TRUTH AND RECONCILIATION COMMISSION
APPLICATION IN TERMS OF SECTION 18 OF THE PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT, NO.34 OF 1995.
VUSUMZI SAMUEL NTAMO 1ST APPLICANT
NTOBEKO AMBROSE PENI 2ND APPLICANT
EASY MZIKHONA NOFEMELA 3RD APPLICANT
MONGEZI CHRISTOPHER MANQINA 4TH APPLICANT
The Applicants were convicted and sentenced to imprisonment for 18 years for the murder of Amy Biehl. One of them, Vusumuzi Ntamo, was also convicted for the crime of Public violence, for which his sentence of imprisonment was ordered to run concurrently with the sentence on the charge of murder. The offence was committed on the NY1 Road in the Gugulethu Township, in Cape Town on the 25th August 1993. The applicants are young men whose ages, at the time of the commission of the offence ranged between 18 and 22 years. Except for Ntamo, whose education had not progressed beyond Std 4, the others were high school students.
They have applied for amnesty in terms of section 18 of the Promotion of National Unity and Reconciliation Act No.34 of 1995.
Amy Biehl their victim was an American Citizen. She was on a Fullbright Scholarship and was affiliated to the Community Law Centre at the University of the Western Cape where she was pursuing her studies for a Ph.D in Political Science. On that fateful afternoon, she was conveying three colleagues in her car. She was on her way to drop some of them off in Gugulethu, when her vehicle came under attack by people who were running towards it and throwing stones at it. The stones smashed the windscreen and windows of the car. One of the stones hit Amy Biehl on her head, causing her to bleed profusely. She could not continue driving. She got out of her car and ran towards a garage across the road. Her attackers did not relent. They pursued her and continued throwing stones at her. Manqina tripped her, causing her to fall. She was surrounded by between 7 and 10 people and while she was being stoned, one of her attackers stabbed her. She died as a result of the injuries they inflicted on her.
According to the evidence of the applicants they were among those who were involved in the attack on Amy Biehl. Peni admitted throwing stones at his victim when he was three to four metres from her. Manqina stabbed her with a knife in addition to throwing stones at her. Nofemela threw stones at her and stabbed at her 3 or 4 times. Ntamo threw many stones at her head when he was only a metre away. they stopped attacking her when the police arrived on the scene.
The attack on the car driven by Amy Biehl was one of many incidents of general lawlessness in NY1 that afternoon. Bands of toy toying youths threw stones at delivery vehicles and cars driven by white people. One delivery vehicle was toppled over and set alight and only arrival of the police prevented more damage. There was evidence that some of the possession of Amy Biehl and the passengers in her car were stolen by some of the youths.
The applicants explained their behaviour by saying that earlier that day they had attended a meeting at the Langa High School where a Pan African Student organisation (PASO) unit was relaunched. Peni was elected Chairperson at the meeting. Manqina was Vice Chairperson of the PASO unit at the Gugulethu Comprehensive School and Nofemela was a PASO organiser at the Joe Slovo High School.
The meeting was addressed by Simpiwe Mfengu, the Regional Secretary of PASO, Wanda Madubula the Regional Chairperson of PASO, and many other speakers.
The applicants said that speakers dealt with:
- the strike by Teachers in the Western Cape who demanded recognition for the South African Democratic Teachers Union (SADTU).
- the struggles of the Azanian Peoples Liberation Army (APLA) for the return of the land to the African People.
- APLA had declared 1993 as the "Year of the Great Storm". Reference was also made to the launching of "OPERATION BARCELONA" to stop all deliveries into the townships.
The speakers urged the members of PASO to take an active part in the struggle of APLA by assisting APLA operators on the ground making the country ungovernable.
The speeches were militant and punctuated by shouting the slogan "ONE SETTLER ONE BULLET".
Applicants said that they were all inspired by the speakers to such an extent that they left the meeting with many others in a militant mood. They marched through the township toy toying and shouting ONE SETTLER ONE BULLET, determined to put into effect what they had been urged to do. This is how they got involved in the activities briefly described above which led to the killing of Amy Biehl.
Referring to this unfortunate incident; the PAC in their representation to the Truth and Reconciliation Commission said:-
"On the Amy Biehl issue, we wish to state that PASO was not a part of APLA. They are a component part of the PAC not involved in armed struggle. This act occurred in the context of a strike for recognition by South African democratic teachers Union (SADTU) in the Western Cape. To support the strike, Operation Barcelona was launched to stop deliveries from towns into the townships. Although the PAC was not involved, PASO acted in solidarity with their teachers and with COSAS. They wrongly targeted and killed Amy Biehl. We expressed our regret and condolences to Amy Biehl's family in a letter to the United States Ambassador. We restate this position yet again through the TRC. But misguided as the deed was, we support the amnesty applications of all those convicted and sentenced for the offence".
Although they did not act on the orders or instructions of APLA or PAC on that day, they believed they owed loyalty to the same cause.
Nofemela and Peni had attended some lectures on political matters given by APLA operators and had received elementary lessons on the handling of arms and ammunition, they were not members of APLA.
As members of PASO, which was a known political organisation of students, they were active supporters of the PAC and subscribed to its political philosophy and its policies. By stoning company delivery vehicles and thereby making it difficult for deliveries into the townships, they were taking part in a political disturbance and contributing towards making their area ungovernable. To that extent, their activities were aimed at supporting the liberation struggle against the State. But Amy Biehl was a private citizen, and the question is why was she killed during this disturbance. Part of the answer may be that her attackers were so aroused and incited, that they lost control of themselves and got caught up in a frenzy of violence. One of the applicants said during his evidence that they all submitted to the slogan of ONE SETTLER, ONE BULLET. To them that meant that every white person was an enemy of the Black people. At that moment to them, Amy Biehl, was a representative of the white community. They believed that by killing civilian whited, APLA was sending a serious political message to the government of the day. By intensifying such activity the political pressure on the government would increase to such an extent that it would demoralise them and compel them to hand over political power to the majority of the people of South Africa.
When the conduct of the applicants is viewed in that light, it must be accepted that their crime was related to a political objective.
The PAC regarded the killing of Amy Biehl as a mistake committed by young people who were misguided. They nevertheless supported the application for Amnesty.
The parents of Amy Biehl had come from America to attend the hearing. At the conclusion of the evidence Mr Biehl addressed the Amnesty Committee.
Part of his speech reads as follows:-
"Now in closing a few comments. We have the highest respect for your Truth and Reconciliation Commission and process. We recognise that if this process had not been a pre-negotiated condition your democratic free elections could not possibly have occurred. Therefore, and believing as Amy did in the absolute importance of those democratic election occurring we unabashedly support the process which we recognise to be unprecedented in contemporary human history.
At the same time we say to you it's your process, not ours. We cannot, therefore, oppose amnesty if it is granted on the merits. In the truest sense it is for the community of South Africa to forgive its own and this has its basis in traditions of ubuntu and other principles of human dignity. Amnesty is not clearly for Linda and Peter Biehl to grant.
You face a challenging and extraordinarily difficult decision. How do you value a committed life? What value do you place on Amy and her legacy in South Africa? How do you exercise responsibility to the community in granting forgiveness i the granting of amnesty? How are we preparing prisoners, such as these young men before us, to re-enter the community as a benefit to the community, acknowledging that the vast majority of South Africa's prisoners are under 30 years of age? Acknowledging as we do that there's massive unemployment in the marginalised community; acknowledging that the recidivism rate is roughly 95%. So how do we, as friends, link arms and do something? There are clear needs for prisoners rehabilitation i our country as well as here. There are clear needs for literacy training and education, and there are clear needs for the development of targeted job skill training. We, as the Amy Biehl Foundation are willing to do our part as catalysts for social progress. All anyone need do is ask.
Are you, the community of South Africa, prepared to do your part?"
The applicants have made full disclosure of all the relevant facts as required by section 20 (1) of the Act. On a consideration of all the evidence placed before us, we have come to the conclusion that they be GRANTED amnesty for the murder of Amy Biehl and the crime of public Violence arising from the stoning and damaging of vehicles on the 25th August 1993.
SIGNED ON THIS THE 28TH DAY OF JULY 1998.
ADV C DE JAGER SC
MRS S KHAMPEPE
C.D DE JAGER SC:
I agree with the conclusion reached and the reasons set out. I would however wish to add the following:
It is true that the applicants did not receive orders to carry out the murder. It also never was the policy of the PAC to kill foreign citizens visiting South Africa. They targeted the "Settlers" in the country as their enemy.
The PAC in their submission to the TRC submitted that it was a mistake, that they wrongly targeted and killed Amy Biehl. They add however that misguided as the deed was, they supported the amnesty application. The latter sentence may not constitute an express approval but may be condonation of the offence. I am ignoring what they might have said at the time of the event, because I am aware that the political parties and organisations might have denied any involvement in an incident and would even disapprove of a deed because they might have considered it at the time strategically correct and politically wise to deny any knowledge or any involvement.
It is however, not a prerequisite for amnesty that the offence should fall within the category set out Section 20(3) (f) of the Act. The committee often pointed out in previous decisions that Section 20(3) provides criteria or guidelines to assist the committee to decide whether an act is associated with a political motive or not. The provisions are criteria and not requirements or preconditions that must be complied with. In applying the criteria the provisions of Section 20(4) should also be taken into consideration.
In the present applications I conclude that although no order was issued the murder was associated with a political objective. I am therefore satisfied that the requirements of Section 20(1) of Act 34 of 1995 have been complied with.
SIGNED ON THIS THE 28TH DAY OF JULY 1998.
ADV CD DE JAGER SC