This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
Ruling
ON RESUMPTION
CHAIRPERSON: ...(inaudible) the application to call Mr Peens to give evidence before this Committee. Mr Peens is an implicated person. He was represented until yesterday in these proceedings by counsel. His version was put to the witnesses, in particular to Mr Andries Nosenga who implicated him. That version amounts to a bad denial of the allegations made in the evidence of Mr Nosenga often concerning Mr Peens' involvement with the Boipatong massacre.
This Committee has the power to call any person to appear before it who it believes may assist it in arriving at a decision. We've heard a great deal of evidence, we've also conceded the submissions by counsel. We are satisfied that whatever evidence Mr Peens might give which would be no more than a denial of involvement in Boipatong as was put to the witnesses would not take this matter any further. It is therefore not necessary to hear his evidence. That being the case, that concludes these proceedings.
Mr Strydom, the applicant that you represent has still not shown up.
MR STRYDOM: That is so. As indicated previously what I will do is I will withdraw as his legal representative, I don't think ...(intervention)
CHAIRPERSON: Is there any reason why his application should not be struck off roll forthwith?
MR STRYDOM: I can think of no reason.
CHAIRPERSON: What is his name again?
MR STRYDOM: Mxoliseni Sibongeleni Mkhize.
CHAIRPERSON: What is his full name?
MR STRYDOM: I will spell his first name: M-X-O-L-I-S-E-N-I his second name: S-I-B-O-N-G-E-L-E-N-I Mkhize.
CHAIRPERSON: The application for amnesty by and on behalf of Mxoliseni Sibongeleni Mkhize is struck off the roll.
Now in regard to the date for the hearing of the argument, does anyone have any difficulty with Tuesday?
What time shall we start? 9 o'clock, okay, very well.
Mr Strydom, during the course of the hearing you indicated that even though two of your applicants, I think it was Mr Mthembu and is it Mr Buthelezi who ...(intervention)
MR STRYDOM: Petrus Mdiniso.
CHAIRPERSON: These are the applicants who say that they did not take part in the attack?
MR STRYDOM: Yes Chairperson.
CHAIRPERSON: You indicated that you were going to present legal argument as to why they are entitled to amnesty notwithstanding the fact that they did not take part in the massacre?
MR STRYDOM: Yes I said so, Chairperson.
CHAIRPERSON: Are you still of the same view?
MR STRYDOM: Chairperson, these two applicants are being represented by my colleague, Mr Lowies.
CHAIRPERSON: Oh, I beg your pardon, yes.
Mr Lowies, Mr Strydom, you are aware of the evidence of the two?
MR LOWIES: I've seen the evidence, I've read it and I've prepared on that, yes Chairperson, I'm aware of it.
CHAIRPERSON: Is it the position of these applicants that notwithstanding their denial of having taken part in the massacre and therefore having committed no offence they are nevertheless entitled to amnesty?
MR LOWIES: Chairperson, I'm busy researching that aspect but I'm aware of the pitfalls in that regard. I will give detailed heads of argument regarding those aspects.
CHAIRPERSON: Okay. Would you timeously make sure that whatever legal argument you want to make in that regard is conveyed to Mr Mapoma who appears on behalf of the TRC and also to the legal representative of the victims so that they may consider it?
MR LOWIES: I will make it available timeously.
CHAIRPERSON: ...(inaudible) short heads of argument before the 27th?
MR BERGER: We never proposed that.
MR STRYDOM: No Chairperson, we will try to hand them in before we start argument but on the day of the argument.
CHAIRPERSON: Even if you can take - if we can have that argument before Monday. On Monday.
MR STRYDOM: Yes Chairperson.
CHAIRPERSON: Otherwise counsel will have to take us through the heads of argument.
MR BERGER: Where should we deliver the heads? Can we fax them?
CHAIRPERSON: Well I will be in Johannesburg at the Labour Court so those can be delivered at the Labour Court on Monday.
Alright, okay. We did also indicate that after we've had oral argument it is open to counsel if they so desire to prepare supplementary argument on issues arising from the debate. Yes, very well.
These proceedings are now adjourned to Tuesday, 27th July at 9 o'clock when we will hear submissions by the legal representatives. Thank you.
COMMITTEE ADJOURNS
BEFORE THE AMNESTY COMMITTEE
APPLICATIONS FOR AMNESTY IN TERMS OF SECTION 18 OF THE PROMOTION OF NATIONAL UNITY & RECONCILLATION ACT NO. 34 OF 1995
In the applications of
1. | Mqamboleni Buthelezi | (AM6128/97) |
2. | Bhekinkosi Mkhize | (AM6131/97) |
3. | Tebogo Magubane | (AM6118/97) |
4. | Vincent Khanyike | (AM6124/97) |
5. | Timothy Stals Mazibuko | (AM6122/97) |
6. | Jack Mbele | (AM6119/97) |
7. | Sonny Michael Mkwanazi | (AM6120/97) |
8. | Thomas Lukhozi | (AM7396/97) |
9. | Moses Mthembu | (AM7394/97) |
10. | Mhlupeki Tshabangu | (AM7391/97) |
11. | Sipho Buthelezi | (AM7319/97) |
12. | Petrus Mdiniso | (AM6127/97) |
13. | Mxoliseni Sibongeleni Mkhize | (AM6125/97) |
14. | Paulos Mcikeleni Mbatha | (AM6121/97) |
15. | Richard Dlamini | (AM6132/97) |
16. | Victor Mthandeni Mthembu | (AMI707/96) |
17. | Sithembiso Mountgomery Kubheka | (AM6126/97) |
18. | Andries Mathanzima Nosenga | (AW778/96) |
Heard at the Sebokeng College of Education, Sebokeng from 6 to 14 July 1998 and at the ISCOR Club Hall, Vanderbijlpark from I I to 14 August 1998. 18 to 27 January 1999, 3 to 21 May 1999 and 19 to 27 July 1999.
DECISION
Introduction:
1. The applicants have applied for amnesty in respect of an attack at Boipatong Township and at the informal settlement of Slovo Park, in Vanderbijlpark, that took place on 17 June 1992. That attack was extremely violent. It left approximately 45 people dead, including elderly people, women and children. Many more were injured. It was accompanied by widespread destruction of property and damage to houses and personal possessions. In addition, there was extensive looting and theft from the houses that were attacked.
2. Originally, there were 18 applicants. Mr Thomas Lukhozi, the Eighth Applicant, subsequently withdrew his application. Mr Mxoliseni Sibongeleni Mkhize, the Thirteenth Applicant did not appear at the hearings and his application was accordingly struck off the roll on the last day of the hearing.
Messrs. Moses Mthembu and Petrus Mdiniso:
3. Before dealing with the rest of the Applicants we deal first with the applications of Messrs. Moses Mthembu and Petrus Mdiniso, the Ninth and Twefth Applicants respectively.
4. They testified that they did not take part in the attack and were therefore not guilty of any act which constitutes an offense. Their evidence was corroborated by some of the applicants. We find it inconceivable that if these applicants had in fact taken part in the attack and knowing full Well that what will set them free to tell this committee about their part in the attack, they would nevertheless come and tell the, committee that they did not take part in the attack. On the evidence before us, and we must stress the evidence before us, we are satisfied that Messrs Moses Mthembu and Petrus Mdiniso did not take part in the attack and they are not guilty of any offence or delict in relation to the attack on Boipatong Townsbip on 17"' June 1992.
5. We conclude therefore, that on the evidence before us, the applicants did not commit an act, omission or offence in respect of which amnesty could begranted to them as envisaged in section 20(l)(b) of the Promotion of National Unity and Reconciliation Act 34 of 1995, as amended, ("the Act"). It follows that they an not entitled to amnesty. Mr. Lowies, who appeared on their behalf, did not contend otherwise.
6. Yet we cannot ignore the fact that these applicants are persisting in their Innocence even if this would lead to the refusal of their applications for amnesty. They could have chosen the easy way out and admitted having taken part in the attack, and this would probably have led to them being granted amnesty. They chose not to. Nor can we ignore the fact that their protestations of innocence find support in the evidence of some of the other applicants. Indeed we cannot ignore the fact that on the evidence before us they did not take part in the attack and are therefore innocent of any offence or delict. Yet they have been convicted of having taken part in the attack, However, amnesty is not available to the innocent, it is only available to the guilty.
7. It is understandable why both applicants came to this committee to seek amnesty. They have been convicted of offences relating to the attack and were sentenced to prison terms. They came to the committee in the hope that they would be granted amnesty. They had hoped that what they perceived to be wrong convictions for offences they never committed would be corrected by the Amnesty Committee. This was a mistake on their part. Amnesty is only available to those who have committed offences or delicts and who have complied with the Act. The applicants' remedy does not, therefore, lie in the anmesty process but it lies in an appeal. If their rights to appeal have been exhausted, they should consider approaching the President for pardon.
8. In these circurnstances, their remedy lies in an appeal. If their appeal rights have been exhausted, their remedy lies in section 84(2)j) of the Constitution which makes provision for the President to pardon or reprieve offenders and to remit any fines, penalties or forfeltures. In President of the Republic of South Africa and another -v Hugo 1997 (4) SA I (CC) at para 45, the Constitutional Court referred to at least two situations in which the power to pardon may be important and said:
"There are at least two situations in which the power to pardon may be important. First, it may be used to correct mistaken convictions or reduce excessive sentences and, second, it may be used to confer mercy upon individuals or groups of convicted prisoners when the President thinks it will be in the public benefit for that to happen. In the first situation, it has been recognized in many courts that it can play an important role in enhancing justice within a legal system. As Cooke P said in Burt v Governor-General [(1992) 3 NZLR 672 (CA)]:
'(I)t must be right to exclude any lingering thought that the prerogative of mercy is no more than an arbitrary monarchial right of grace and favour. As developed it has become an integral element in the criminal justice system, a constitutional safeguard against mistakes?"
9. Accordingly the applications by Messrs Moses Mthembu, and Petrus Mdiniso must therefore, be refused
In the result, there are now fourteen (14) applicants whose applications are the subject of this decision.
The Remaining Applications.
10. All the applicants are members of the IFP and at the tirne of the attack, they resided at KwaMadala hostel ("the hostel"), near Boipatong in Vanderbijlpark and which was owned by Iscor.
11. The applications are opposed by the relatives of the deceased and by the victims of the attack. They arc opposed on the basis that, firstly, the applicants have, not made a full disclosure of the relevant facts; and secondly, the applicants have not satisfied the requirement of a political motive, in particular, having regard to the proportionality of their deeds and the motives of some of the applicants.
12. During the hearing a preliminary point was taken that but for W Victor Mthembu's application, the remaining applications did not comply with the formal reuirements of the Act. After hearing argument on this issue, the committee unanimously ruled that all the applications complied with the, formal requirements of the Act,
13. It is necessary at the outset to set out the background events against which these applications must be considered.
The Background Events
14. The background events against which these applications must be considered are hardly in dispute. They amount to the following:
15. Vaal Triangle was plagued by political violence in the early 1990's. The conflict was primarily between the supporters of the lnkatha Freedom party ("IFP') and the African National Congress ("ANC"). This violence affected most, if not all, townships in the Vaal Triangle including Boipatong and the informal settlement of Slovo Park. As a result of this violence, many IFP supporters fled the townships. They eventually sought refuge in an abandoned hostel. Although their initial occupation of the hostel was without the permission of Iscor, they were not evicted, Instead. Iscor regularised their presence at the hostel. This was because some of the IFP members occupying the hostel were Iscor employees. As more and more supporters of the IFP fled from their houses in the townships, they sought refuge at the hostel. Other individuals who ran away from the townships for reasons such as crime or other conflicts also sought refuge at the hosteI. In order to be accepted at the hostel, it was sufficient for such persons to allege persecution by the comrades, or ANC and to declare their willingness to join or support the IFP
16. It is necessary to understand the nature of the conflict between the supporters of the IFP and those of the ANC in the Vaal Triangle as well as the issues involved in that conflict.
17. This conflict must be distinguished from the political conflict between the liberation movements and the apartheid forces. It can probably be traced to the struggle for political control or political dominance of certain areas, In the course of this struggle, both sides to the conflict suffered severe casualties. This loss of lives Ied to an escalatlon of violence A cycle of attack and counter-attack ensued with each side avenging the killing of its members. This violence pitted children against parents, friends against friends, neighbours against neighbours and relatives against relatives.
18. This violence forced people to flee to areas that were identified with their respective parties. In due course, this led to The emergence of so called "no go areas". The hostel was identified as an IFP area while Boipatong Township and Slovo Park informal settlement were identified as ANC areas. Enemies were defined in terms of party affiliation and/or the area where they lived. It did not matter that you did not belong to or support either party. If you lived in an area that was perceived to be predominantly IFP, you were regarded as an IFP supporter. Similarly, if you lived in an area that was perceived to be predominantly ANC, you were regarded as an ANC supporter. The violence perpetrated was indiscriminate. 'No distinction was made between men, women, children or elderly people. Areas were indiscriminately attacked.
19. As the hostels were perceived as lFP strongholds and thus sources of violent attacks against ANC supporters, the ANC called for the closure of the hostels. This call led to further escalations of violence
20. It is in this context that the conflict between the ANC supporters and IFP supporters in the Vaal Triangle must be understood.
21. The hostel became a "no go area" for ANC supporters, while the townships became a "no go area' for EFP supporters. Thus, the enemies of the IFP were the residents of Boipatong Township and Slovo Park, while the enemies of the township resident:s were the residents of the hostel.
22. Both sides suffered severe casualties in the course of this conflict. It is not necessary to set out the statistics of this violence. Suffice it to say that by May 1992, for example, it had been reported that over 50 people had been killed in political violence in the Vaal Triangle since the beginning of 1992 (City Press 24 May 1992). The applicants testified about members and supporters of the IFP who were killed in and around Boipatong in the months before the attack. There was also evidence of violence and attacks against township residents.
23. A3 a result of the political conflict in the Vaal Triangle, township residents set up Self Defence Units ("SDU") to patrol and protect themselves from attaccks by IFP supporters. This was in line with ANC policy elsewhere in the country. Boipatong Township and Slovo Park bad SDUs that patrolled the townships and set up barricades in the streets in order to prevent attacks including so called "drive-by" shootings. There were of course regular police and other security force patrols in and around the townships of the Vaal Triangle.
24. The deaths of IFP suppnrters, at the hands of the township residents resulted in calls by hostel residents for an attack on Boipatong. They wanted to avenge the deaths of their members who had been killed by the Boipatong residents. They felt that they could no longer move freely in the Vaal Triangle because of these attacks. They put pressure on the hostel leadership to authorize an attack on Boipatong. It was this pressure that ultimately led to the decision to attlack Boipatong and Slovo Park and the resultant killings.
25. It is against this background that the present applications for amnesty must be considered
The Decision to Attack the Township Residents:
26. As indicated above, the leadership at the hostel was under pressure from the hostel residents to launch an attack on Boipatong and Slovo Park. The leadership at the hostel consisted of the leaders of Amabutho, the IFP Youth Brigade, IFP Senior Committee members and Hostel Residents' Committee members. Mr Mqambeleni Buthelezi, the First Applicant, was the Chairperson, of the Youth Committee at the hostel. Mr Bhekinkosi Mkhize the Second Applicant, was Induna Yamabutho (commander of the armed wing). As the leader of Amabutho, Mr Mkhize had the authority to authorise the attack. Mr Mqumbeleni Buthelezi testified that a caucus meeting of the IFP leaders at the hostel was held. At this meeting, the idea that Boipatong be attacked was accepted by those present. No decision, however, was taken as to when this attack would take place and no planning or other details were discussed at that stage.
27. Mr Bhekinkosi Mkhize testified that prior to the attack, the residents of the hostel had approached him to establish what steps were being contemplated by the leadership of the hostel in view of the regular attacks on them by the residents of Boipatong. He testified that the residents were getting impatient and were putting pressure on him to come up with a solution. At one stage, he consulted Prince Vanana Zulu ("'Prince Zulu, a member of the Zulu royal family. Prince Zulu who was a member of the Senior Committee in the hostel urged Mr Mkhize to wait and promised to discuss the matter with the Boipatong residents and to urge them to stop the attacks on IFP members. Fearing that the residents would perceive him as an obstacle, Mr. Mkhize felt compelled to take a decision. He testified that he and Mr Damara Chonco, since deceased, took the decision to attack Boipatong. However, the date of the implementation of this decision was not fixed at that time. He further testified that on 17 June 1992 he and Mr. Damara Chonco took the decision that Boipatong would be attacked on that day.
28. There appears to be some conflict in the evidence as to when the decision to attack Boipatong was announced to hostel residents. This conflict can be attributed to at least three factors: First, there was confusion amongst the applicants as to the dates and the times of the various meetings at which the issue of the attack was discussed; Second, not all applicants attended all such meetings; and Third, it was general knowledge that the Township that would be attacked was Boipatong as it was near the hostel. The reference to an attack was therefore, generally understood as a reference to an attack on Boipatong.
29. However, on the evidence, we are satisfied that there were at least three meetings at which the issue of the attack was discussed. At the first meeting the residents were getting impatient with the leadership and demanded to know what steps were being taken by the leadership to stop the, attacks by the township residents. This was approximately two weeks prior to the attack. The second meeting was one at which the leadership urged the residents to get ready for on attack but the date of the attack was not given. This was on the Sunday prior to the attack. The third meeting was held on the evening of 17 June 1992 when it was announced that the day of the attack had arrived.
30. During the evening of 17 June 1992 hostel residents assembled at the hostel stadium following a clarion call. At the stadium, they were addressed by M.r Mkhiza who told them that the day for the attack had arrived. Women were not allowed at the meeting. The rnale residents were ordered to return to their rooms and fetch their weapons. They did so. Some were given firearms from a pile of firearms that had been brought to the stadium by Mr. Damara Chonrco. Ounce they had reassembled at the stadium, they were sprinkled with intelezi to give them strength and courage to face the enemy. Thereafter, they were ready for the attack.
The Attack:
31. An estimated group of between 300-500 armed men then left the hostel to attack Raipatong Township and the neighbouring informal settlement of Slovo Park. They carried an assortment of weapons including spears, knob sticks, pangas, axes, AK-47s, shotguns and handguns. All the applicants, save for Mr Mqambeeleni Buthelezi, testified that they were part of this group. When the attackers reached an area of open veld near Boepatong, they stopped under a tree where they were divided into groups, They then proceeded to enter Boipatong Township from different points. Some entered through Moshoeshoe Street, others through Lekoa Street and others through Mximvubu Street.
32. Upon entering the township, the attackers first encountered groups of SDU members. Some shooting took place. The SDU members fled. The IFP attackers pursued them and thereafter also started attacking other residents.
The attack was extremely violent. It is estimated that it left approximately 45 men, women and children dead, and many more injured. The attack was accompanied by widespread damage to property, and looting. The attackers followed several routes and caused damage to many of the houses and shacks along the way. They entered some houses and shacks, assaulted and murdered residents.
33. All the applicants, save for Mr Mqambeleni Buthelezi, admitted that they took part in this brutal attack. They described how they were armed and what they did. Some described in sordid detail the violence that they perpetrated on the residents. There can be little doubt that the conduct of the attackers and those applicants who took part in the attack constituted both offences and delicts of an extremely violent nature. All those who took part in the attack acted with a common purpose to attack the township and commit the various crimes that were committed during the attack. We are satisfied therefore, that the conduct of those applicants who took part in the attack constituted offences and delicts as envisaged in the Act.
34. Different considerations apply to Mr Mqambeleni Buthelezi. He testified that he had been at a meeting held approximately two weeks prior to the attack, In response to the question whether he associated himself with the Iact of kiIling the people in Boipatong on 17 June 1992, he replied:
"I have already explained that I was one of those persons who had been angered by what the people of Tserela had been doing and I was also in favour of them being attacked because I did not understand why they were attacking us, because we were all fighting the same government, the apartheid govemment. It was the aim of all of us to dismantle the apartheid government, therefore, we decided, that they should be attacked because wewere no longer free to carry out our activities as an organisation.
Tserela refers to Boipatong Township. When specifically asked as to who he was referring to when he said "we decided that they should be attacked", he replied:
"Myself as a leader, the people, the residents of the hostel were complaining about the situation. As a leader you have a responsibility to look into people's complaints and take appropriate action. As leader, I realised that we were losing our members because we were now intimidated. I personally felt that the people of Tserela should be attacked. I even told my colleagues that these people should be attacked."
35. Mr Buthelezi also testified that he "was in favour of the attack, because of the situation, the difficulties that we were experiencing," When he was asked whether he would have joined the attackers if he had not been feeling ill, he replied "yes".
36. It must be recalled that the hostel residents had been putting pressure upon the hostel leadership to take action against the attacks by the residents of Boipatong. The decision which the leadership took that Boipatong Township should be attacked was a response to this pressure. It is in this context that the evidence of Mr Butheleze must be understood. Seen in this context, the import of his evidence is that the leadership at the hostel of which he was part, took a decision to attack Boipatong Hostel. He was in favour of this decision and he even suggested the attack. No date for this attack was fixed. He did not take part in the attack because he was ill. Had it not been for his illness, he would have taken part in the attack. He associated himself fully with attack and with the motives of those who participated in the attack.
37. It is trite that in cases of common purpose the act of one participant in a crime is imputed, as a matter of law, to another participant. It is also trite that common purpose may be derived from an antecedent agreement or can be inferred from the surrounding facts which demonstrate that the person actively associated himself or herself with the motives of those who were actually perpetrating the crime - S vs. Safatsa and Others 1988 (1) SA 868 (A) at 898 A-C. Where there is an anticedent agreement to commit a crime it is not necessary for the individual subsequently charged with the crime to have taken part in its planning or commission. Even if the individual did not know that it was going to be committed, as long as the individual was a party to the agreement and does not evince an intention to disassociate himself or herself from the original agreement, that individual will be guilty of the crime committed following the agreement that was concluded to which he or she was a party. Compare R v Motaung and Another 1961 (2) SA 209 (A) at 210 G-21 IC.
38. Here Mr Buthelezi testified that he took part in the decision to attack Boipatong. He supported the decision and in fact he suggested that they should be attacked. He associated himself with the attack before and after the attack The only reason why he did not take part was because he was ill. In our view, there is nothing to indicate that Mr Buthelezi disassociated himself from the original agreement. On the contrary he associated himself with the original agreement at all material times. We are, therefore, satisfied that the conduct of those who took part in the attack must, as a matter of law, be imputed to him on the basis of common purpose
Was the Attack Associated With a Political Objective?
39. The next question to determine is whether the offences or delicts to which these applications relate were acts associated with a political objective committed in the course of the conflicts of the past. It was submitted on behalf of the victims that some of the acts committed by some of the applicants were disproportionate to the political objective sought to be achieved and that, therefore, their acts were not associated with a political objective. 40. Section 20(1)(b) of the Act requires that:
"the act, omission or offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of subsections (2) and (3)".
41. The basic enquiry, therefore, is whether the offences or delicts committed by the applicants were committed with a political motive. To assist in this enquirey subsection (3) of section 20 sets out the criteria to which reference should be made in determining "whether a particular act, omission, or offence is associated with a political objective". Seen in this context, subsection (3) was intended to assist the committee in determining whether a delict or an offence is associated with a political objective by providing criteria to which reference is to be made. The reference to the proportionality of the act, omission or offence to the objective pursued in subsection (3)(f) must be seen in this context. Proportionally is not a separate and independent requirement for the granting of amnesty. It is part of the enquiry into whether the offences or delicts were committed with a political motive. Where, as here, the acts, omissions or offences were politically motivated and the context in which the acts were committed indicates that they were committed in the course of, or as part of, a political disturbance or event or in reaction thereto, proportionally acquires less significance than it would otherwise have.
42. It is necessary, therefore, to determine the extent to which the criteria in subsection (3) have been satisfied. The motive for the attack was clearly political. The attack took place in a political context. It was committed in the course of, or as part of, the political conflict between the supporters of the ANC and the supporters of the IFP. It was directed at the residents of Boipatong and Slovo Park who were considered to be the political enemies of the residents of the hostel. The attack was carried out in the execution of, or on behalf of, or with the approval of, hostel residents and some of their leaders who were IFP members or supporters. The applicants were all members of the IFP and were residents of the hostel. There is a clear relationship between the attack and the political objective that the attackers sought to achieve. They wanted to avenge the death of other IFP supporters at the hands of township residents. They also wanted to send a message that such attacks on IFP hostel dwellers would not be tolerated and should cease. All the residents of Boipatong regardless of their age or sex were perceived as enemies and were therefore considered to be legitimate targets of the attack.
43. In all these circumstances were are satisfied that the delicts and offences that were committed by the applicants relate to acts associated with a political objective committed in the course of conflict between the supporters of the ANC and the supporters of the IFP. There can be no question that all the applicants who took part in the attack did so on the basis that they were attacking their enemies. That some of the applicants had had their relatives killed and, therefore, wanted to avenge the death of their relatives does not, in our view, detract from the objectives of the attack, which were politically motivated. Indeed, even those applicants who wanted to avenge the death of their relatives did so within the political context of the conflict between the supporters of the ANC and the supporters of the IFP. There was no suggestion that those relatives had been killed for any reason other than that they were members or supporters of the IFP. The attackers believed that their relatives had been killed because they were IFP members or supporters. They were, therefore, killed in the course of a political conflict and the revenge was a reaction to that killing and thus part of the same conflict.
44. It now remains to consider whether the applicants have satisfied the third requirement, namely, that of full disclosure.
Have the Applicants Made a Full Disclosure:
45. On behalf of the objectors, it was submitted that the applicants have not satisfied this requirement. This submission was based on the evidence of Mr. Andries Mathanzima Nosenga, the Eighteenth Applicant, and the evidence on behalf of the victims to the effect that the police were present and took part in the attack. In their evidence, all the applicants denied that the police were present during the attack. We deal first with the evidence of Mr. Nosenga.
The Evidence of Mr. Andries Mathunzima Nosenga:
46: Mr. Nosenga was the last applicant to testify. He testified that he had arrived at the hostel during 1991 after he had escaped from ANC comrades in Sebokeng where he had been accused of burning down the garage of one Mr. Nkutha. Upon arrival at the hostel, he joined the IFP. While at the hostel, he took part in some attacks on ANC supporters. These included attacks at Small Farm, Sebokeng zone 12 and at Boipatong. He further testified that he was part of the group of armed men who attacked Boipatong on 17 June 1992. He was armed with an AK-47. He described the events leading to the attack and his role during the attack. His version differed in a number of material respects from that given by the other applicants. He is the only applicant who testified about the presence of the police during the attack.
47. Whether Mr. Nosenga was present during the attack is a matter that was hotly disputed by the other applicants. The other applicants denied that Mr. Nosenga was present at the hostel when the attack took place. They testified that he only came to live at the hostel long after the attack had taken place. The central issue in relation to the evidence of Mr. Nosenga is whether his evidence is reliable and credible. The issue is one of credibility.
48. Mr. Nosenga was an appealing witness to say the least. He contradicted himself in a number of material respects. Certain aspects of his evidence were not only unsatisfactory but also inherently improbable. He manufactured replies whenever he was confronted with earlier inconsistent evidence. If he could not manufacture a reply he would blame the people who interpreted for him or claim that he did not understand the question or blame the headphones. We need only refer to some aspects of his evidence in order to illustrate this.
49. He contradicted himself on the events: at the hostel prior to the attack; on the way to attack; during the attack; and subsequent to the attack. These contradictions are also apparent when his evidence is compared to the statements he had made previously. Initially he sought to distance himself from those statements but it was quiet clear that the signatures and the names on the statements were his. He sought to blame the inconsistencies on the interpreters. Yet, he admitted that the statement taken from him by the officials of the TRC was read to him sentence for sentence and he corrected it where it was inaccurate. He could not explain the inconsistencies in that statement which he claimed he had corrected.
50. All the other applicants testified that Mr. Bhekinkosi Mkhize was the leader of the attack and was assisted by Mr. Damara Chonco. Mr. Nosenga not only did not know Mr. Mkhize and what his position was at the hostel but he also denied that he was the leader of the attack. It is common cause that the day after the attack the police sealed off the hostel and all residents were confined to their individual rooms. Mr. Nosenga knew nothing about this. Mr. Nosenga testified that had it not been for torture by the police and his subsequent conviction he would not have revealed the Sebokeng attack and what happened in that attack. Yet, he was prepared to volunteer information about Boipatong in respect of which he was neither arrested nor convicted. He testified that in order to conceal the true identity of the pesons who took part in Sebokeng he was prepared falsely to implicate innocent people.
51. The contradictions and the inherent improbabilities in the version testified to by Mr. Nosenga must be viewed against the circumstances under which he came to join the other applicants during the hearings. He was not amongst the original applicants but only joined them after the hearings had commenced. He gave as a reason for appearing at that stage the fact that after he had seen the hearings on television he became concerned as to why he had not been called to the hearings as he had made an application for amnesty in relation to the Boipatong attack. He therefore contacted certain persons to alert them to the fact that he was one of the applicants and that he wanted to be assisted in attending the hearings. However, he later denied having contacted anyone but testified that all the persons who came to him did so of their own accord. He later gave details of persons who he claimed he contacted by telephone and whom he requested to come and assist him with his application. In this regard, he mentioned the name of one Ms. Patience Molekane of the ANC. When eh was called upon to explain this apparent inconsistency, he gave conflicting explanations. He first said he was afraid of disclosing the fact that the ANC had come to visit him. When I was put to him that some of the people who had contacted him were lawyers he changed his version to say he had forgotten that he had contacted these persons. He repeatedly stated that he decided to make the application after he had seen the applicants not telling the truth and because he was involved in the attack. Yet, in the same vein he testified that when he saw the applicants testify he had already made his application for amnesty.
52. Having regard to the numerous contradictions and the inherent improbabilities in the evidence of Mr. Nosenga and the unsatisfactory nature of his evidence, we have no hesitation in rejecting his evidence as untruthful. We reject his evidence where it conflicts with that given by the other applicants. Accordingly, his application falls to be refused as failing to meet the requirements of the Act.
The Evidence on behalf of the Victims:
53. In assessing and evaluating the evidence of various witnesses who testified, we bear in mind that the events about which they testified occurred some 7 years ago. Memory lapses are therefore to be expected. In addition, they were testifying to events that were moving fast and in circumstances under which the witnesses were subjected to a traumatic situation. It was at night and dark and the circumstances were not ideal for a proper opportunity for observation. Another important factor to bear in mind is that the witnesses have told their stories repeatedly and have over the course of the years discussed these events amongst themselves and with others. The tendency to reconstruct and add in perceptions and aspects heard from others is, in the circumstances, difficult to avoid.
54. The evidence of the victims who testified to having seen white men with blackened faces and/or wearing balaclavas is fraught with difficulties. There are material inconsistencies in their evidence. The circumstances under which they claim to have made the observations were not ideal for accurate observation. In addition, the evidence of some is inconsistent with the earlier statements that they had made. However, even if we were to accept their evidence that they saw white men with blackened faces, such evidence does not demonstrate that the applicants were not telling the truth when they testified that there were not white men in the groups in which they were. In this regard, there was no suggestion in the evidence that nay of the applicants were seen in the vicinity of these white men with blackened faces. There were approximately 300-500 attackers some of whom wore balacklavas, show descended on the township. This group later split into smaller groups. None of the victims identified any of the applicants as being where these white men were seen. Nor was there any evidence to suggest that the applicants would have seen these white me. In the result, we are unable to find as a matter of probability that the applicants failed to disclose the presence of white men with blackened faces and/or wearing balaclavas during the attack.
55. Some victims, notably Mr. Baloyi, testified about the presence of police and/or security force vehicles during the attack. It is common cause that shortly before the attack the police patrolled the township removing barricades and dispersing SDU members. Different time estimates were given in evidence as to the last time that the police were seen in the township immediately prior to the attack. Mr. Ragatlhane testified that he saw the police at approximately 21h50. The memorandum submitted on behalf of the victims estimated the time of the police dispersing the SDUs as between 19h00 to 21h00. On the other hand, Mr. Baloyi testified that he saw a "Koyoko" at about 22h20. Affidavits by several police, army and Iscor security personnel speak of reports of intense gunfire and trouble at Boipatong around 21h00. They also mention seeing groups of attackers returning towards the hostel shortly after 22h15. Thus on the evidence it is not possible to establish the precise time when the attack commenced, nor is it possible to say with certainty how long it lasted. On the probabilities, however, the attack must have commenced sometime after 21h00. It must have ended by 22h15 and accordingly it probably lasted less than an hour and a half.
56. It is further common cause that shortly after the attack there was chaos and confusion in the township. Residents were moving about the streets in search of their relatives. Others were coming out from their hiding places such as the refuse dump on the outskirts of the township. The police and the ambulances arrived shortly after the attack to remove the dead and the injured. It is therefore not improbable that there would have been groups of people in the streets at about the same time that there were police vehicles and ambulances. In our view, it is against this background that the evidence given by the victims relating to the presence of police vehicles during the attack must be understood.
57. Mr. Baloyi testified that he saw a police vehicle escorting the attackers out of the township. However, a closer examination of his evidence demonstrates that what he saw was a group of attackers who were in the veld and an army or police vehicle directing its headlights toward this group of attackers. He also testified that he saw two or three other police or army vehicles that had been parked near a tree, proceeding towards Metal Box where they joined two other Koyokos. He also saw a police officer coming out of one of the Koyokos and firing a shot that flared and lit up the sky. This evidence is not inconsistent with that given by the applicants. They testified that as they were in the veld returning to the hostel they saw an army vehicle and they hid themselves in the grass. This vehicle made a U-turn and directed its headlights at them, apparently being suspicious and thus investigating. The vehicle then proceeded in the direction of Metal Box where it joined two other army or police vehicles. A shot was fired into the sky from one of these vehicles and a flare lit up the sky. In our view, the two versions are not inconsistent in spite of the differences in interpretation. On the evidence before us, we cannot say that the only reasonable inference to draw is that the police vehicles that Mr. Baloyi saw accompanied the marchers. Accordingly, on the evidence of Mr. Baloyi we are unable to find that the police or army vehicle was accompanying the attackers.
58. The presence of the police shortly before the attack and shortly after the attack may easily have led the township residents to conclude that the attackers were accompanied by the police. In particular the chaotic situation and the confusion that prevailed shortly after the attack, with the residents moving about the streets in search of their relatives and the presence of the police to remove the dead and assist the injured, may well have fortified such belief in the mind of the residents that the police indeed accompanied the attackers. It is probable, therefore, that the police or army vehicles that were seen by the victims who testified were those that either patrolled immediately prior to the attack or those that came shortly after the attack to remove the dead and injured. In the result, we are unable to say, as a matter of probability that the attackers were accompanied by police or army vehicles. It follows therefore, that we were cannot find that the applicants failed to disclose the presence of police or army vehicles during the attack.
59. There is one aspect on the issue of the involvement of the police in the attack that we must address and which was alluded to in argument on behalf of the victims. There were regular police patrols in the Vaal townships, including Boipatong. The police knew that there was a great deal of animosity between the township residents and the hostel residents. Hence patrols were conducted in the vicinity of the hostel as well. Yet a group of approximately 500 armed men was able to proceed to the township, carry out the attack and return to the hostel undetected. The timing of the attack and lack of detection is indeed a cause for concern. This strongly suggests that the leaders of the attackers had information on the movements of the patrols and that it would be safe if the attack was launched at the time and date that they selected. We need not speculate on how such information could have been obtained. Suffice to say that there is no credible evidence to suggest that there was any conspiracy between the leaders of the attack and the police in this regard. Nor is there any evidence to suggest that the applicants knew of such conspiracy if one existed. All that is there is a suspicion which does not rise to the level of probability. In the result we cannot find that as a matter of probability the applicants failed to disclose any conspiracy.
60. The final aspect on the issue of full disclosure related to the presence of Prince Zulu. The applicants testified that he was not present during the attack. Mr. Baloyi testified that he saw Prince Zulu during the attack and that Prince Zulu called out to one of his sons. However, in the statement that Mr. Baloyi made to the police there is no mention of Prince Zulu coming to the house, calling for his sons and attacking his next door neighbor. When it was put to Mr. Baloyi that Prince Zulu was not present during the attack, his reaction was: "How could he be absent as a leader." This reaction suggests that according to Mr. Baloyi, Prince Zulu should have been there because he was a leader. However, Mr. Baloyi was unable to explain the inconsistency between his evidence and the statement to the police relating to the presence of Prince Zulu. Nor could he explain why the memorandum which was submitted on behalf of the victims made no mention of Prince Zulu having been present during the attack.
61. Mrs. Elsie Buwa testified to being attacked by Prince Zulu. She says she knew him and describes the attack by Prince Zulu on her. She could not explain why this aspect was missing from her statement that had been made previously to the police. In any event, she does not identify any of the applicants as being present or in the vicinity during Prince Zulu's attack on her.
62. The evidence of Mrs. Pulane Hilda Monokoane suggests that a person by the name of Zulu was present during the attack. This witness was in our view reliable. She did not exaggerate her evidence. However, her evidence in our view does not take the matter any further.
63. In all the circumstances, we are unable to say the applicants are not telling the truth when they say that Prince Zulu was not present during the attack. There was no suggestion that Prince Zulu was seen in the vicinity of any of the applicants. On a conspectus of the evidence, we are unable to find any basis from which we can find that the applicants should have been aware of the presence of Prince Zulu at the places where Mr. Baloyi, Mrs. Buwa and Mrs. Monokoane testified they saw or heard him.
64. The comments made in paragraph 53 above in relation to the witnesses on behalf the victims are also applicable to the applicants' testimony. We cannot say that the testimony of all the applicants was without difficulties. The evidence of some of the applicants was not entirely satisfactory, in particular on whether Prince Zulu was at the hotel at the time of the attack. However, on a broad evaluation of their testimony we are satisfied that their evidence was consistent with the probabilities and that the unsatisfactory aspects in the evidence of some do not warrant a finding that they did not make a full disclosure of all the relevant facts.
65. In the result, we are satisfied that the remaining applicants have complied with the requirement of the full disclosure.
Conclusion:
66. In the event we find that:
1. The following applicants have complied with the requirements of the Act and that they are granted amnesty:
Mqamboleni Buthelezi | (AM6128/97) |
Bhekinkosi Mkhize | (AM6131/97) |
Tebogo Magubane | (AM6118/97) |
Vincent Khanyike | (AM6124/97) |
Timothy Stals Mazibuko | (AM6122/97) |
Jack Mbele | (AM6119/97) |
Sonny Michael Mkwanazi | (AM6120/97) |
Mhlupeki Tshabangu | (AM7391/97) |
Sipho Buthelezi | (AM7319/97) |
Richard Dlamini | (AM6132/97) |
Victor Mthandeni Mthembu | (AMI707/96) |
Sithembiso Mountgomery Kubheka | (AM6126/97) |
In respect of acts, omissions or offences committed during the attack at Boipatong Township and Slovo Park informal settlement on 17 June 1992, except as provided for in paragraph 67 below;
2. The following applicants have not complied with the requirements of the Act and they are not entitled to amnesty:
Moses Mthembu | (AM7394/97) |
Petrus Mdiniso | (AM6127/97) |
Andries Mathanzima Nosenga | (AW778/96) |
Their applications for amnesty are refused.
67. There is nothing in the evidence to suggest that part of the motive for the attack was to steal the property of the residents. Those who did so, therefore, did so for personal reasons and their acts were consequently not politically motivated. Accordingly, amnesty cannot be granted in respect of such acts.
68. The Committee is of the opinion that the relatives and dependants of the deceased persons referred to in Exhibit "O" are victims and they are accordingly referred to the Reparation and Rehabilitation Committee in terms of section 22 (1) of the Act.
69. The Committee is of the opinion that the persons referred to in exhibit "O" as having been injured or whose property has been destroyed, are victims and they are accordingly referred to the Reparation and Rehabilitation Committee in terms of section 22 (1) of the Act.
70. During the course of the hearing the Committee was informed that other people were injured or had property destroyed during the attack. However, none of these persons have testified, attested to affidavits or been mentioned in the documentation before us and accordingly we have no details of such people. Nevertheless, we are of the opinion that should they come forward and satisfy the Reparation and Rehabilitation Committee that they were injured or suffered loss during the incident, they would be entitled to be treated as victims in terms of the act.
Signed at Cape Town on this 24 day of November, 2000.
JUDGE S NGCOBO
ADV S SIGODI
MR JB SIBANYONI
MR I LAX