Issued by: Truth and Reconciliation Commission
September 2, 1997 (The following summary 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 Amnesty Committee of the Truth and Reconciliation Commission has refused amnesty to 12 Mdantsane residents responsible for killing four alleged gang members by burning them.
The applicants are serving terms of imprisonment ranging from 10 to 23 years after being convicted of murdering four alleged members of the "Killer Boys" gang, and attempting to murder a fifth person, in Mdantsane in February 1987.
The applicants were: Bonakele Horatius Jwambi, 48; Luyanda Kana, 34; Mzwabantu Patrick Katsikatsi, 33; Mseki Mbusi, 38; Bangikhaya Petros, 27; Xolile Edgar Nkukwana, 30; Mandlenkosi Jabavu, 35; Mbuyiselo Klaas, 29; Raymond Monwabisi Kana, 39; Mabongo Jamela, 33; Thando Kana, 31; and Soyiso Zuzani, 30.
They murdered Mr Folie Bushula, Mr Mpumelelo Mbinqo, Mr Mkhuseli Yellem and Mr Archie Booi Swartland. They were sentenced in the Bisho Supreme Court on June 6, 1989.
The Amnesty Committee panel which heard the application - during sittings in July and November last year - comprised Judge Andrew Wilson, Judge Bernard Ngoepe, Adv. Chris de Jager SC and Ms Sisi Khampepe.
After reviewing the evidence of the applicants, the Committee made its findings as follows:
"FINDINGS
"It will be seen that all the applicants, when explaining in their applications their justification for regarding the murders as acts associated with a political objective, stated that the 'Killer Boys' were terrorising the residents by stabbing them with knives and pangas, hacking them with axes, raping the womenfolk and generally destabilising the community. Although the applicants alluded to the fact that the 'Killer Boys' were perceived to be collaborating with the police, they were unable to provide any reasonable grounds on which their perceptions were based. They also stated that they did not intend that anyone should die. When asked if the acts were committed in the execution of an order of, or on behalf of, or with the approval of the liberation movement they said yes and when asked to give particulars of the order or approval they replied:
"'Body - community at large came to an agreement after many cases were reported to police several times without response. This brought anger to the victims of families who were terrorised and raped by the gangsters know as the 'Killer Boys'.'
"In the affidavits made by them they all stated they were members of the street committee of the Mdantsane Residents' Association which became an affiliate of the United Democratic Front, the internal wing of the African National Congress. Although in their affidavits they stated there was no direct order from the African National Congress that the deceased must be killed and that the decision was taken by the residents of NU1 and the street committee, none of the applicants who gave evidence spoke of any such decision by the street committee. On the contrary, they said the decision was to get hold of members of the gang, to beat them and then to hand them over to the police.
"Their version was that the street committee decided the members of the 'Killer Boys' should be fetched from their homes, taken to House No. 1106 and then to the scrap yard where they would be beaten before being handed over to the police. It was only after members of the public, in large numbers, joined them and after a fire had been lit to provide light that a demand was made that the 'Killer Boys' should be burnt. It appears from the evidence that this was because members of the community felt that the stabbing of Mkhuseli Jwambi (a member of the Youth Brigade of the Street Committee) at the shebeen was the last straw.
"Only two of the applicants admitted taking part in the killing of the deceased. These were the Second and Eleventh Applicants (L Kana and M Kana). The Second Applicant said he decided to abide the decision of the people and burn the deceased - the people's anger was beyond control. The Eleventh Applicant said the people started shouting that the deceased should be burnt and after Jamela pulled Bushula from the fire he assisted in putting Mbinqo on the fire. The reason why they were burnt was that members of the committee with the residents of the section were fed up with them and the deeds they were committing - the evil criminal deed they had committed. He later made it clear that it was the community members who said they should kill them. The anger of the crowd was beyond control.
"Some of the applicants, such as the First, Sixth and Tenth Applicants (Jwambi, Nkukwana and Jamela) said they tried to prevent the burning. Others of the Applicants admitted having been present but denied or made no admission of any participation in the killings. These included the Fourth, the Fifth, the Ninth and Twelfth Applicants (Mbusi, Petros, M Kana and Zuzani). The remaining applicants denied having been present during burnings; they had either gone home or arrived after them. These consisted of the Third, Seventh and the Eighth Applicants (Katsikatsi, Jakavu and Klaas).
"For the applicants to succeed in their application they must satisfy us that the act, that is the burning of the deceased, is an act associated with a political objective (Section 20(1)(b) and was an act committed by a person falling within the definition of Section 20(2)(a), (d) or (f) and in deciding whether this is so we have had regard to the criteria in Section 20(3).
"On the evidence before us we do not accept that the killing of the deceased, in the circumstances existing, were acts associated with a political objective or were committed on behalf of any liberation movement within the course and scope of any express or implied authority. Nor do we believe that the applicants believed, on reasonable grounds, that they were acting within such authority. The acts did not occur in the course of a political disturbance, the object of the killings was to take revenge against the members of the gang and they were committed out of enmity against them. This is confirmed by the method used to kill these gang members.
"In these circumstances the applicants are not entitled to amnesty in terms of the Act. The Amnesty Applications of the twelve Applicants are accordingly refused."