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Decisions

Type AMNESTY DECISIONS

Names KGALITHA TSOTETSI

Matter AM7974/97

Decision GRANTED

DECISION

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The applicant applies for amnesty in respect of the offences related to the overpowering of prison warders Van Rooyen and Komane and the holding of them as hostages in the Boksburg prison on 18 March 1994, the threat to set the prison on fire, assault and any other offences directly related to the above incidents.

It is common cause that the applicant was a member of the South African Prisoners Organisation for Human Rights, known as SAPoHR. This organisation is described in the preamble to its constitution as "a democratic and anti-racist, anti-sexist, politically non-aligned organisation, to campaign for the overhaul of the apartheid criminal justice and prison system and improve the conditions of those incarcerated in South African jails; to research and educate around humane and effective treatment of criminality; to research, organise, initiate and support prison change and seek redress for abused inmates, ex-inmates and their next-of-kin; to end economic exploitation by gaining the right for a prevailing wage for all work done in prison; to establish a uniform and equitable sentencing procedures, to restore civil and human rights to detainees, inmates, ex-inmates, their next-of-kin and others; and to work for shortening sentences and effective alternatives to imprisonment to ease South African prison overpopulation and provide a justice and correctional service that redress the crime and violence inherited from apartheid and thereby contribute to a culture of human rights and social justice in South Africa.

A copy of the constitution is annexed hereto. The Committee, however, wishes to refer to the following specific passages:-

2. 'SAPoHR's OBJECTIVES"

"Specific
(i) to unite all South African inmates, ex-inmates and their next-of-kin for reintegration and re-education in all South African jails and to suppress all forms of apartheid, discrimination, corruption and oppression in and outside prison.

(ii) to defend the democratic rights and privileges of inmates, ex-inmates etc. and advance towards an environment in which the prison staff and inmates shall respect each other.

(x) to fight for the rights of inmates to vote for and/or be a member of any organisation of their choice.

3. CHARACTER OF SAPoHR

SAPoHR shall work closely with political, human rights organisation, civics, unions, social workers and religious bodies throughout the country and shall provide on a non-denominational, non-aligned basis for the recognition of the human, legal, political and spiritual needs of inmates".

MEMBERSHIP

Membership of SAPoHR shall be open to all citizens as laid out in the preamble regardless of race, ethnicity, colour, sex, gender, language, creed, religion or political affiliation and who accept the organisation's policies and programme and are prepared to abide by this constitution.

It is also common cause that SAPoHR in the run up to the 1994 election vigorously campaigned for the right of prisoners to vote in that election. This seems to be in accordance with the specific objective of the organisation quoted under 2(x) above. This campaign included mass action and demonstrations in the various prisons. According to the evidence the prison authority at the Boksburg prison was opposed to the demonstrations. This lead to resistance from the side of prisoners resulting to "threats to burn the prison and in the end to the kidnapping of the two prison warders, Van Rooyen and Komane and holding them hostage. This was as a result of an announcement by then President de Klerk that certain categories of prisoners would not have the right to vote in the general election of 1994.

Evidence was also given by Mr Miles Bhudu who testified that he was at the time president of SAPoHR and that he instructed and authorised the prisoners to do the kidnapping and the other offences in respect of which amnesty is sought. He also testified that he accepts full responsibility for the orders and that he requested Mr Maharaj of the ANC and Mr Benny Alexander (Khoisan X) of the PAC to meet him at the prison to acquaint themselves with the demands of the prisoners. According to him they supported the demand to vote on behalf of their parties. He further testified that he himself was a member of the ANC and that the public perceived SAPoHR to be affiliated to the ANC because of his close association with that political party.

The applicant testified that he himself did not know whether SAPoHR had any relationship with the ANC.

As far as the facts are concerned it would suffice to say that the hostages were freed by a task force and that they didn't suffer any serious injuries.

The Committee is satisfied that the applicant made a full disclosure of all the relevant facts pertaining to the offences and that his application form was timeously handed in and is formally in order. It is also clear that the protest was directed against the Department of Correctional Services and/or its employees acting on its behalf and as employees of the State.

The only question to be answered is whether the applicant acted as a member or supporter of a publicly known political organisation or liberation movement in support of such organisation or movement.

There can be no doubt that the applicant acted as a member of SAPoHR in support of SAPoHR. He didn't state that he acted on behalf of or in support of the ANC. Was SAPoHR a political organisation or liberation movement as envisaged by the Act 34 of 1995? A political organisation is not defined in the Act, neither is a liberation movement. The words organisation or a movement clearly reflect on a body of persons and would include a body like SAPoHR. SAPoHR's objective was inter alia "to fight for the right of inmates to vote for and/or be a member of any organisation of their choice." Apart from other objectives which are associated with the political field or objective, this clearly was an issue related to the conflicts of the past. The whole political struggle centred on the "right to vote".

According to the Oxford Dictionary, the meaning of political is:

1. (a) of or concerning the State or its government, or public affairs generally
(b) of, relating to, or engaged in politics.

(c) belonging to or forming part of a civil administration.

2. Having an organised form of society or government

3. Taking or belonging to a side in politics or in controversial matters

4. Relating to or affecting interests of status or authority in an organisation rather than matters of principle (a political decision).

The right to vote, would in our opinion, fall within the ambit of the above meaning.

It is also significant that the Act does not refer to a political party but to a political organisation. The legislature must have envisaged that there could be organisations acting in the political field that may not be political parties.

The Committee concludes that SAPoHR is an organisation which concerned itself with State affairs which included political matters such as the right to vote and the fight against apartheid vide "objectives - Specific (i)" supra. The offences committed by the applicant were associated with a political objective and he was a member of an organisation acting also on the political playing field in fighting for the right of prisoners to vote as well as other human rights.

Amnesty is GRANTED to the applicant in respect of the offences related to:-

1. the overpowering of prison warders Van Rooyen and Komane and the holding of them as hostages in the Boksburg Prison on 18 March 1994, and;
2. the threat to set the prison on fire, assault and any other offences directly related to the above incidents.

The Committee recommends that Abram Jeremia van Rooyen and Komane be considered to be victims in terms of Act 34 of 1995.

DATED AT THIS DAY OF 2000.

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ACTING JUDGE S KHAMPEPE

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ACTING JUDGE J MOTATA

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ACTING JUDGE C DE JAGER

 
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