DECISION
On the 6 September 1992, at Fort Beaufort, an elderly white male Giovanni Francescato was alone at home when three armed men burst in and assaulted him with kicks and fists. He was forced to point out where the arms were, which he did. The house was then ransacked and he was shot dead with a pistol by Biko, the first applicant in this matter. Also taking part in the attack were Veveza and Yengeni, the second and third applicants, respectively. The applicants now seek amnesty for the following offences:-
1. Robbery of a 410 shotgun and
2. Contravention of Section 2, read with Sections 1, 39 (1) (h) and 39 (2) (b) of Act 75 of 1969 being in unlawful possession of the said shotgun and two 410 cartridges and an undetermined number of .22 ammunition.
The applicants were found not guilty for the crime of murder and consequently seek no amnesty in this regard. Although they were found guilty of stealing money in the amount of R150.00, they still deny having stolen such money when they attacked the victim. They seek no amnesty in respect of the money, and insist that they cannot apply for an act which they never committed. They say at the time of the incident they were members of a Task Force of the Azanian People's Liberation Army (APLA), the military wing of the Pan Africanist Congress (PAC). They were carrying out orders from Tamsanqa Duma, the local commander of APLA. The attack was being carried out in line with APLA policy of attacking white homesteads to secure arms for the defence of PAC members. They were to be used in general APLA operations.
It would appear that Duma did not have direct communication with all the applicants and only communicated with Biko who issued orders to Yengeni and Veveza. Biko also played a leading role during the attack and Yengeni and Veveza simply followed his instructions.
Because his mother, who has since deceased, had previously worked as a domestic for Francescato, Biko knew the place and identified it to Duma as a possible target. Duma had given him the go-ahead. Biko then reconnoitred the house before the attack. Yengeni and Veveza did not know of any plans to attack the place but they knew generally that, in line with APLA policy, white homes had to be identified and attacked to secure weapons. It was only when they were in front of the gate of the house of Francescato that Biko immediately commanded that they all go in and look for weapons. Biko knocked at the door and when Francescato opened he said he was looking for some person. The latter replied that there was no such person there and closed the door. Biko then kicked the door open and assaulted him with fists and kicks. The others joined in in the attack and Francescato was overpowered. Whilst others were searching the house Biko shot Francescato dead. After the attack the arms found were handed over to Duma by Biko. On the same day the applicants proceeded to launch another attack on a shop at Fort Beaufort where a sum of R1 400 was robbed. The matter will be dealt with in chambers.
Duma testified and confirmed having received the arms on that same day, and the money the following day. He further confirmed having given the order that Francescato be robbed and killed to prevent him from identifying the applicants and testify against them in court. He was asked why it was necessary to kill Francescato because at that stage he had already shown them where the firearms were. He replied that it was the policy of APLA to attack and kill whites, who then saw as enemies of the "African People". Also called by applicants to testify was one Sipho Bulelani Xuma, a former Deputy Director of APLA Operations. Nothing of significance emerged from his evidence in relation to this particular incident. He did however say that the nature of the attack was in line with the APLA policy of attacking white homes and "repossess" weapons for use by APLA. He could not corroborate Duma that the money was forwarded to their Head Quarters in the Transkei which were administered by one "Mbulelo Dlamini", but he assumes that the money was received by Dlamini who later died in 1994. He therefore could not corroborate Duma in his claim. Duma is currently a member of the South African National Defence Force and was previously convicted and sentenced to prison for his involvement in the PAC activities. He also seems to have been a prominent figure at Fort Beaufort in the PAC circles where there was ongoing conflict between the PAC and ANC supporters.
The Committee took cognisance of the many previous convictions in the case of Biko and Veveza, albeit they are not seeking amnesty for these. They were both questioned at length in this regard. The offences ranged mainly from house breaking; theft of motor vehicles and robbery. Their explanations were most unsatisfactory. Put candidly, it was a mixture of unmitigated lies and self-exoneration in that regard. However Duma and Xuma confirmed the versions relevant to this application. In this context it is important to mention that Xuma testified that criminals were also targeted for recruitment by APLA, because of their "skills" and lack of fear to act when given orders to do so. But Duma says he was not aware of the previous convictions of the two applicants when he, initially, gave them basic training at Fort Beaufort and ordered them to carry out the attack.
On the evidence, the actions for which amnesty is sought were committed for political motives and the applicants have made the necessary disclosure. In the result, we are satisfied that the applicants have complied with the requirements of the Act.
Accordingly amnesty is GRANTED to all the applicants in respect of the following offences:-
1. Robbery of a shotgun, the lawful property of Giovanni Francescato on 6 September 1992 at Fort Beaufort;
2. Contravention of Section 2, read with Sections 1, 39 (1) (h) and 39 (2) (b) of Act 75 of 1969 being in unlawful possession of the said shotgun and two 410 cartridges and an undetermined number of .22 ammunition on 6 September 1992 at Fort Beaufort.
Signed on the
: day of
: 1999.
JUDGE R PILLAY
ADV. C. DE JAGER S.C.
ADV. N. SANDI
