DECISION
On the 15th of April 1986 Miss Anne Foster and Mr John Geyser were shot and killed on a farm known as Vlakkeland Farm. They were the maid and the gardener respectively. It was common cause that the three applicants, with two or three others, had gone to the farm on that day with the intention of stealing firearms. They met the owner of the farm, Mr Knobel, at the gate to the farm and after he had driven away they approached the farm buildings. They spoke to the gardener and then proceeded to the house. They asked the maid, who was inside, for a glass of water. She passed it through the window to the first applicant. The second applicant grabbed her and explained that they were looking for guns and did not intend to harm her, she screamed and the first applicant shot her. After the first shot, the third applicant ran to the gardener who asked him not to shoot him. The third applicant tied him up with wire and told the first applicant not to shoot the gardener. Then they broke open the door, entered the house and ransacked it. They found no firearms, but the first applicant took a box of bullets and the second applicant took a box containing jewellery and money, and a briefcase which was later abandoned. Somebody raised the alarm and they fled in different directions. As they were leaving the house, the first applicant shot the maid again as she was lying on the kitchen floor.
When the first applicant was outside the house, he shot the gardener who was lying tied up in the garden. This was not witnessed by the other two applicants.
The second and third applicants were arrested and charged with the murder of the two deceased referred to above. They were convicted on two counts of murder, housebreaking and theft and sentenced to fifteen (15) years' of imprisonment for murder and eight (8) years' of imprisonment for housebreaking on the 11th of May 1988. The first applicant was arrested at a much later date, was tried separately and was convicted on two counts of murder and one count of housebreaking. On the 11th of December 1990 he was sentenced to death on the two counts of murder and to ten (10) years' of imprisonment for housebreaking. On appeal the death sentences were altered to twenty five (25) years' imprisonment. All three applicants are now applying for amnesty in respect of these convictions.
All the applicants lived in Embekweni Township near Paarl and were politically active as members of PAYCO (Paarl Youth Congress) which was affiliated to the United Democratic Front (UDF). They said that there was what amounted to a state of war between AZAPO supporters and those belonging to the UDF and they believed that the police supported AZAPO in the struggle. As a result it became necessary for active UDF supporters to arm themselves so that they could defend themselves against attack by AZAPO supporters. In this regard they refer to what they called the "Tambo Text" and we were referred to an extract from a speech made by Oliver Tambo, then President of the African National Congress (ANC) in which he said:
"Pretoria has carried out its murderous plans to the extreme. We must now respond to the reactionary violence of the enemy with out own revolutionary violence. The weapons are there in white houses. Each white house has a gun or two hidden inside to use against us. Our mothers work in their kitchens. We work in their gardens. We must deliberately go out to look for these weapons in these houses. It is a matter of life and death to find these weapons to use against the enemy ... The lone policeman must be a target. He must be destroyed so that we can get his weapon. We must learn to lay ambushes for the armoured personnel carriers and the police cars that patrol the locations."
We accept that the applicants regarded it as necessary that they should follow these instructions and obtain firearms so that they could achieve what they regarded as their legitimate political objectives. We accept that it was in furtherance of this that they went to the farmhouse on the day in question. According to the evidence of the second and third applicants, which we accept, they went to Cape Town that day and exchanged the jewellery for two firearms. The money found in the jewellery box was used for the sustenance of members of their Defence Units. We are satisfied there was no personal gain. We are accordingly satisfied that all three applicants are entitled to amnesty in respect of the housebreaking charge.
We turn now to the murders. It is clear from the evidence that there had been no prior discussion as to the killing of any person during this operation. There was no suggestion in the evidence that this was regarded as a political objective within their express or implied authority. The second and third applicants had approached the first applicant to obtain a firearm to be used to protect themselves. They both testified that they had not expected anyone to be killed. The first applicant in his evidence said the shooting had not been planned but things happened very quickly. The reason advanced by him for the shooting was that it was done to prevent anyone identifying them. it must be borne in mind that he shot the maid before any serious crime, that is any crime other than common assault, had been committed. The first applicant also said they went there looking for weapons and if they had found anyone there, they would have killed them. If we accept this, it means that he went to the farm with an intent to kill anyone they found there. He shot the maid before any guns were found and the main and the gardener after it became clear that there were no guns there. This intent to kill was flatly contradicted by the second and third applicants who said that there was never an intention to kill anyone and this was evidenced by the fact that the third applicant asked that the gardener should not be shot. They were both shocked by the shooting of the maid and when they learned of the shooting of the gardener, the second applicant said he became unconscious because he did not expect anyone to be shot. As they understood the "Tambo Text" they were authorised to take weapons, but not to kill.
The second and third applicants explained that they did not raise the question of political motivation at their trial as they felt that it could only prejudice them in the circumstances existing at that time. They did not thus raise at their trial what they believed they were authorised to do by the "Tambo Text" or similar matters. This would of course seriously affect the judgment of the Trial Court as to common purpose and the reason therefore. We are satisfied on the evidence that they did not intend at any stage to commit an act which did not fall within their implied authority as members of PAYCO and allies of the UDF and accordingly the ANC.
The same does not apply to the first applicant. Although there was, on his own evidence, no prior agreement to shoot or kill anyone, he himself decided to do so on the spur of the moment. This however, was not an end to the matter, he again shot the maid as she was lying on the floor and the gardener who was lying immobile on the lawn. The people he shot were the very people referred to in the "Tambo Text"; the mother working in the kitchen and the gardener working in the garden. There was no need to kill these people in the furtherance of any instruction from the ANC or elsewhere. The killing was justified by the applicant on the ground that he did not want the deceased to identify him. This is not, in our view, an act which falls within the provisions of Section 29(1)(b) or 20(2) of the Promotion of National Unity and Reconciliation Act, No 34 of 1995. We are further of the view that the killing of these two innocent people was so disproportionate to the aims sought to be achieved, that is to obtain arms with which to defend themselves, that it is not an act associated with a political objective for which amnesty should be granted.
Our decision is accordingly:
1. All three applicants are
GRANTED AMNESTY: in respect of the
HOUSEBREAKING: at Vlakkeland Farm on the 15th April 1986.
2. The FIRST APPLICANT'S application in respect of the
MURDERS: Miss R. Anne Foster and Mr John Geyser on the 15th of April 1986,
IS REFUSED: .
3. The
SECOND AND THIRD APPLICANTS ARE GRANTED AMNESTY: in respect of the
MURDERS: of Miss R. Anne Foster and Mr John Geyser on the 15th of April 1986.
SIGNED ON THE 17th DAY OF JULY 1997.
(Signed)
MALL, J
WILSON, J
MS S. KHAMPEPE
