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Decisions

Type AMNESTY DECISIONS

Names MICHAEL PHILLIP LUFF

Case Number AM3814/96

Matter AM3814/96

Decision REFUSED

DECISION

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The applicant applies for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act"). The application relates to an incident which occurred during the night on 3 November 1985 or the early hours of the morning on 4 November 1985 at Zwelethemba township in Worcester, Western Cape, when a 17 year old youth, William Dyasi, was shot and killed by the applicant. Pursuant to the incident, an inquest was held at the Worcester Magistrate's Court during 1986. The presiding Magistrate found that applicant was legally liable for the killing of the deceased and referred the matter to the Attorney-General for further action. The Attorney-General initially declined to prosecute the applicant but reversed this decision during 1996 when the applicant was charged and the criminal trial postponed pending the outcome of this application.

Applicant testified in support of the application which is opposed by the next-of-kin of the deceased. The father of the deceased also testified during the hearing.

According to his version, applicant was at all material times a member of the uniform branch of the South African Police stationed at Ceres. At the time of the incident he was assigned to do duty with the riot unit at Worcester. During the evening of 3 November 1985, applicant and a fellow member of the Ceres police, one Constable Chris Geldenhuys, were on duty in Zwelethemba township when they received a report that a group of people were stoning the Zwelethemba community hall. They proceeded to the hall and witnessed a group of people repeatedly stoning the hall. At some stage both applicant and Constable Geldenhuys fired shots at the group with their shotguns. The group fled and applicant and Geldenhuys were unable to effect any arrests. At a later stage during the evening they became aware of a motor vehicle which transported what appeared to be an injured person from the township. Because they were in fear of their lives, applicant and Geldenhuys were unable to intervene in order to effect a possible arrest in spite of the overwhelming indications that the injured person was in all likelihood one of the earlier attackers on the hall who was injured in the shooting.

After having made the necessary official reports in regard to the incident at the hall, applicant and Geldenhuys returned to the township in order to see if they could not locate any of the attackers. It was already quite late at that stage and they were moving on foot through the township. they noticed a light that was burning in one of the outbuildings on a premises which was in the general vicinity where the motor vehicle had earlier collected the suspected injured person. Applicant and Geldenhuys approached the outbuilding in order to inspect whether one of the attackers were not possibly inside. Applicant looked inside the outbuilding and noticed a person with gunshot injuries lying on a mattress on the floor. This was the deceased. Applicant and Geldenhuys entered the outbuilding and identified the deceased, by his clothing, as a member of the group of attackers who stoned the hall earlier that evening. Upon enquiry, the deceased confirmed that he was shot earlier during the evening by the police. Applicant then arrested the deceased on a charge of public violence. The deceased was allowed to put on his shoes which he did with some difficulty, whereafter applicant held him on the arm and led him out of the outbuilding. When they came inside, the deceased freed himself from applicant's grip and started running away. Applicant pursued the deceased but stumbled over an object, which appeared to have been the stoep of the main building and fell on the ground losing his shotgun. Applicant managed to retrieve his shotgun and got up in order to continue pursuing the deceased who was fleeing into the night. It was dark and it became clear to applicant that he would not be able to catch up with the deceased. Applicant fired one round with his shotgun in the general direction in which he heard the deceased running. The running stopped and applicant discovered the deceased lying heavily wounded in the street. Help was summoned and the deceased removed to the hospital where he later died.

According to the testimony of Mr Dyasi, the father of the deceased, he had sent the deceased on the evening of the incident to go and look for the deceased's younger sister who had not yet returned home. It was getting late and he was getting concerned about her safety. Later the evening they received a message at home that the deceased was shot by the police and was at a house in Thusa Avenue where he found the deceased lying on the floor in an outbuilding. The deceased had gunshot wounds to his upper body and was clearly in a lot of pain. The deceased explained that he was walking in the street when he came across two policemen who were approaching him. The deceased thought that the police might assault him, took fright and started running away from the police when they shot him from behind. Mr Dyasi attempted to remove the deceased from the outbuilding but was prevented from doing so by the condition of the deceased. he decided to seek help from his pastor. he called at the pastor's house who subsequently accompanied Mr Dyasi to the police station where the matter was reported. While they were still present at the police station, Mr Dyasi heard a gunshot in the vicinity. He later accompanied the police to the house where the deceased was. Near to that house Mr Dyasi noticed the deceased lying outside in the street. He ascertained that the deceased had been shot again and that he was very badly wounded. One of the policemen present at the scene informed him in an aggressive manner that he had shot the deceased. After some time the deceased was removed from the scene and he eventually died.

In order to qualify for amnesty, applicant is required by the Act to make full disclosure of all relevant facts and his actions must constitute acts associated with a political objective as envisaged in the Act. The application was opposed on both these grounds.

In assessing the application we are mindful of the fact that only limited weight could be attached in the circumstances to the version of the shooting conveyed to Mr Dyasi by the deceased. We have no doubt in our minds that the evidence of Mr Dyasi is true. The possibility, however, remains that the deceased could not have conveyed a correct version of the shooting to Mr Dyasi. There are further aspects relating to the merits of the application that are also in dispute on the evidence before us such as the condition of the deceased while he was lying in the outbuilding and his ability to free himself from applicant's grip and run away. In view of the fact that the matter can be disposed of on the second requirement referred to above, we regard it as unnecessary and in fact undesirable in view of the pending legal proceedings to finally decide any of these issues. We will accordingly deal with the requirement that the applicant's conduct should constitute an act associated with a political objective in terms of the Act.

On applicant's own version, his purpose in confronting the deceased in the outbuilding and eventually shooting and killing the deceased was to prevent him from escaping in order to effect an arrest. Applicant was acting in the execution of his general duties as a police officer in combating crime. Applicant's sole reason for acting against the decease was his belief that the deceased had earlier committed an offence by stoning the community hall. Applicant was clearly not acting in pursuit of any political objective or against a political opponent. The actual identity or political affiliation of the deceased was unknown to applicant.

Having carefully considered the matter, we are not satisfied that applicant's conduct in killing the deceased constituted an act associated with a political objective as required by the Act. This in our view is determinative of the matter. The application for amnesty is accordingly REFUSED.

SIGNED AT..................THIS.....DAY OF..........2000

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JUDGE DENZIL POTGIETER

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ADVOCATE F BOSMA

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ADVOCATE S SIGODI

 
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