AC/2000/006

APPLICATION IN TERMS OF SECTION 18 OF THE PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT, NO.34 OF 1995 ______________________________________________________

On the 2nd November 1987 the applicant and others were convicted at the Durban and Coast Local Division for murder of Themba Cele. They were sentenced to many years imprisonment. The applicant received a sentence of fifteen (15) years imprisonment which he completed in 1998. It is for the said offence that he is seeking amnesty. The application arises out of an incident of the 7 August 1986 which occurred at "M" Section, Umlazi on the 7 August 1986 when a group of youths, including the applicant, attacked the deceased and his employee, Nkosinjani Lubanyana.

At the hearing the applicant was the only witness to testify in support of his application. Lubanyana who had sustained serious physical injuries as the result of the attack testified and opposed the application.

Another witness who testified was Bongani Cleopus Cele who, for the sake of clarity, will be referred to as Cele jnr. The deceased was his brother. The evidence of both witnesses shall be dealt with hereunder.

It is necessary to commence our decision with a synopsis of the background to the incident but before we do so we should mention that Umlazi is situated in the Kwa-Zulu Natal region. Since the 1980s the area has been troubled by violent conflict between ANC/UDF and the IFP. The applicant and his co-perpetrators were members of the "Umlayco" Youth Congress, an affiliate of the UDF. For the sake of clarity UDF was an umbrella body to which several anti-apartheid organisations inside the country were affiliated. An individual person could not be a member of the UDF directly and could only do so by joining one of its affiliates which include church bodies; youth organisations; women's organisations; civic organisations and many others.

The deceased operated a business of selling liquor in the Umlazi township which he used to deliver to his customers with a truck. Lubanyana and Cele jnr used to assist him and more particularly, the former who worked as a full-time employee. On a previous occasion Cele jnr was delivering liquor to customers when an amount of R500 was taken from the vehicle. At the time he had entered a house and had left the door of the vehicle open. The deceased was not present on that day and he reported the incident to him. The latter reported the incident to the police. The deceased took the police to the place where he had seen the suspects who were throwing stones at him.

As the result of a confrontation which then ensued between the police and the youths, Nkosinathi Cele was shot dead. The youths, including the applicant, believed that the deceased was responsible for the death of Nkosinathi and a meeting was held to discuss the matter. At the meeting which was attended by the applicant, it was decided that the deceased be killed. It was believed that he was an informer who worked with the police.

They also believed that he was a member of the IFP whose members were responsible for attacks on UDF supporters. According to the applicant at that stage the Umlazi area was an IFP stronghold and they had to keep their being UDF supporters a secret to avoid IFP attacks and police harassment. The applicant also testified that whilst he was away from home the deceased came there to enquire as to his whereabouts whereafter he was told that he was in Johannesburg. He was in the company of other IFP members and said he was going to shoot him. The applicant's home was at "N" Section, which area was not IFP dominated. It used to be targeted by IFP supporters. His home was also attacked several times. On a certain day he saw the deceased in a vehicle with other IFP supporters. They were going past his home and the deceased pointed it out to his IFP companions, whereafter it was attacked.

Amongst those that were in the company of the deceased was one Sabelo, a known IFP member. He could not identify the others. The applicant says in the circumstances the deceased had to be killed to prevent further attacks and killing of UDF supporters. They were also angry that he had caused Nkosinathi to be killed by the police. On the day of the attack the deceased was stabbed and "necklaced". He died on the scene. The applicant played a prominent role in the attack. he says he did not personally attack Lubanyana as he believed that he was innocent and had done nothing wrong.

Both Lubanyana and Cele jnr deny that the deceased was a member of the IFP. They say he had no political affiliation at all and in his conversations never referred to political matters and organisations. Although IFP dominated the area this did not lead to violence. They both did not know the applicant before the killing of the deceased who had never mentioned his name to them. They both agree in their testimonies that ill-feelings between the deceased and the youths started after the killing of Nkosinathi. It was a direct result of his murder. Significantly, in his evidence he testified that there was unrest in the Umlazi area and more particularly at "M" Section where the deceased was killed. It was not easy for white-owned commercial vehicles to enter Umlazi as they would be burnt by armed youths. They are however unable to say whether the evidence was politically motivated.

After considering the evidence of the applicant we are satisfied that the murder of the deceased was politically motivated. The applicant and his companions honestly believed that he was working with the police against UDF supporters and had caused the death of Nkosinathi, a UDF supporter, by pointing him out to the police. The hostility that existed between the police and supporters of liberation organisations at the time in question merits no repeating. This is a well-known historic fact and it obviously contributed in the death of the deceased, who might not have been a member or supporter of the IFP at all. In this regard the evidence of the applicant also needs reference. Although his evidence that the deceased was an IFP supporter was not very convincing, its discrepancies are not of such a nature as to detract from the attack being an "act associated with a political objective".

We accept that they acted as they did because they believed they had to do so to protect further attacks. It is also clear that the applicant and his group genuinely believed that the deceased was a police informer and an IFP supporter. The evidence discounts any possibility of malice on their part and acting for personal gain. The incident occurred as the result of the conflicts of the past.

We further accept that he has given a full disclosure of the relevant facts and has complied with the requirements of the Act.

In the result the application is GRANTED amnesty for the murder of the deceased.

The dependants of the deceased are referred to the Reparation and Rehabilitation Committee for consideration as victims in terms of the Act.

SIGNED AT..................THIS.....DAY OF..........2000

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JUDGE S MILLER

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ADVOCATE N SANDI

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MR W MALAN