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Decisions

Type AMNESTY DECISIONS

Names NKOLISEKO LONKI MBANGI

Matter AM 0424/96

Decision REFUSED

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DECISION

The applicant applies for amnesty in respect of the murder of Samuel Daniel Barnard and attempted robbery, which crimes were committed on 20 November 1992 at Rooihoogte.

The applicant, when testifying at the hearing of this matter, stated that he joined the Azanian Peoples Liberation Army (APLA) during 1985. He stated that he was approached by his commander, one Mziwabantu Stokwe, who told him that they were going on a mission to get money and firearms. The applicant then recruited three other people to assist in the operation, namely, Mncedisi Mbotya, Mzwabantu Stokwe (not to be confused with the commander, Mziwabantu Stokwe) and Luyanda Madola. The applicant did not tell the persons he recruited that the robbery was an APLA mission and none of the said persons were members of APLA.

On 20 November 1992 the applicant, his commander, the aforesaid three recruits and one Totosi Stokwe, the brother of the commander, who applicant only mentioned for the first time when being cross-examined by the victims legal representative, proceeded to Rooihoogte where Samuel Daniel Barnard (hereinafter referred to as "deceased") was selling goats and sheep from a truck. The commander was armed with a firearm and the others with knives. The applicant and his commander approached the deceased. The commander pointed his firearm at the deceased who also then produced a firearm. The commander then shot and killed the deceased.

The applicant stated that he then took the deceased's firearm and as they were leaving the scene a man who was standing at a nearby farmhouse, who applicant said was the deceased's son, fired a shot at and killed the commander. The applicant then shot at the man and fled the scene. He said that he lost the deceased's firearm in the veld when he was fleeing.

Petrus Frederick Barnard, the deceased's son, also testified at the hearing of this matter. He stated that he was not present at the scene when his father and the commander were shot. He arrived at the scene only after the shootings had taken place. He stated that he found the deceased's firearm in the truck on the floor next to the gear lever.

The applicant and the three persons he says he recruited were later arrested. They were all charged with murder and attempted robbery. The applicant was convicted on both charges, Mncedisi Mbotya was convicted on the charge relating to attempted robbery only and both Mzwabantu Stokwe and Luyanda Madola were found not guilty and discharged.

The evidence of the applicant was unsatisfactory in many respects. In the application form submitted by the applicant when he first made application for amnesty he stated that the attack on the deceased was made in furtherance of the slogan "kill the farmer" and that no one ordered the operation. This is contradictory to the testimony he gave at the hearing of this matter. He also stated in his testimony that one Mandu Befile, his commander's commander, had authorised his commander to carry out the operation. A statement submitted by the said Mandu Befile to this Committee states that he was not an APLA Commander. The applicants evidence relating to the taking of the deceased's firearm has also been directly contradicted by that of the deceased's son who testified that the firearm was recovered at the scene of the crime.

His evidence also, in our view, contains a number of improbabilities, the most significant of which is the fact that the majority of the persons that he says was involved in the attack were unaware that it was an APLA operation. It is most improbable that if the attack was an APLA operation that persons who were not members of APLA would be taken on the mission. The applicant also stated that he did not know the APLA structures as he was never informed of them. It is, to our minds, improbable that he was an APLA cadre as political education was an integral component of the training of cadres.

We are, after careful consideration of all the evidence before us, not satisfied that the crimes committed by the applicant were acts committed with a political objective.

We are also not satisfied that the applicant has been truthful in his testimony or that he has made a full disclosure of all the relevant facts.

In the circumstances the application does not succeed and amnesty is REFUSED.

DATED AT

: THIS

: DAY OF

: 2000.

JUDGE A WILSON

JUDGE S MILLER

JUDGE N J MOTATA

 
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