Amnesty Hearings — Johannesburg — 1999-02-09

CHAIRPERSON: We are going to commence our proceedings today by pronouncing our decision in respect of the application in respect of Mr Gladwell Selahle that we heard yesterday.  The application by Mr Selahle was in terms of Section 18 of our Act and it was in relation to the murder of Joseph Mkhanela committed on the 16th March 1994 at the corner of Roets Drive and Moagi Street in Vosloorus.  We have been advised by the evidence leader that a Section 19.4 notice was served on one Christopher Mkhanela who is the brother of the deceased and that Mr Mkhanela on accepting delivery of that notice did not object to short notice and intimated that he would be present during the hearing of Mr Selahle's application.  Unfortunately it would appear that he did not turn up when this application was heard yesterday.
	The applicant gave vive voce evidence and alleged that he was a member of the self defence unit and had been such a member since 1992 after he was recruited by an MK operative by the name of Samuel Mabuja.  He stated that Mabuja became a commander of their unit but passed away on the 27th December 1993.  It was not crystal clear whether Joseph Letlagelo took over the command of the unit after Mabuja's death.  Whilst the applicant indicated that Letlagelo assumed command of the unit after Mabuja's death, it was not clear why as a commander he did not command the operation that led to the killing of Mr Mkhanela.  We may at this point tangentially mention that the applicant's testimony was not given in an orderly and comprehensible manner.  In fact even the applicant's lawyer considered that the applicant's evidence was haphazardly given.  We have not, however, found that this was because the applicant was a dishonest witness but attribute such haphazardness to the manner in which his lawyer sought to lead his evidence in chief.   We ourselves were at times not clear what kind of evidence was sought to be solicited from the questions put to the applicant by his legal representative.
	The applicant further testified that on the 25th January 1994, whilst he and some of his unit members had gone to Vosloorus Hostel to purchase ammunition from the person who was known by a member of the PAC whose name was Paul and that as they were leaving the hostel they came across three men armed with AK47's who were running into the hostel.  They then went towards the direction from which they had heard the sound of gunfire as they were leaving the hostel.  On arrival at the scene they were advised by the bystanders there at that the shooting had been committed by persons who were dressed amongst others in overalls and armed with AK47's.  The applicant then recalled that the persons he had seen running into the hostel armed with AK47's matched the description given by the bystanders and from that he deduced and believed that those persons were responsible for the taxi shooting that resulted in the deaths of six persons and several other passengers sustaining injuries.  It was after this incident that their unit decided to look for the three persons with a view of eliminating them in order to protect the community from any repetition of possible attack by those persons.
	He averred that this time the township was engulfed in violence with persons staying in hostels fighting the residents in the township and that it was their primary duty as SDU members to defend the community from such attacks.  Significantly, all ANC members that had prior to the height of violence stayed at these hostels had moved out of those hostels because of the conflict and those that had remained and continue to reside at the hostels were perceived to be IFP members and or supporters and were perceived to be hostile to the residents.  When he saw the three men with AK47's run into the hostel, he therefore connected these persons with the IFP.  It is common cause that during this period there was a deep conflict between the members of the IFP and the ANC in the East Rand and Vosloorus was no exception to this conflict.  The whole of East Rand was engulfed in violence that resulted in casualties being suffered by both organisations namely the IFP and the ANC and from the ANC side the SDU's were central in the acts that were launched against the hostel dwellers who were perceived to be IFP members and/or supporters.  
	The applicant further testified that sometime later one of his unit members by the name of Titus identified Mr Mkhanela as being one of the persons they had seen on the 25th January running into the hostel and carrying AK47 and with this information they decided to investigate the car they had seen him driving when he was from an unnamed factory in an industrial area around Vosloorus.  As to what subsequently happened to those investigations it is unclear as no evidence was given in respect thereof.  Be that as it may, Mr Mkhanela was again identified on the 16th March 1994 at the corner of Roets Drive and Moagi Street in Vosloorus by the applicants and his comrades when they were returning from a rally.  It was then decided that they should kill Mr Mkhanela and then they devised a plan to detract the attention of Mr Mkhanela by sending the applicant to go and ask for a change of a R50 note.  Whilst the deceased was innocently attending to the applicant's request for change, one Peter Siani came and shot the deceased at close range.  The applicant was arrested immediately thereafter.  It was put to the applicant that his application form had made no reference to Peter Siani shooting the deceased during the incident in question and his response that it was that he did not know that he had to provide these details in his application form as he was not given any legal assistance when completing the application form.  In fact he conceded that some of the questions on the application form he could not be able to complete himself and he had to rely on the assistance of his inmate in particular one Skinanda to come to his rescue in the final completion of his application form.  
	This is one of several such applications which brings to focus the profound importance of applicants being legally assisted in completing their application forms as they have no access to lawyers of any kind while in prison and are compelled by circumstances to rely on other inmates for such important assistance.  This Committee is aware that even though it has prescribed regulations providing that the commanders should facilitate the acquisition of lawyers when so requested by applicants to assist applicants who are in custody in the completion of application forms.  This would appear not to have been complied with by prison authorities.  We therefore shall not take a robust view on the glaring lack of detail about the incident in his application form and will only rely on his vive voce evidence.  We however hope that this problem will be immediately addressed as it is likely to delay the work of this Committee whose lifespan is too short to accommodate protracted proceedings caused by improperly completed and incomprehensible application forms coming before the Amnesty Committee during a public hearing.  
	What remains to be conceded by this Committee is whether the applicant was indeed a member of the SDU at the time when he committed this murder and whether Mr Mkhanela could have been reasonably perceived by the applicant to have been a member or supporter of the IFP or whether he in fact stayed or visited the hostel in question at all.  This is the kind of information that would have been elicited by our investigative unit during it's investigation of the application as they're required to do so by the Act.
	Alarmingly and unfortunately no such information has been placed before this Committee and in the absence of such information the applicant's version remains incontrovertible, namely that he was a member of the SDU and committed the offence for which he seeks amnesty as an SDU member that he bona fide believed Mr Mkhanela to have been an enemy of his community as he was allegedly seen running into the hostel after the taxi shooting which was conveying township passengers and therefore bona fide believed that by killing him, he was protecting his community from further attacks by the hostel dwellers in Vosloorus against whom the SDU's were directing their attacks at the time in question.
	In the premises, the applicant is hereby GRANTED AMNESTY or the murder of Mr Mkhanela on the 16th March 1994 at the corner of Roets Drive and Moagi Street in Vosloorus.  Thank you.
	And it is also the opinion of this Committee that the relatives of the deceased Joseph Mkhanela are victims as defined in the Act and accordingly referred to the Committee on reparation and rehabilitation for consideration as such in terms in terms of Section 26 of the Act.
	Mr Mohlaba, that is our decision and would request you to convey it to Mr Selahle.  I believe Mr Selahle is here, there was no need for Mr Selahle to be here when we pronounce our decision, however Mr Selahle has now personal knowledge of our decision.  This decision will be forwarded to our office in Cape Town without delay.