DECISION
Joseph Elias Makhura (herein after referred to as "the first applicant")
Frans Ting Ting Masango (herein after referred to as "the second applicant")
Obed masina (herein after referred to as "the third applicant")
Neo Potsane (herein after referred to as "the fourth applicant")
all apply for amnesty in respect of the offence of murder.
The incident which gave rise to all the above applicants, was the killing of one Brigadier Andrew Molope (herein after referred to as "the deceased") in 1986 in Winterveld in the erstwhile Republic of Bophuthatswana. All four of the applicants were involved, in varying degrees, in the killing of the deceased who, according to their evidence, they believed, had allowed himself to be used to undermine the liberation efforts of the African National Congress. They also believed that he was responsible for the suffering in that area at the hands of the police, more particularly for the so-called "Winterveld Massacre" in 1986 when a number of people including children were killed during a march of people protesting against rent hikes. The actual killing of Molope was carried out by the first applicant and one Mandla, whose whereabouts are unknown and who has not applied for the amnesty. The second applicant initially identified the deceased as an appropriate target, and largely did the detailed planning and reconnaissance in connection with the killing, and drove the car in which the assassins were transported, the third applicant assisted in the planning and gave the final order for the killing.
The fourth applicant did no more than to participate in the discussion of the plan and to identify himself with it.
All the applicants testified that at the time of the incident they were members of the African National congress as well as of its military wing Umkhonto We Sizwe. they formed part of a unit of Umkhonto We Sizwe which was deployed particularly for the assassination of persons engaged in the activities on the side "of the oppressive regime of apartheid". The third applicant was the commander of the unit, the second applicant the political commissar. Although no documentary proof of the applicants membership was tendered their evidence was unchallenged and accept as common cause.
Section 20(1) of the Promotion of National Unity and Reconciliation Act No.34 of 1995 (hereinafter referred to as "the Act") provides that the Amnesty Committee shall grant amnesty in respect of an act, omission or offence if:
(a) the application complies with the requirements of the Act;
(b) the act, omission or offence is associated with a political objective in the course of the conflicts of the past in accordance with the provision of subsection (2) and (3) and;
(c) the applicant has made full disclosure of all relevant facts.
The first of these requirements has been satisfied as the applications are correct and therefore comply with the provision of the Act. The other two requirements must be decided on the evidence placed before the Committee.
The applicants aver that their action were performed in furtherance of a political objective associated with the conflicts of the past. they testified that they were all members of the so-called "icing" or assassination unit who were instructed by the late Chris Hani, their commander in chief, to infiltrate the RSA and to assassinate appropriate political opponents. They were not given a list of persons to assassinate but told to concentrate on "sell-outs" and police informers. We accept that the applicants bona fide believed that the elimination of Brigadier Molope, the deceased, would protect the opponents of the then Bophuthatswana government from further suffering and would lower the morale of senior officials of the government and thus contribute to the liberation struggle of the ANC. The applicants' evidence in regard to the political climate in the area in which they were operating at the time was supported by witnesses, a then student leader and activist, one Malose Lehabye. The Committee further accepts that none of the applicants were prompted by any personal malice or derived any personal gain from the killing. The Committee considered the fact that on the evidence of the applicants themselves, supported by the post mortem report, the deceased had died in a hail of bullets. this evidence was considered within the context of section 20(3) of the Act containing certain criteria to be followed by the Committee. the Committee more particularly considered subsection 3(f) "the relationship between the act, omission or offence and the political objective pursued and, in particular, the proportionality of the act, omission or offence to the objective pursued". Given the fact that due care was exercised not to injure other persons and that other persons in the house where the killing took place, were not injured, the Committee is satisfied that the applications of this criteria does not bar the granting of amnesty.
The ground although not explicitly defined on which the relatives of the deceased oppose the applications, is that the applicants did not make a full disclosure of all relevant facts and inter alia that the applicants were protecting a former colleague of the deceased, one Mokubyane. Although it initially seemed to have been based on mere speculation it became clear at a later stage of the proceedings that there existed a general confusion in the minds of the deceased's family members flowing form evidence which had been given in 1992 before a commission of inquiry which was looking into the activities of alleged hit squads and other unlawful acts which Bophuthatswana police were allegedly involved. Apart form the claims by other persons that they were responsible for the killing of the deceased, there were also other rumours. The deceased's wife was a suspect and his children also believed that the said Mr Mokubyane, had assisted the applicants. The information about he conflicting claims was ascertained from press cuttings handed in at a late stage of the hearing as Exhibits "A" and "B" which were reports on the proceedings of the commission inquiry. Exhibit "A" was undated and Exhibit B was dates 17th of September 1992 (news item in "The Sowetan"). Mr Makoboyane also testified and his testimony was that he was not involved in anyway in the killing. There was no evidence placed before us to gainsay this.
The Committee is of the opinion that the conflicting claims and perceptions as to who was responsible for the killing of the deceased was created by the actions of various role players in the political power struggle at the time and that there is no reason not to accept that the applicants have made a full disclosure of their respective active participation and/or involvement in the planning of the assassination. Each of them candidly confessed their individual roles. It would defy all logic to think that the applicants would make themselves vulnerable at this stage of the country's political history by applying for amnesty for such a serious crime, if they were not in fact the real perpetrators. On the evidence of the fourth applicant as confirmed by his co-applicants whose evidence stand uncontroverted, his role came to no more than complicity in a conspiracy to assassinate the deceased. Had the fourth applicant been charged with murder he would, in our opinion, not have been convicted as a co-perpetrator but only as an accessory before the fact.
There were certain minor discrepancies in the evidence if the applicants which can in our opinion be attributed to the lapse of time from the time of the killing to the date of the hearing of the amnesty applications. We do not, however, consider such discrepancies material to the requirement of full disclosure.
In the result:
(a) the amnesty applications of Joseph Elias Makhura, Frans Ting Ting Masango and Obed Maina in respect of the murder of Brigadier Andrew Malope in August 1986 are GRANTED;
(b) amnesty is GRANTED to Neo Potsane for his participation in a conspiracy to murder the said Andrew Malope.
The Amnesty Committee is of the opinion that the persons listed below are victims in relation to the incidents and they are accordingly referred to the Committee on Reparation and Rehabilitation in terms of Section 22(1) of the Act.
Gadifele Sinah Molope : Wife
Chalane Gideon Molope : Son
Lydia Morongwa Maphule Molope : Daughter
Lentheng Violet Keetse (Molope) : Daughter
All of : 292 Unit D, Mabopane
SIGNED ON THIS THE 7TH DAY OF SEPTEMBER 1998.
JUDGE S MILLER
ADV NJ MOTATA
ADV F BOSMAN
ADV S SIGODI
