TRUTH AND RECONCILIATION COMMISSION

(AM 7355/94)

LULAMILE KHWANKWA 2ND APPLICANT

(AM 3868/96)

First Applicant is NKOSINATHI MPUMELELO MVINJANE, born on 16 March 1972, and previously resident in Pimville, Gauteng.

Second Applicant is LULAMILE KHWANKWA, born on 10 September 1971, and also previously resident in Pimville, Gauteng.

Both Applicants were arraigned and convicted in the Witwatersrand Local Division of the then Supreme Court on 25 March 1993 in case number 42/92 on the following charges:

They were each sentenced on 9 August 1993 as follows :

The sentences in respect of counts 2, 3 and 4 were ordered to run concurrently, resulting in an effective sentence of 35 years imprisonment for each Applicant. They are currently serving those sentences.

Applicants have applied for amnesty pursuant to the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act") in respect of the abovesaid convictions. All the said charges arose from an incident on 20 August 1991 at Area 6, Pimville, Gauteng, when one Simon Makhudu Kungoane, a traffic officer, was shot and killed and robbed of his service pistol a 9mm Beretta. The 7.65mm pistol referred to in count 3 was used in the attack upon the deceased.

Both Applicants testified and called a witness, Jabulani Joseph Khumalo, in support of their applications. Their evidence was not in dispute.

Johanna and Leonard Kungoane, respectively the sister and brother of the deceased, also testified. They both indicated that they are opposing the applications, even though they were unable to testify as to the merits of the incident in issue. We will return to their evidence.

First Applicant had deposed to an affidavit which forms part of the record before us and basically confirmed its contents in his testimony. His version briefly summarised is to the effect that he is a member of both the Pan Africanist Congress ("PAC") as well as the Azanian People's Liberation Army ("APLA"). He joined both organisations during 1991 after having been recruited together with Second Applicant by an APLA cadre from Tanzania known as Moss. He joined an APLA unit together with Second Applicant and one, Doctor, under the command of Moss who gave them basic military training. It was their duty as APLA operatives to repossess arms from, inter alia, members of the security forces, including traffic cops. These persons were the main pillars of Apartheid and had to be attacked to render Apartheid unworkable.

During the night of 19 August 1991, their unit was on patrol searching for an appropriate target for attack. They were unsuccessful and on the morning of 20 August 1991 they retired home. First Applicant and Doctor were on their way to the latter's home when they saw the deceased in the street and decided to disarm him. First Applicant ordered the deceased not to move, but had to shoot him when the deceased tried to draw his firearm. Doctor took the firearm of the deceased and they ran away.

On the way they met Second Applicant who went to survey the scene of the incident after he was told what had happened. They reported the incident and handed the deceased's firearm to Moss. Second Applicant joined them and informed them that there was an eye-witness to the incident and that they should expect the police to search for them soon. They collected all their arms and left for a hideout. Applicants were subsequently arrested.

Both Applicants testified that they were delinquents who engaged in criminal activities and gangsterism prior to being recruited by Moss and are now rehabilitated. This much is borne out by their criminal records and is common cause.

Second Applicant confirmed the evidence of First Applicant in all material respects. He testified that he was not present when the deceased was shot but agreed with the action taken as being within their duty as members of APLA. He subsequently assisted the others in the manner set out above. He clearly associated himself with the attack upon the deceased.

Mr Khumalo testified that he is a member of the PAC National Executive Committee and a member of their Cabinet. At the time of the incident he was the Chairperson of the PAC, Katlehong branch. He was aware of the incident in question and confirmed the status of Moss as a member of APLA and that the attack was sanctioned by the PAC and APLA. He testified in great detail about the assistance he had given Moss who was wounded in a shoot-out with the police after the arrest of the Applicants who had taken the police to Moss' place. The latter informed the witness that he had recruited some criminals whose lack of political sense and experience resulted in the police tracking him down and wounding him. This was an obvious reference to the Applicants. Moss had subsequently died in another incident. APLA had taken responsibility for the attack upon the deceased. His evidence was not attacked in any way and stands uncontroverted.

In all the circumstances of the case, we have no hesitation in accepting the case presented to us on behalf of the Applicants. We accordingly find that the Applicants had made a full disclosure and that the attack upon the deceased was an act associated with a political objective pursuant to the provisions of Section 20 of the Act. We are particularly fortified in the latter conclusion by the testimony of Mr Khumalo who has made a particularly good impression as a witness and has dispelled any doubts that could arise in this regard in view of the particular background of the Applicants as set out above.

Although Second Applicant did not physically participate in the attack upon the deceased, he clearly associated himself with the incident to such an extent as to render him legally liable.

We are satisfied that the Applicants have met all the requirements set out in the Act and they are accordingly GRANTED amnesty in respect of the following offences :

In the course of their testimony the sister and brother of the deceased expressed the understandable pain and anger of the family at the loss of their loved one. They also addressed specific remarks at the PAC. In view of the peculiar circumstances of the case and in an attempt to facilitate a possible process of reconciliation, we allowed Mr Khumalo upon his request an opportunity to address the family of the deceased. He extended a stirring apology to the family and made a passionate plea that the family would be able to accept the apology and be able to eventually put the pain and incident behind them. We are hopeful that the seeds have been planted for a process of healing for the family of the deceased.

We are of the opinion that Beauty Tembi Ngubane and Sipho Kungoane, respectively the wife and son of the deceased, are victims in relation to the death of the deceased. The matter is accordingly referred to the Committee on Reparations and Rehabilitation for its consideration in terms of Section 26 of the Act.

ADV. D. POTGIETER, A.J.

MR I. LAX

ADV. S. SIGODI