Amnesty Hearings — Durban — 1998-10-23

CHAIRPERSON: ... and then we will follow it with the application of Mr Ntuli.  Mr Mchunu?

MR MCHUNU: Thank you Mr Chairman and members of the Committee, the applicant herein seeks amnesty in respect of acts committed between the dates in 1990 to 1993.
	I will list the incidents as follows:  An aborted attempt to assassinate Mr Matthew Phosa, which goes only as far as a conspiracy which never went beyond just a conspiracy.  Two, an assault of Mr Cele, a school teacher.  Three, an attack on young men at Nombete.  Four, an attack on plus minus seven males at Mona Lisa.  Five, an attack on taxi owner which can only be said to be attempted murder, and a killing of an unknown person at Songombo.
	The first incident or act which I have referred to as an act of attempt to murder or to assassinate Mr Matthew Phosa, on that act, it does appear very, very clearly from the facts, that the applicant had during his time in 1990 whilst he was in Barberton town prison,  associated, or had associated himself with the IFP and had been working in close association with prison warders who had proclaimed themselves to be members of the AWB.
	He therefore, in the performance of this act which came to nothing at the end, acted within the direct instructions of those he held in high esteem.  As I said who proclaimed themselves to be members of the AWB, without expectation of any gain whatsoever, despite the fact that there is evidence to the effect that there was a reward which was never explained, what type of reward it was.
	But be that as it may, the applicant reconciled himself with those instructions, and clearly the applicant in his evidence too, did state quite categorically that in answer to a number of questions posed to him, whether he would have done, he would have committed the act, he would have killed Mr Phosa, his answer was in the affirmative, whether or not there was any reward, placed on the head of Mr Matthew Phosa.
	This Chairperson, I believe is also covered by the provisions of Section 20(3)(e), of the Act, in that those are acts committed under direct instructions.  If I may  just read the provisions of the Act quickly, the relevant provisions of the Act - whether the act, omission or offence was committed in the execution of an order of or on behalf of, or with the approval of the organisation, institution, liberation movement or body of which the person who committed the act, was a member, an agent or a supporter.
	This is supposed to define an act associated with a political objective.  Without any further waste of time Chairperson, I will go straight to the next act, that is the next incident.
	The incident relating to the assault on Mr Cele, the school teacher.  It does appear also from the evidence of the applicant, that the applicant on joining the IFP when he was at Ndwedwe, became a member of the IFP, not only became a member of the IFP, but also became a bodyguard of Mr Mfayela.
	When he saw a fight breaking out between Mr Mfayela and Mr Cele, he saw it fit as a bodyguard, to execute his duties, to fight against a person who was fighting against his leader, and two, he was also acting under the direct instructions of Mr Mfayela to assault Mr Cele.
	Incident number three and four, are similar.  They are quite similar in that in both incidents, the applicant and Mr Mfayela were in a car and that includes also incident number six as well.  I will refer to them as follows:  Incident number three and four relates to the incident of the shooting of men found in the street, and incident number six, relates to the killing of an unknown person, also found in the street.
	Both, or all these three incidents, it does appear that the applicant was in the company of a superior or of other people he regarded as his own comrades, and in execution of a mission which was tabled or which was agreed upon between the members or was the instructions, the direct instructions of the leader.
	I believe that this is also covered by the provisions which I have already elaborated on, which I have already covered, which I have already read before this Committee.
	Incident number five, that is the assault, that is the attack on the taxi owner, which I have said, can only be said to be an attempted murder, because it also has appeared that Mr Cele died subsequently, as a result of something else, other than ...

MR LAX: You mean Mr Gumedi, sorry?  You have said Cele?

CHAIRPERSON: Mr Gumedi yes.  That was put on that he died of natural causes, not as a direct result of any injuries that he may have sustained in the attack described by the applicant.

MR MCHUNU: I am highly indebted for the correction, thank you very much.  Mr Gumedi, actually yes.   The taxi owner, Mr Gumedi, was seen by the applicant and his comrades at that time, as a person who was working in close association with the members of an enemy organisation.
	In fact he was labelled at that time, as a transporter of comrades, of people belonging to the ANC, and therefore he was as the applicant has also elaborated in the background, that this was also agreed upon in a discussion as one of the people targeted to be killed, to be eliminated.
	It is clear from the evidence of the applicant in all these incidents, particularly in the incidents relating to his stay at Ndwedwe and the acts committed during that time, that the applicant did not act for any specific gain.  He has also explained that at many instances, or in instances which can be counted to two or three, he did receive payment, but which was only, which only served as pocket money.

CHAIRPERSON: Yes, I think it is from the evidence of the applicant in any event, the payment that he received was more in the form of subsistence payment rather than reward for specific jobs done.

MR MCHUNU: Thank you very much.  It is on that basis Mr Chairman, and members of the Committee, that I believe that the applicant has been able to satisfy the requirements of the Act in that, the basic requirements of the Act, in that (1) the applicant did indeed act for a political objective, (2) that the applicant has made a full disclosure of all relevant acts.  Let me just explain just briefly to that.
	The provisions of Section 20(1)(b) and (c), (c) in particular, states that the applicant has made a full disclosure of all relevant facts, and all relevant facts here means relevant, acts relevant to his application.  Any other acts, would in my mind be peripheral, it would no longer really matter, whether or not he did disclose them, but in any event, the applicant did state during his testimony that, he is willing to disclose any other acts, but then he cannot because his application is grounded on the acts which he has disclosed before this Commission.
	On the basis of that Chairperson, I ask that the applicant be granted amnesty.

MR LAX: Mr Mchunu, just so that I can be clear in my own mind.  You have mentioned five specific incidents, and you have described them as follows:  the aborted attempt to assassinate Mr Phosa.

MR MCHUNU: Six actually.

MR LAX: Correct.  The assault of Mr Cele, the young men at Nombete, Mona Lisa, that is three and four, the attack on the taxi driver and the killing of this unknown person.
	In your client's evidence, he dealt with the conspiracy to kill Cele subsequently.  Is he not applying for amnesty for that and having been part of that?

MR MCHUNU: Chairperson, I think that was, I believe, just an omission on my part.  That was also explained in his evidence, that there was such a conspiracy.  Even though he did not participate in the act or the murder of Mr Cele, at the end, but it also did appear that Mr Cele was finally killed, he was finally murdered.
	But he also did participate in the act of conspiring against Mr Cele.