DECISION
The applicants in the above applications applied for amnesty in respect of the murder of two policemen and an informer in a fire-arm attack in Zwide Township, Port Elizabeth on the 18th of November 1990, the attempted murder of four policemen in a fire-arm attack on a police vehicle and its occupants, also in Zwide Township on the 26th of December 1990 and the theft of 6 motor vehicles during the period of the 15th of November 1990 to the 24th of December 1990. Both applicants were convicted of all these offences and sentenced in the South Eastern Cape Local Division on the 20th of September 1991. The death sentence was imposed for the three murders but was later commuted to life imprisonment. Kwanele Msizi (hereinafter referred to as the first applicant) has several previous convictions, three of which were for motor vehicle theft and Phakamile Cishe (hereinafter referred to as the second applicant) has none. The three motor vehicle thefts committed by the first applicant took place prior to the incidents forming part of the subject matter in the present applications.
The victims oppose both applications.
Both applicants, on various dates, submitted three separate application forms to the TRC. All the forms were submitted timeously as required by Section 18 of the Promotion of National Unity and Reconciliation Act of 1995 (hereinafter referred to as the Act).
The discrepancies and contradictions in these forms impact directly on the credibility of the applicants, which in turn impact substantially on the questions of political objective and full disclosure which are requirements for amnesty in terms of the Act. It is appropriate at this juncture to deal briefly with the discrepancies and contradictions in the various application forms which the Committee regard as material.
The first applicant filled out his initial application form (in Xhosa) dated the 2nd of May 1996, of which an English translation appears in the bundle of documents prepared for the hearing. There was some difficulties regarding the translated version during the hearing but nothing of substance emerged. Subsequently he signed another form, type-written in English, bearing the date the 13th of December 1996 and finally, submitted a third form also filled out in English, dated the 23rd of February 1997. He indicated during his evidence at the hearing that the latter application form had been completed with the assistance of his legal representative, the former with the assistance of a PAC official, one Michael Xashimba (?) and the initial one in Xhosa by himself. In the first or initial application he applied for amnesty only in regard to the three murders and four attempted murders. In the form dated the 13th of December 1996 he again stated that he was seeking for the three murders and the four attempted murders, whilst in the form dated the 23rd of February 1997 he indicated that he was applying for amnesty in respect of "car theft, attempted murder and murder" and further stated that 6 cars were stolen. At the hearing, through his legal representative, he confirmed that he was applying for amnesty in respect of the theft of six cars in accordance with the convictions in the criminal trial. Later he only admitted to involvement in the theft of one car and, finally, again through his legal representative he indicated that he would only apply for amnesty in respect of the theft of three cars.
The second applicant, likewise, submitted three application forms. In the first, also in Xhosa, dated the 2nd of May 1996, of which an English translation was also included in the bundle prepared for the hearing, he applies for amnesty in respect of the "killing and shooting of government officers on the 18th of November 1990 and on the 26th of December 1990" which clearly refer to the three murders and four attempted murders of which he was convicted. In a subsequent application, bearing the date April 1996, he once again refers to the incidents of the 18th of November 1990 and the 26th of December 1990 but once again makes no mention of car theft. Finally in an application dated the 23rd of February 1997 he states that he is seeking amnesty in respect of car theft, attempted murder and murder. He states that 6 cars were stolen. As in the case of the first applicant he had filled out the first form himself, the second one with the help of the same PAC official who assisted the first applicant and the third with the assistance of his legal representative. He also, after lengthy cross-examination at the hearing, denied having been involved in the all the car thefts and admitted only to having been involved in the theft of three cars.
As to the question whether the applicants had acted on orders, discrepancies and contradictions also abound. Each one of the applicants in the initial applications states that no order was issued. In the second set of applications the first applicant does not explicitly state that any order was issued but refers in general and rather vague terms to the PAC and APLA whilst the second applicant emphatically states "There were no orders!" In the third and final applications submitted to the Committee, dated the 23rd of February 1997 both applicants, for the first time, state "It was an order from C de Jabu Mdunge of Thembisa." We shall later revert to the above discrepancies and contradictions which the applicants could not explain at the hearing, to the satisfaction of the Committee.
The legal representatives for both applicants and victims presented oral argument at the hearing on the 16th of October 1998. The victims, as did the Committee, accepted that the applicants were PAC supporters. The Committee, however, finds that on the basis of the contradictions and discrepancies set out earlier and on the basis of the probabilities that the applicants were not members of APLA nor did they act on the orders of APLA. We base this on the following which renders their evidence untrue in material respects.
1. Both applicants allege that they had undergone six months training as APLA soldiers at Sterkspruit. Despite the fact that they allegedly stayed in a training camp and were trained with others, they were both unable to furnish the names of any of their co-trainees. The best they could do was to come up with the names of one or two high profile APLA military officials.
2. The second applicant admits that he had never heard of the APLA code of conduct and that neither he nor his co-applicant had ever been given a code name.
3. Both applicants state that they did not live with their alleged unit commander and cadre at the hide-out in the scrap yard. They lived with their parents.
4. The second applicant states that he was instructed by his unit commander that, should he be arrested he should tell the police that they were living in the scrap-yard so as to enable them to kill a large number of police. This the Committee finds highly improbable and bordering on the ridiculous.
The Committee is mindful of the fact that even if the applicants were not APLA soldiers, they could be granted amnesty on the basis of Section 20(2)(a) of the Act in that they committed the offence as PAC supporters in the furtherance of the political struggle waged by the organisation or movement against the state. This was, however, never the basis on which the applicants presented their case.
Furthermore, the Committee has serious doubts as to whether this was in fact so and inclines towards the argument put forward on behalf of the victims that the acts were committed to further the applicants' criminal activities. The two deceased comrades may well have been involved for political reasons, but the probabilities weigh in favour of a finding that the applicants involvement was for personal gain.
The fact that the applicants tried to mislead the Committee into believing that :
1. they were trained APLA soldiers;
2. that they had acted under orders of APLA;
3. that they believed the alleged informer to have been a policeman;
4. that they had abandoned the stolen cars in their quest to find policemen to shoot;
5. that they did not know who Elliot, on whose testimony they were convicted at the criminal trial, was and
6. on the basis of the numerous other obvious inconsistencies in their application forms and evidence which they could not satisfactorily explain, the Committee finds that the applicants did not make a full disclosure of the relevant facts as required by the Act.
The applications for amnesty in respect of all three murders, four attempted murders and six car thefts, as set out in this decision, are accordingly
REFUSED: .
SIGNED ON THE 14 DAY OF DECEMBER 1998.
JUDGE S. MILLER
ADV. F. BOSMAN
MR. I. LAX
DR. W.M. TSOTSI
