: "With whom is he?" Then I told him that he's alone. Then he told me that they were looking for that person for a long time. Then he asked me as to why am I there, then I said:" I ran away from him". Then he said "There's no problem, we'll help you".
Further on she was asked "Now Mr Chauke, did he know the deceased?"
Her reply was: - "That's correct, Chairperson, because we were neighbours".
After that she went home and the deceased was attacked by the Applicants. She was in the bedroom whilst the attack was taking place so she was not in a position to say exactly what took place.
Of significance of her evidence which differs from the testimony of the Applicants is the fact that she stated then after the murder the 1st Applicant, together with others, came back and asked for a bucket of water in order to clean the floor. he also asked for a spade so as to remove the blood on the street. She denies having gone to 1st Applicant's place to ask him to harm or injure the deceased. She also testified at page 245:
MS MOKGOKONG: He said to me they have killed Benjamin and they wanted transport so that they could take him from the toilet and take him to another place far away.
MR RICHARD: Where did they find Benjamin's body?
MS MOKGOKONG: His corpse was found by the police in the school toilet.
1st Applicant said that he needed transport so that they could take the deceased from the toilet and take him to another place far away. That was the evidence in chief of Linkie.
Under cross-examination, a certain statement submitted as Exhibit E was put to her. There were certain inconsistencies. For instance, she could not remember certain things that she had said to the police. It was pointed out to her that one of her statements she had mentioned that she knew that 1st Applicant was a comrade.
Whilst this witness was not such a good witness, her contradictions were not of such a nature as to render her whole evidence totally incredible.
The Committee is mindful of the fact that she may well be scared of implicating herself in a murder.
Her evidence, however, casts doubt as to whether or not 1st Applicant has made a full disclosure to the Committee.
The Committee is thus left with a doubt as to whether this killing was politically motivated or whether it was to assist Linkie to get rid of her brother-in-law who was a nuisance to the family.
Also of concern is the fact that 1st Applicant states that he did not know the deceased and yet they were neighbours.
The Committee is not satisfied that the 1st Applicant himself was a good witness as he seemed to deny statements which he made and only gave unsatisfactory explanation when he realised that he had been caught out. In the circumstances the Committee is not satisfied that the 1st Applicant has made a full disclosure of all the facts relating to the murder of Benjamin Masinga.
Accordingly, amnesty is REFUSED to the 1st Applicant for the murder of Benjamin Masinga.
Insofar as the other three applicants, the Committee is satisfied that they were acting on the instructions of their commander and that they were bona fides as to the political motive for the killing of the policeman.
They have also made full disclosure of all the facts relating to this murder.
Accordingly, amnesty is GRANTED to:
Reginald Jabu Simelane
Alfred Simelane
Robbie Bongane Mabuza
for the murder of Benjamin Masinga.
The wife of the late Benjamin Masinga, Kathrin Masinga, is referred to the Reparations Committee.
DATED AT CAPE TOWN THIS DAY OF 2001.
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JUDGE A WILSON
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JUDGE C DE JAGER
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ADV. S SIGODI
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