DECISION
_____________________
The two applicants who were accused numbers 2 and 3 at their trial, were charged with and convicted of the murder of Samuel Kganakga on 21 may 1991. Accused 1 was Willem Francois Oosthuizen and he has not made a valid application for amnesty in that he denied his guilt.
The first applicant was sentenced to fifteen years imprisonment and the second applicant to twenty years imprisonment. We attach hereto a summary of the substantial facts which was attached to the indictment in their case. They applied for leave to appeal which was refused and thereafter petitioned the Appellate Division. This was also unsuccessful. Although the applicants were represented by different Advocates, they practice at the same address at Delmas and the applications were identical, including the annexures thereto. In these circumstances, it was decided to consider the applications jointly. Amnesty is sought in respect of the murder of Samuel Kganakga. The documents before us at the hearing were:
1. Application for Amnesty in respect of the first application to which was attached Annexure A, an English translation of Annexure A and Annexure B;
2. Application for Amnesty in respect of the second applicant with similar annexures and a copy of his petition for leave to appeal dated 26 May 1993.
3. Judgment of the trial Court and further judgment in respect of application for leave to appeal;
4. Report on medico-legal post mortem and two photographs of the body of the deceased;
5. Two letters written by Fidelity Guards (Pty) Ltd addressed to Mrs E. Fourie, date 7 November 1989, marked "A" and "I".
6. A number of newspaper cuttings and articles marked "B" to "H".
The two applicants were both ex-policemen who had taken up employment with Fidelity Guards in Johannesburg.
The second applicant had been employed there for a considerably longer period than the first applicant and held a responsible position, in that he was in charge of investigations and it was he who had been instrumental in obtaining employment with Fidelity Guards for the first applicant. The deceased, Samuel Nganakga had also been employed by Fidelity Guards.
The evidence led at the trial and before us disclosed that he was suspected of having participated in the theft of R60 000-00 from the cellar of the building where Fidelity Guards were situated on the night of 20 to 21 May 1991. There was also some suggestion that he had been in some way implicated in the theft of several million rand from Fidelity Guards on 27 March 1991. This was an armed robbery in which persons were injured.
We do not propose to deal at any length with the evidence led at the trial as emerges from the judgments or with the evidence given before us as to what happened on the day in question.
It now appears to be common cause that the second applicant arrived at the premises of Fidelity Guards at approximately 5am on the morning of the 21st of May 1991. He there met the deceased at took him, apparently at gun point, to his office where he questioned him. He was thereafter joined in this office by his co-accused at the trial and Julius Khosa and Jack Nkoana who were also employed by Fidelity Guards.
Khosa and Nkoana were used on the day in question as interpreters between the other three and the deceased and as messengers when cooldrinks or other refreshments or food was required. The five of them took the deceased from the office to a place in the vicinity of Cleveland. When they arrived at the scene there, the second applicant realised that people who were repairing the traffic lights in the vicinity would be able to see what was going on and directed the group to move on to another place on an abandoned mine dump.
It appeared clear that the second applicant and Oosthuizen had been to this place before and on arrival, they took the deceased out of the vehicle in which he had travelled to a tree among the bushes. He was bound there and hoisted up by his legs so that he was hanging upside down. This was at about 9am.
He was questioned and thereafter the second applicant produced a shock machine from his vehicle and this was affixed to various parts of the deceased's anatomy, including his sexual organs and shocks were applied. He continued to deny all knowledge of the offences which he was suspected to have played a part in.
After the application of the shocks, which lasted for about an hour, he was left hanging upside down in the tree for most of the day, that is, until about 5pm. He was lowered from time to time, but then again hoisted into the tree. During the course of the day, while the unfortunate deceased was hanging suspended from a tree, the second applicant collected leaves that were lying in the vicinity and burnt a fire under the head of the deceased. It was his evidence that the intention was not to cause any injury to the deceased, but to discomfort him further by causing him to breathe in the smoke.
He was given no refreshment of any sort during the course of the day. He was questioned from time to time and continued to deny all knowledge. Khosa and Nkoana realised that his life might be in danger and endeavoured to persuade him to make a statement indicating knowledge so that he could be released from his present predicament. This he refused to do. Whilst the deceased was hanging in the tree, the three white employees, who were later the accused, ate and drank. They drank vodka and brandy and when the supply ran out, more was purchased.
It would appear from the evidence that they regarded the whole incident as an entertainment of some sort. At 5pm Khosa and Nkoana were told they could go, which they did. Thereafter, the deceased was lowered and brought back to where the vehicles were. There was some conflict in the evidence regarding this, but we consider it to be immaterial in arriving at a decision on the application.
The evidence of Nkoana, both at the trial and before us, was that the deceased was badly affected by having hung upside down all day. His face was swollen, his eyes were bloody and red, he could hardly walk and he had marks and abrasions on his legs. When he was brought to the vehicles, he allegedly attempted to escape. This was after he had been shot through the shoulder by Oosthuizen during the course of the questioning.
According to the second applicant's evidence before us, the deceased then ran to the first applicant for shelter, he was bleeding severely at the time and was pushed off by the first applicant. He then tried to get into the bakkie but was pulled out of it by the first applicant, who in the course of his evidence, said he did not want to get blood in his bakkie. He then attempted to run. The second applicant said in his evidence, and we quote:
"I realise we were in big trouble so I shot him."
He repeated more than once that he shot the deceased because he realised if he escaped with serious injuries he now had, they would be in big trouble. His evidence was that the police in Brixton had been prepared to assist him in the past when person he has questioned, had suffered only slight injuries.
After the first shot the deceased continued trying to get away and the second applicant says that he then fired two more shots as a result of which the deceased fell and when they approached his body, they discovered that he was dead.
Thereafter, it was decided to get rid of the body and the first applicant took the body away - stopped at a garage on the way to buy petrol and then took it to a deserted spot where he poured the petrol over the body and burnt it. The second applicant went home.
When he got to work the next day, he told Khosa and Nkoana that the deceased was dead. According to him, they were not shocked by this and agreed to say that they had taken him back to his house on the day before. That was in Abel Road, Berea. Later the first applicant returned to the body and chopped off one arm which had not been burnt. This was apparently to prevent identification of the body.
In support of his claim that this was an act committed with a political purpose, the second applicant, who gave evidence first, averred that he had information that the deceased had contact with the PAC. This allegation was repeated by the first applicant in his evidence. The first applicant alleged that it was obvious that the first robbery, that is the robbery on the 27th of March 1991, must have been to get funds, presumably for a political party. The first applicant said that he was told that the deceased was connected with PAC activities but he did not know how true this was.
We must stress that there was no reference to either of the applicants having been influenced by political considerations in the judgment on the merits or in the long and detailed judgment on sentence. The first applicant did not give evidence at the trial, but it appears from the judgment that nothing was put to the State witnesses by counsel who appeared on his behalf, suggesting any such political motivation.
There is no reference to the applicants having believed that the deceased had political connections or that they were influenced in any way by any political motivation to act as they did in the long and detailed petition prepared on behalf of the second applicant. This document, which was 25 pages long, contained the following reference to the deceased's conduct in paragraph B.2:
"Your Petitioner and the other accused suspected the deceased because he was connected with the commission of a robbery at Fidelity Guards in Johannesburg before 21 MAY 1991."
As we have already said, there was no suggestion in this passage or any other that the petitioners were aware of any political connections the deceased may have had or even that they suspected him of having had such connections. It was furthermore never suggested that the applicants acted with the noble motives now advanced, that is, that they acted in the interests of the government and the country.
We are satisfied on the information available to us that the applicants suspected the deceased of being a thief and a robber and no more.
During the first applicant's evidence, he referred to shots which were fired in the vicinity of the deceased by Oosthuizen as had been testified to by the second applicant. the importance of this evidence is that the first applicant said that he stopped Oosthuizen immediately as it was important that the deceased should not die as they wouldn't get any information from him then. This again goes to show that no useful purpose could possibly be served by killing the deceased. The first applicant in his evidence also confirmed that the second applicant shot the deceased more than once.
Jack Nkoana gave evidence before us, as he had at the trial. His evidence agreed, in the main, with the evidence of the two applicants as to what transpired that day. An important part of his evidence which, as far as we recall, was never challenged by either of the Advocates who appeared before us on behalf of the applicants, was that he said that he was never told to ask the deceased about his political affiliations. What he was told to ask him about was the R60 000-00 which disappeared the night before.
It appeared from his evidence, and this was confirmed by evidence led at the trial, that when the first applicant stopped to buy petrol with the body of the deceased in the bakkie, the body was seen by the petrol attendant and that he told Khosa and Nkoana about the body when they were on the way to work in the morning. They thus knew that the deceased had been killed before they arrived at work. He said that they were told by the second applicant to say that they had taken the deceased with them, that they had gone to certain places with him, and thereafter dropped him at his home. The places to which they had supposedly gone with him were Hammanskraal, Gwatema and Daveyton.
There was apparently information available that one of the robbers who had been killed during the million rand robbery, had friends in these places.
Mrs Emily Fourie gave evidence. She was General Secretary to the Motor Transport Union and she gave evidence about prior dealings that her union had had with Fidelity Guards as a result of the ill-treatment of persons who were members of the union.
She said that there was an ongoing problem with the investigation department which the second applicant was in charge of. There were complaints of assaults in 1985, again in 1987 where someone disappeared after questioning and in September 1989 when there was a complaint of torture and assault by various employees including the applicants, on one Jantive. As a result of that an internal enquiry was held by Fidelity Guards which she attended. Agreement was reached with Fidelity Guards as a result of which the letter, Annexure A, dated 7 November 1989 was written. She did not agree with the wording of this letter and a second letter was duly written, Annexure "I", which was signed by the Managing Director, a copy of which was handed to her.
It is clear from what is set out in the letter, Annexure "I", that Fidelity Guards were opposed to the type of questioning indulged in by the applicants in the day in question. Her evidence was challenged on behalf of the applicants to the extent that they alleged that the suspension only lasted an hour or so. The disciplinary enquiry referred to in the letter was apparently never held.
There was no evidence before us other than that of the applicants, which we do not accept, to show that there was any connection between the deceased and any political party or that the applicants at the time of the commission of the offence had any reasonable grounds to believe that this was so.
It is clear from the evidence that the applicants were in the habit of indulging in unlawful torture when interrogating persons and relied on their police connections to avoid any unfortunate consequences of such acts.
It is, in our view, equally clear that on the day in question, Oosthuizen overstepped the mark in shooting the deceased and that the decision was then taken to kill him to prevent him laying a charge against the persons concerned, that is the applicants and Oosthuizen.
It is clear on the evidence before us and at the trial that had the body of the deceased been examined at the time, it would have shown that he had been subject to prolonged torture as well as to the injuries which finally killed him.
We are accordingly satisfied that the applicants do not meet the requirements set out in the Promotion of National Unity and Reconciliation Act, Act 34 of 1995, n particular that they have not shown that the act committed by them, is an act associated with a political objective committed in the course of the conflicts of the past.
Nor does the act fall within the provisions of Section 20(2) and (3) in that it was not performed by any member or supporter of a publicly known political organisation or liberation movement on behalf of or in support of such organisation or movement, nor was it performed by any employee of the State in the course and scope of his duties and within the scope of his express or implied authority, directly against a publicly known political organisation or liberation movement, nor was it performed against any member or supporter of such publicly known political organisation or liberation movement bona fide in terms of the political struggle waged against such organisation.
Having regard to the provisions of subsection (3), we are satisfied that the act committed by the applicants does not meet the requirements of the section.
In particular we are satisfied that the motive of the second applicant in killing the deceased was to ensure that the deceased would not lay a charge against them and not to fulfil any political objective; this view is confirmed by the context in which the act was committed and the conduct of the applicants prior to the killing of the deceased; the object or objective of the act was primarily directed against a private individual to obtain information about the commission of a crime and having regard to this, the gravity of the act committed by the applicants far outweighs any benefit they or their employers may have obtained from getting such information; there is no suggestion that any order was given to the applicants to behave as they did; and finally, as we have already said, the proportionality of the act to the object pursued is such as to make it one totally unsuitable for the granting of amnesty.
In the light of these conclusions, we are satisfied that the applicants are not entitled to amnesty and their
APPLICATION IS ACCORDINGLY REFUSED: .
(Signed)
MR JUSTICE A.B.M. WILSON
MR JUSTICE H. MALL
MR JUSTICE B. NGOEPE
MR C. DE JAGER
MRS S. KHAMPEPE
Dated at Cape Town on this 22nd day of August 1996.
