DECISION
This application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act") arose from an incident which happened on the night of 23 April 1994 at Devon in the district of Nigel, Gauteng.
During the incident, Sergeant Steven Frederich Terblanche ("the deceased") was shot and killed and robbed of his firearm while he was guarding the former Airforce base at Devon which was occupied at the time of the incident by the Internal Stability Unit of the then South African Police.
Pursuant to the incident first applicant, whose trial was separated from that of the other Applicants, was convicted of Murder and Robbery with aggravating circumstances and sentenced to an effective 15 years imprisonment in the Springs Circuit Division of the Transvaal Provincial Division of the then Supreme Court on 17 - 18 October 1995.
On 5 November 1996, second and third Applicants were jointly tried in a separate trial in the Springs Circuit Court and convicted on similar charges except that third Applicant was in addition convicted of the unlawful possession of a firearm and ammunition. They were sentenced to effective imprisonment of 10 and 8 years respectively.
All of the Applicants, as well as Constable Andre Renier Swart who was in the company of the deceased at the time, testified at the hearing.
The salient features of the case are briefly that Applicants were at all material times members of right wing political organisations. First Applicant was actively involved in the Boere Weerstands Beweging ("BWB") which he joined at the beginning of 1993 after having left the Afrikaanse Weerstands Beweging ("AWB") due to his disenchantment with the AWB's failure to engage in concrete political action in pursuing its objectives. First Applicant later joined the Boere Republikeinse Leer ("BLR") which was the military wing of the BWB where he held the rank of Commandant.
The other Applicants were both ordinary members of the AWB which they joined during December 1993.
In the light of the view widely held amongst the Right that whites would be attacked on Election Day, 27 April 1994, various steps were taken to prepare for this eventuality. One of the steps was that members of right wing organisations were ordered to obtain appropriate firearms to ward off an attack. Since it was accepted that the enemy would be armed with automatic weapons, it was regarded as futile to be armed merely with hand weapons in defence. The anticipated attack could only be effectively warded off if the right wing was itself armed with automatic weapons.
It was against this background that first Applicant was introduced to the other two Applicants approximately two weeks before the incident. They all shared the same political sentiments.
On the day of the incident, the other two Applicants were ordered by their Commander in the AWB to accompany first Applicant to Pretoria where they would attempt to obtain automatic weapons. They armed themselves and drove to Pretoria in the vehicle of third Applicant. First Applicant was in charge of the mission and directed them to an army building in Pretoria city centre guarded by armed guards. His plan was to rob the guards of their automatic firearms. They aborted the mission when it appeared that they were totally outnumbered by the guards. According to the other two Applicants, first Applicant suggested that they attack the guards for the purpose of making propaganda, but they refused. They both said that it then became clear to them that first Applicant was fanatical.
On their way home, first Applicant remembered that there was an Airforce base at Devon where he had done a part of his military service in 1992 and decided that they should go there. This was roughly on their way to Secunda where they lived. There is a dispute between first Applicant and the other two Applicants in regard to the purpose of their calling at Devon. According to the other two Applicants they were going to reconnoitre the base for the possibility of obtaining the weapons which they were seeking. According to first Applicant they went to Devon not to reconnoitre, but to actually obtain weapons. We shall revert to this issue which is of considerable importance in this matter.
At Devon, first and second Applicants entered the premises while third Applicant, the driver, remained in the vehicle. They approached the guard house occupied by the deceased and Constable Swart. First Applicant was leading the way and entered the guard house without first ascertaining who was inside. It became apparent that the guard house was occupied by members of the police. First Applicant ordered the police to hand over their weapons. Both policemen were armed with their service pistols. There were no automatic weapons in the guard house.
In the course of disarming the deceased a scuffle ensued between him and first Applicant. Shots were fired resulting in first Applicant being wounded and the deceased being killed. First Applicant took the service pistol of the deceased and ran to the vehicle followed by second Applicant. They drove to Secunda where first Applicant obtained medical assistance and was later arrested in hospital. Third Applicant had possession of the deceased's pistol for a few days whereafter it was disassembled and thrown into the dam. The other two Applicants were also subsequently arrested. Save for a few less important differences in the various versions, this was largely the effect of the testimony presented at the hearing.
We have very carefully considered the evidence and all of the arguments as well as the decisions of the Amnesty Committee referred to by Adv. Prinsloo, who appeared for first Applicant. It is clear that the attack upon the deceased fell outside the orders or authority given to the Applicants to obtain automatic weapons for the purposes of their respective political organisations.
The initiative in the mission was taken by first Applicant, whom the other Applicants were ordered to assist. First Applicant himself indicated that to his mind the mission was unsuccessful and that if he had known that the base was occupied by the South African Police, he would not have embarked upon the operation at Devon. It is clear to us that the version of second and third Applicants as to the purpose of their visit at the base is true. The idea to call at the base was formed on the way home when first Applicant remembered about the base where he had spent approximately 3 months in 1992. It would have been reckless to decide to attack the base for automatic weapons without reconnoitring the same. They would have no idea whether they would find the weapons they were looking for or what kind of resistance they would meet. They obviously went to the base to see what the situation was there, as testified to by second and third Applicants. The attack on the guard house was clearly a result of the impulsive, overhasty and haphazard actions of first Applicant as alluded to in the testimony of second Applicant.
A further important factor is the fact that the pistol of the deceased was subsequently disposed of without being used for any of the purposes of the political organisations in question. This is further indication of the fact that attacking and robbing the deceased of his pistol fell outside any mandate or order given to Applicants. On Applicant's own version the order was to obtain automatic weapons.
In any event, the killing of the deceased in all of the circumstances of the case is disproportionate to any conceivable objective pursued by the Applicant.
We are not satisfied that the incident in question constitutes an act associated with a political objective in terms of the requirements of the Act and the applications are accordingly
REFUSED: .
We are of the opinion that the next-of-kin of Sergeant Steven Frederich Terblanche are victims in relation to this incident. The matter is accordingly referred for consideration in terms of Section 26 of the Act.
(Signed)
DENZIL POTGIETER A.J.
ADV GCABASHE
MR J B SIBANYONI
