Decisions

DECISION

Jeffrey Thamsanqa Radebe (hereinafter referred to as "the 1st Applicant"), Ian Munro Phillips (hereinafter referred to as "the 2nd Applicant") and Sipho Joel Daniel Sithole (hereinafter referred to as "the 3rd Applicant") all apply for amnesty in respect of the roles played by themselves in the establishment of Self Defence Units (SDU's) in KwaZulu Natal during the period 1990 to 1994, particularly in regard to the unlawful procurement and distribution of weapons.

In addition, the 1st Applicant applies for amnesty in respect of being a member of a then unlawful organisation, namely, the African National Congress (the ANC) and undergoing military training, for which he was charged, convicted and sentenced to undergo six years imprisonment during 1986. The 3rd Applicant also applies for amnesty for a shooting incident during 1984 at Ngwelezane in Northern KwaZulu Natal.

The 1st Applicant has been a member of the ANC and the South African Communist Party (the SACP) since 1976. He left the country for political reasons and while abroad underwent military training. He was arrested and almost immediately after his return to the country in 1986 and was charged and convicted of contravening certain provisions of the Internal Security Act. It is abundantly clear that the offences he was convicted of were of a political nature which fall under the provisions of Section 20 (1)(b) of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 (the Act).

The 3rd Applicant has been a member of the ANC since 1982. During September 1984 he was a teacher at Amangwe High School near Empangeni, his employer being the KwaZulu Government. He was also at that time actively involved in ANC matters particularly in regard to setting up structures within the United Democratic Front (the UDF). His political activities became known to colleagues and members of his school committee, who were supporters of Inkatha, and he was summoned to attend a meeting at Ngwelezane. During the course of the meeting a large crown of people, many of whom were armed, gathered outside the building where the meeting was being held.

The 3rd Applicant believed that he was about to be attacked. He fled from the building and fired two shots into the air in order to disperse the crowd. He managed to escape and then fled the country. The shots fired by the 3rd Applicant did not cause any injury or damage.

We are satisfied that the 3rd Applicant has made full disclosure in relation to this incident and that the acts committed by him as briefly described above were "acts associated with a political objective committed in the course of the conflicts of the past" as contemplated in Section 20(1)(b) of the Act.

During the period 1991 to 1994 all three applicants were senior members of the ANC who held office in the Southern natal Region of the ANC. The 1st Applicant was, during 1991, the deputy chairman and thereafter the chairman of the ANC Regional Executive Committee, the 2nd Applicant was a member of such Committee until and including 1992 and was thereafter a member of the SACP Provincial Executive Committee and the 3rd Applicant was also a member of the ANC Regional Executive Committee and was also the uMkhonto weSizwe (MK) Chief of Staff in the Southern Natal region.

The ANC at its Consultative Conference which was held towards the end of 1990 resolved, inter alia, to assist communities which were subjected to political violence in the setting up of SDU's. The 1st Applicant, in his capacity as deputy chairperson and later as chairperson of the ANC in Southern Natal received instructions from the late Chris Hani, who was the Chief of Staff and Deputy Commander of MK, to facilitate the implementation of the ANC national decision to set up SDU's in the Southern Natal region. He was thereafter contacted by MK headquarters personnel, including Mr Ronnie Kasrils and arrangements were made for the distribution of weapons for use by SDU's in the region. The 1st Applicant was only personally involved on one occasion in the actual physical delivery of a consignment of weapons, which delivery took place in the parking area of the Workshop shopping centre in Durban. He was, however, throughout the period under consideration, fully aware of and involved in the illegal procurement and distribution of arms to SDU's in the region.

The 2nd Applicant was also approached by the late Chris Hani who requested him to establish communication links between Southern Natal Region of the ANC and MK's military headquarters in Johannesburg with reference to the establishment of SDU's in the region and in particular the distribution of arms to SDU's. The 2nd Applicant thereafter, throughout the period under consideration, became actively involved in the procurement and distribution of weapons in the region. He was in regular contact with personnel at the MK headquarters and relayed information to operatives in the region relating to the receiving of consignments of weapons for distribution to SDU's.

The 3rd Applicant, in his capacity as MK Chief of Staff in Southern Natal, was responsible for collecting weapons that were delivered into the region. He was also responsible for the distribution of such weapons to SDU's. He established structures for the distribution of weapons and he made the decision as to where weapons would be distributed. He would place orders for weapons through the 2nd Applicant. He also had dealings with the 1st Applicant in regard to the procurement of weapons.

On 1st February 1993 two MK operatives were arrested at the Golela border post between South Africa and Swaziland for being in unlawful possession of a number of weapons, including two RPG rocket launchers.

The weapons which were found by the police were hidden in secret compartments in the vehicle which the operatives were driving from Swaziland into South Africa. The 3rd Applicant was shortly thereafter arrested in Durban and a charge of conspiracy was laid against him. The charge was later withdrawn.

The 3rd Applicant testified that he was involved in the procurement of such weapons and that the rocket launchers were obtained for defensive operations to be used only by trained operatives. They would not have been distributed to SDU's. Neither the 1st Applicant nor the 2nd Applicant were involved in the importation of the weapons which were seized at the Golela border post.

The applicants estimated that approximately one hundred and fifty weapons were distributed to SDU's during the period under consideration. They consisted mainly of automatic rifles but also included pistols and hand grenades. Ammunition was also distributed. The 1st Applicant testified that approximately 85 to 90% of the weapons distributed were recovered and handed over to the South African National Defence Force. None of the applicants were either arrested or charged in respect of the weapons they assisted to procure and distribute to the SDU's (save, of course, for the arrest of the 3rd Applicant referred to above).

Section 20 of the Act provides that if the Amnesty Committee, after considering an application for amnesty, is satisfied that (a) the application complies with the requirements of the Act, (b) the act, omission or offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of subsection (2) and (3) and (c) the applicant has made full disclosure of all relevant facts, it shall grant amnesty in respect of that act, omission or offence.

The applications of the applicants comply with the requirements of the Act in that they have been properly completed and timeously submitted.

We are satisfied that the acts performed by the applicants in relation to the procurement and distribution of weapons were acts associated with a political objective committed in the course of the conflicts of the past. It is clear from the evidence placed before us that the applicants at all times acted within the course and scope of their duties as members of the ANC and that they acted under and with the authority of the movement. Their acts were committed within the broad framework of the ANC policy and each of the applicants acted in direct response to specific instructions given by political and military superiors within the ANC. None of the acts committed by the applicants constituted a gross violation of human rights as defined by the Act. There is also no evidence of any personal gain, personal malice or personal ill will on the part of any of the applicants.

We are also satisfied that the applicants have made full disclosure of all relevant facts pertaining to their applications. Each of the applicants was a good witness and they answered all questions forthrightly and provided all information that was requested of them.

In the result their applications for amnesty succeed and:

1. Jeffrey Thamsanqa Radebe, Ian Munro Phillips and Sipho

Joel Daniel Sithole are

GRANTED AMNESTY: in respect

of:

(a) the unlawful supply to other persons and/or possession of machine rifles during the period December 1990 to April 1994 in contravention of section 32(1)(a) read with section 1 of the Arms and Ammunitions Act, No. 75 of 1969;

(b) the unlawful supply to other persons and/or possession of ammunition intended to be fired from machine rifles during the period December 1990 to April 1994 in contravention of section 32 (1)(e) read with section 1 of the Act 75 of 1969;

(c) the unlawful supply to other persons and/or possession of firearms during the period December 1990 to April 1994 in contravention of Section 2 of Act 75 of 1969;

(d) the unlawful supply to other persons and/or possession of ammunition for use in firearms during the period December 1990 to April 1994 in contravention of Section 36 of Act 75 of 1969;

(e) the unlawful dealing of arms and ammunitions during the period December 1990 to April 1994 in contravention of Section 18 read with section 1 of Act 75 of 1969;

(f) the unlawful supply to other persons and/or possession of hand grenades during the period December 1990 and April 1994 in contravention of Section 32(1)(c) of Act 75 of 1969 and section 28 of the Explosives Act, No. 26 of 1956;

(g) the unlawful failure to report the existence of arms, ammunition and explosives to the police whilst they were in the knowledge that certain persons were in unlawful possession of such arms, ammunition and explosives during the period December 1990 to April 1994 in contravention of Section 35(a) of Act 75 of 1969; and

(h) any crime of conspiracy where the subject matter of the conspiracy relates to any of the offences referred to in paragraphs (1(a) - 1 (g) above.

2. Jeffrey Thamsanqa Radebe is, in addition,

GRANTED

amnesty in respect of his conviction under the Internal

Security Act and in respect of which he was sentenced to a

period of 6 years imprisonment for terrorism, being a

member of a banned organisation and for undergoing

military training.

3. Sipho Joel Daniel is, in addition,

GRANTED: amnesty in

respect of:

(a) the unlawful pointing and discharging of a firearm during September 1984 at Ngwelezane in contravention of Sections 39(1)(i) and 39(1)(l) of Act 75 of 1969;

(b) the unlawful possession of a firearm during September 1984 at Ngwelezane in contravention of Section 2 of Act 75 of 1969; and

(c) the unlawful importation of, or conspiracy to import, rochet launchers, explosive projectiles and other arms, weapons and ammunition on or about 1st February 1993 through the Golela border post.

(Signed)

JUDGE S MILLER

MR J B SIBANYONI

MR I LAX