Issued by: Truth and Reconciliation Commission
August 18, 1997
(The following summary of the application, and the main points of the decision and reasons therefor, is given purely to assist those journalists needing a quick initial summary of the application and is not a binding document with any legal status.)
The Truth and Reconciliation Commission has refused amnesty to an ANC member convicted of murdering two women and a two-year-old boy in a revenge attack which took place in the course of ANC-IFP conflict in KwaZulu-Natal.
In two further cases, involving incidents in the Free State, the TRC's Amnesty Committee:
- Granted amnesty to two ANC activists and a prison warder in respect of charges which arose from conflict in a tavern in Tumahole near Parys; and
- Granted amnesty to a Free State man who attacked members of a family serving on a local council but denied him amnesty for the attempted murder of their 11-year- old son.
Details of the applications follow:
1. Henry Mkheyi Khanyile
Khanyile applied for amnesty in respect of charges arising from a revenge attack on a home by ANC members on March 15, 1992. The attack occurred after the house of one Cele, an ANC member, was set alight, allegedly by members or supporters of the IFP, in the Mapumulo district of KwaZulu-Natal.
During the revenge attack, on the home of a Mr Ngcobo, a 73-year-old woman, a 38-year-old woman and a two-year-old boy were shot and killed. Khanyile was also convicted of the attempted murder of two other boys.
The Committee noted that during the amnesty hearing, Khanyile admitted shooting all those who died in the attack, but persisted in a denial - made originally during his trial - that he had entered the house.
The Committee said:
"He (Khanyile) says he fired all the shots from outside, moving from one spot to another, such as from door to window, shooting blindly. He says he never specifically aimed at any of the victims. That each of the deceased was hit more than once, was pure accident. We find this to be highly improbable. It is more likely that the applicant was in the house when he shot these people...."
The Committee also found improbable Khanyile's evidence that he met the two boys he attempted to kill after they had come out of the house.
"If indeed the applicant was firing shots from outside the house, the boys would not have left the relative safety of the house to venture outside where the shots would have been coming from.
"In maintaining that he never entered the house but merely shot blindly from outside, the applicant did not, in our view tell us the truth on this material aspect of the case. One must also bear in mind that each victim was shot more than once. In our view the applicant must have entered the house and shot his victims there, as was testified to during his trial.
"Section 20 (1) (c) of the Act requires an applicant to make a full disclosure of all relevant facts. In withholding the truth from us, the applicant has failed to make such a disclosure. There are many other respects in which the applicant contradicted himself in material respects; for example, on the question whether they actually pursued their attackers to Nqcobo's kraal, or whether they subsequently launched an attack after they were told as to who the attackers of Cele's house were. He has contradicted himself so much on this aspect, that it is impossible to know where the truth lies. This indicates that the applicant chose not to be frank, and in the process has failed to make a full disclosure of all relevant facts.
"Amnesty is therefore refused."
The panel which took the decision included Judge Hassen Mall, Judge Andrew Wilson, Judge Bernard Ngoepe, Adv. Chris de Jager SC and Ms Sisi Khampepe.
2. Diteko Benjamin Cholota, William Oupanyana Thoabala and Simon Pule Moalosi
Cholota and Thoabala, members of an ANC Self-Defence Unit, applied for amnesty as a result of their convictions for the attempted murder of a Mr Plaatjie, allegedly a member of a gang which used to terroriste people, especially ANC members.
The two were among a group which visited a number of taverns one night in May 1992, intent on disarming "enemies of the ANC..."
At the same time as attacking Plaatjie, the group assaulted Simon Pule Moalosi, a prison warder also visiting the tavern. Moalosi fled the tavern and returned with his firearm, concerned about the safety of his younger brother. When he entered the tavern, he shot Plaatjie after mistaking him for Thoabala, whom he regarded as a dangerous man.
Moalosi applied for amnesty in respect of the murder of Plaatjie.
The Committee accepted that the acts of all three were associated with political objectives and granted them amnesty.
The panel which heard the applications comprised Judge Andrew Wilson, Judge Bernard Ngoepe and Adv Chris de Jager SC.
3. Nzimeni Jack Menera
Menera applied for amnesty during hearings in Bloemfontein in March and May this year.
His application concerned an attack on the home of Mr Morgan Phehlane at Majwemasweu, near Brandfort on July 14, 1991, the attempted murder of Mrs Susan Phehlane, the attempted murder of 11-year-old Patrick Phehlane and assault with the intention to inflict grievous bodily harm to Edward Phehlane, another son.
Mr and Mrs Phehlane were members of the local council who refused to resign under pressure from a Self-Defence Unit led by Menera.
The Committee said that although a local ANC office-bearer had told Mr Phehlane at the time of the attack that it was not in accordance with ANC policy, the ANC had not opposed amnesty. The Committee said:
"In fact, Mr Memani, who appeared on behalf of the Applicant on the instructions of the NC, submitted that the deeds were approved by Mrs Winnie Mandela who harboured and assisted the Applicant after the commission of the offence. This submission was based on the fact that the Applicant gave evidence that after committing the offences, he travelled to Johannesburg where he reported the happenings to Mrs Mandela, who accommodated him at the Safari Hotel and advised him to quit the country. Mrs Mandela was given notice in terms of Section 19(4) of the Promotion of National Unity and Reconciliation Act No 34 of 1995 of the above fact but did not make any representations in this regard. The Applicant regarded her attitude as an approval on behalf of the party. He thus avers that he acted on behalf of, and with the approval of, the liberation movement in terms of the Act."
After reviewing evidence relating to three members of the Phehlane family, the Committee said:
"The Committee concludes that these acts were associated with the political objective of destroying the Phehlanes' influence in local politics. Edward was seen as the leader of the group formed to support Morgan and Susan Phehlane. This group was, according to the evidence, perceived to be collaborating with the then government structures in opposing the UDF/ANC alliance."
However, dealing with the evidence in relation to Patrick, the Committee noted that when Menera appeared at the amnesty hearing, he denied attacking the boy, contradicting his evidence during his criminal trial. He attributed the attack to another member of the SDU.
The Committee said:
"The Applicant finds himself on the horns of a dilemma: if the Committee accepts his evidence at the trial as the true version, then obviously he did not make a full disclosure of the relevant facts pertaining to his own role in the assault on the child before the Committee. He would then not be entitled to amnesty on the grounds of non-disclosure."
In the event, the Committee said that in Menera's evidence to the amnesty hearing, he denied that he committed any act which constituted an offence. Refusing him amnesty, the Committee said:
"Amnesty cannot be granted to an applicant when it is alleged that somebody else committed an offence, unless it is on the basis of common purpose. The Applicant himself excludes common purpose."
The effect of the Amnesty Committee's decision was to cut an effective jail sentence of 10 years to one of six years.
The three-person panel comprised Judge Andrew Wilson, Judge Bernard Ngoepe and Advocate Chris de Jager SC.
(THE FULL TEXTS OF THE REASONS FOR DECISIONS ARE AVAILABLE, FROM THE COMMISSION'S OFFICES FOR CAPE TOWN JOURNALISTS, AND BY FAX FOR THOSE OUTSIDE CAPE TOWN.)