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Matter AM 0949/96

Decision GRANTED

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This is an application for amnesty in terms of section 18 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 ("the Act") in respect of the following offences committed at or near Ndofela Village and the Mayaputhi – Sterkspruit Bridge on 18 March 1992:

1. The murder of Fanie Smith;

2. The attempted murder of the following persons:-

2.1 Ben Maliehe;

2.2 Deon Martins; and

2.3 Andrew Lategan Franzsen;

3. Malicious injury to property and arson on a Toyota Corolla motor vehicle belonging to Deon Martins and bearing registration letters and numbers OA 35707;

4. The unlawful possession of an unlicensed R5 automatic rifle and ammunition;

5. Intimidation and/or pointing of a firearm at Nkopane Johannes Lesia; and

6. Robbery of an Isuzu Diesel Bakkie, 2200, belonging to Nkopane Johannes Lesia bearing registration letters and numbers CAC 6845.

On the morning of 18 March 1992 and whilst the victims were travelling in a motor vehicle from Zastron to Sterkspruit where they worked, they were shot at by armed gunmen. The victims lived in Zastron and travelled daily to Sterkspruit, where they were running a furniture business. The two towns fell under the jurisdiction of the Republic of South Africa ("RSA") and the then Transkei, respectively. Deon Martins ("Martins") sustained a severe injury on the left hand and his finger was subsequently amputated. (However, he died about three years later when he was involved in a motor vehicle accident). Ben Maliehe ("Maliehe") and Andrew Lategan Franzsen ("Franzsen") were very lucky not to be struck by the bullets that were being fired at them by the attackers as they were fleeing from the scene. Fanie Smith ("Smith") was not so lucky as he was unable to flee when their car’s engine ceased to function, due to gunfire. He was cold-bloodedly shot where he lay next to the vehicle and died as the result of the bullet wounds which he sustained.

Initially the general application of Letlapa Mphahlele ("Mphahlele") was also enrolled for simultaneous hearing with the present matter. We deliberately allude to it as a "general" application because he does not specify in respect of what incidents or operations he is seeking amnesty. During the hearing, it became abundantly clear that Mphahlele had no intention of participating in the proceedings or to give viva voce evidence. A notice in terms of section 19(4) had been served on him and there was no question of him being unaware of the hearing in respect of this case. Mr Lungelo Mbandazayo who represented Luyanda Gqomfa ("Gqomfa") made a number of sterling attempts to secure the co-operation and attendance of Mphahlele. All efforts were in vain. In the circumstances, the Committee had no choice but to proceed on the basis that there was only one applicant in the matter, namely Gqomfa.

Before the commencement of the evidence, the Evidence Leader Advocate Paddy Prior advised the panel that the widow of the late Mr Smith had been informed of the date and place of the hearing. Initially her interests in the matter were going to be represented by attorney Mr Wagenaar who subsequently withdrew. We were advised that in the circumstances of the case the Legal Aid Board was unwilling to assist and the victims were represented by Mr Prior. The Committee is most indebted to him for his assistance.

Gqomfa testified that at the relevant time he was a member of the Azanian People’s Liberation Army ("APLA"), the military wing of the Pan Africanist Congress of Azania ("PAC"). He received military training in exile and then returned to the country where he carried out various operations on behalf of APLA. He received orders in respect of all these operations from the High Command of APLA, particularly Mphahlele who at the time was APLA’s Director of Operations and a member of its High Command. In regard to the incident at hand his evidence can be summarised as follows:

At the time of the incident, he was being harboured at a house in Sterkspruit that Mphahlele had secured for him. He does not know who owned the house and he stayed there alone. Whilst he was there Mphahlele and another APLA member one "Ben Wakumzi" (an alias) came to fetch him. They took him to a certain place, also in the Sterkspruit area, where they informed him that they would have to obtain a vehicle to carry out an operation. Also present at this particular meeting was another member of APLA, one "Monde" (an alias). At the meeting, Mphahlele instructed them to attack white travellers along the Mayaputhi – Sterkspruit Bridge. They then went to Ndofela Village where they robbed Nkopane Johannes Lesia ("Lesia") of his Isuzu Diesel Bakkie 2200 motor vehicle, bearing registration letters and numbers CAC 6845.

In a statement made by Lesia to the police, it is reflected that during the afternoon of 18 March 1992 he was on his way from Palmietfontein where he lived to Ditapoleng Village. When he drove past Ndofela Village he saw three black men standing next to a small bridge. They were all armed with firearms. He heard gunshots. It was one of them firing shots to force him stop, which he did. The three men rushed to him and one pointed a firearm at him and ordered him to get out of the vehicle. When he told them that he was on his way to work, they told him that they were freedom fighters and wanted to use his car "for the struggle". The statement further reflects that they gave him an amount of R20.00 so he could travel to work. He reported the incident to the police and later received a report that his vehicle had been found. The statement materially coincides with the evidence of the applicant.

After robbing Lesia of his vehicle Gqomfa and his comrades proceeded to the Mayaputhi – Sterkspruit Bridge. Mphahlele was in charge of the operation. He was armed with a .38 Spanish Revolver and they all took orders from him. The applicant was armed with a R5 automatic rifle, Ben a 9mm pistol and Monde a 7.65mm pistol. Ben had driven the Isuzu Bakkie. The vehicle was to be used as the "get away" vehicle. Mphahlele was to initiate the attack by shooting first and the others were to follow suit. He was standing on the left hand side of the applicant, about 100 metres away from him. Monde was on the right hand side of the applicant and Ben on the far right with the vehicle, ready to whisk them away as soon as the operation had been carried out.

When Smith and the other victims approached the Mayaputhi – Sterkspruit Bridge, Mphahlele opened fire, and the rest also fired. The vehicle immediately stopped and Martins, Maliehe and Franzsen frantically alighted and ran away. Smith who had sustained injuries was unable to flee. As he was lying on the ground next to the vehicle Monde pointed the pistol at him and Mphahlele gave an order that Smith be shot. Gqomfa then shot Smith. However, he said that he regrets shooting the deceased, but indicated that had no choice as he was carrying out orders. After the operation, they set the Toyota Corolla motor vehicle alight in order to prevent their being traced. They then drove away and abandoned the Isuzu vehicle about 2 to 3 km away from the scene, leaving the keys in the ignition.

It is clear that the applicant was a member of the PAC and APLA and that he acted in terms of these organisations’ policies and objectives. At the relevant time APLA was still engaged in the armed struggle and regarded all whites as supporters of the Apartheid Government. Attacks of this nature were aimed at impressing on whites the need to abandon their support for the Government of the time and to make it clear that they would continue to be targets of such attacks unless there was political change in the country. The applicant acted under the orders of Mphahlele. It is also clear that the offences and acts applied for are acts associated with a political objective and that the applicant has made full disclosure of all relevant facts.

In the result amnesty is

GRANTED: for the offences set out on pages one and two above.

We are of the opinion that the following persons who were killed or injured are victims and they are accordingly referred to the Reparation and Rehabilitation Committee in terms of Section 22(1) of the Act.

1. The relatives and/or dependents of Fanie Smith;

2. Ben Maliehe; and

3. Andrew Lategan Franzsen.

SIGNED AT CAPE TOWN ON THIS_______DAY OF ____________ 2000.







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