AC/2001/123

TRUTH AND RECONCILIATION COMMISSION

AMNESTY COMMITTEE

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

BASAYI NXALEKO MAQOKO 1ST APPLICANT

(AM0518/96)

ZWELENKOSI MJO 2ND APPLICANT

(AM2007/96)

DECISION

The Applicants in this matter were both members of the SADA Youth Organisation, also known as SAYO, which was an affiliate of the UDF, which was in turn a front for the African National Congress (ANC) which was banned at that time (1986). They had both been convicted of murder, assault with intent to cause grievous bodily harm and common assault. The first two counts were in respect of the killing of Joseph Sebatana by flogging him for several hours and the third count was in respect of pouring paraffin over Jan Nomkhango Fuzani, who was Sebatana's wife. This happened on or about 1-2 January 1986 near Madakeni.

The Applicant, Mjo, who was referred to by their counsel as the main Applicant and who was the first to give evidence, said in his application (paragraph 10(a) that the political objective sought to be achieved was:

"to achieve a community with one aim, that is to face the enemy with no fighting amongst us. The enemy mentioned here is the apartheid regime. I regret the death and injury."

He goes on in his application to refer to confiscating guns and disarming vigilantes and police informers. Similar reasons are set out in Maqoko's application.

In the affidavit filed by Mjo he mentions a report received by the street committee of which he and his co-applicant were members, of an attempt by one Remamba, a suspected police informer, to shoot his brother. They lured Remamba to a so-called "dark house" where he was interrogated and assaulted in order to obtain information about the firearm which was perceived as a danger to the community. Remamba initially denied any knowledge of it but subsequently said the deceased had it. At that time Mjo did not know the deceased but was told he was a police informer and a Zulu. The deceased was brought to the "dark house" here he and Remamba were severely assaulted with sjamboks and questioned about the firearms. Remamba then said it was in the possession of his brother Mzikayise. Mzikayise was then fetched and questioned and said the firearm was at Mpondoland. The deceased had said he had a pellet gun. He was assaulted further when he would not say where it was. He was subsequently taken to the river because he was screaming and it was thought this would invite the attention of the police. At the river the deceased was assaulted repeatedly and severely with sjamboks. He was struck on the body and the head indiscriminately. The deceased had mentioned, whilst still in the "dark house" that he had given the gun to Nota who was fetched and assaulted. He denied all knowledge of the gun but was not assaulted severely.

At the river the deceased said he had hidden the gun under his hi-fi set. It was not found there. He then said it was buried next to his toilet. They all then left the river to go to his house. The deceased had by then been seriously injured and had to be carried by Remamba. The gun was not found and the group dispersed. On the following day Mjo heard that the deceased had died from the injuries inflicted on him. Mjo approached his wife and asked her not to tell the police about the assault. Mjo explained in his affidavit that the purpose of assaulting the deceased and other vigilantes was twofold, to dispossess them of lethal weapons believed to have been supplied by the police and to punish them for aiding the "enemy". He stated that it was never their intention to kill the deceased but admitted that they were reckless as to whether he died or not. Maqok, in his affidavit, confirmed the allegations of fact in Mjo's affidavit and admitted that he assaulted the deceased with a sjambok repeatedly in the "dark house" and near the river. He said he intervened to prevent comrades from burning the deceased's wife alive.

The post-mortem report referred to in the judgment of the Appellate Division disclosed:

"that Dr Seyisi, who examined the body, found linear abrasions on the anterior aspect of the trunk and thighs, multiple weals on the trunk and on the upper and lower limbs of the body. There were also linear abrasions on the anterior aspect of the trunk. He testified that the weals were so numerous as to be difficult to count. The weals criss-crossed and flowed into each other. The weals were consistent with blows being struck by means of a blunt instrument. He gave as the cause of death stagnant anoxia resulting from a reduced supply of oxygen in the organs of the body. The witness stated that blows inflicted on a body would result in a stagnation of the flow of the book in the blood vessels at the place where the blows are struck. Should the blows struck result in extravasation of blood around the blood vessels, this, if sufficiently extensive, could cause death."

Mjo's evidence-in-chief- was a confirmation of the affidavit already referred to. Under cross-examination he confirmed that the suspicion that the deceased had a gun emanated from Remamba who was not a member of any political organisation. After cross-examination on the point he said that when the deceased's name was mentioned in the "dark house" on of the comrades said he is one of the vigilante created by the police. That is why he claims he can allege that there was a spark of political connection which led to the assault of the deceased. He later said that they did not believe the deceased when he said he had a pellet gun as they knew the police gave vigilantes or informers real guns. However, he went on to say that they went on beating him because he was a vigilante. I addition they wanted to see where the pellet gun was so they could be sure he had a pellet gun rather than a gun.

Maqoko confirmed Mjo's and his own affidavits. He agreed he associated with those who assaulted the deceased's wife as he was present although he then intervened to prevent them burning her alive. He agreed that Nota was assaulted because he said he knew nothing about the gun. He was unable to supply any political motive for the assault on him or the deceased's wife. He later said it was not the aim to assault anyone, they just wanted the gun. That is why the comrades decided to assault Nota and he was part of the decision.

We are satisfied that the Applicants have complied with the technical requirements and that they did not act for personal gain or out of personal malice, ill-will or spite. We are, however, not satisfied that their acts were associated with a political objective as required in terms of Section 20(2) or (3) of the Act. On the evidence of the Applicants and on the evidence set out in the judgments given at their trial and appeal, the Applicants embarked on a vicious and prolonged assault on the deceased based on information subsequently shown to be unreliable or on suspicions that the deceased might have attempted to mislead them. They wanted information about a firearm which the deceased might have had. They did not intend to kill him because of his political activities. The deceased came to their attention as a result of Remamba's statement that the deceased was in possession of the firearm he had used to shoot his brother. They nevertheless embarked on a prolonged, vicious assault on the deceased, reckless as to whether his death ensued or not. This does not, in our view, comply with the requirement of sub-section (2) in that it was not in support of the ANC or within the course and scope of their duties, nor could they have believed that this was so. In addition, the relationship between their brutal, prolonged assault and their objective, that is to obtain information about the possible ownership of a pellet gun or some other gun is grossly disproportionate. There was also no justification for the assault on Nota as a result of the information from the deceased at a time when they were disbelieving the deceased's version, nor for the assault on the deceased's wife who was not suspected of any political or illegal acts.

In these circumstances we REFUSE the Applicant's application for amnesty in respect of all the offences for which they were convicted.

DATED AT CAPE TOWN THIS DAY OF 2001.

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WILSON J

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DE JAGER AJ

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POTGIETER AJ

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