DECISION
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act, 34 of 1995 (the Act).
The facts in this application have been summarised in the minority decision of Advocate De Jager SC, and it is not necessary to repeat them in detail. We concentrate on the reasons why we dismiss the application for amnesty in respect of murder.
At the end of November 1990 the Afrikaner Weerstandsbeweging (AWB) adopted the so-called White-by-night policy in terms of which black people were denied the right to be in the then so-called white areas after 21H00.
On this particular day the applicant and his co-assailants were on patrol in the streets of Belfast. Their objective was to enforce this so-called White-by-night policy of the AWB.
When they came across the deceased, a black person, they forcefully loaded him into their bakkie, to get him out of town. They assaulted him and then off-loaded him at a cemetery just outside town. This cemetery was between a black residential area and Belfast. Applicant states that after off-loading the deceased, the deceased argued with them and attempted to run back into town. As a result thereof, they further assaulted him and he died as a result of the injuries sustained. The applicant admits intention in the form of dolus eventualis.
For the reasons given by Advocate De Jager SC, we agree that amnesty be granted in respect of the offence of abduction only. We refuse amnesty for the reasons given below, in respect of the murder.
In determining whether or not an act is associated with a political objective, we must, amongst others, consider whether or not the act in question is out of proportion with the objective pursued; see Section 20(3)(f) of the Act. In our view, the killing of the deceased constitutes an act grossly out of proportion with the stated objective of the AWB, namely, keeping blacks out of the town after 21H00. The killing of the deceased is therefore not an act associated with a political objective. Moreover the contention that the deceased was killed because he provoked an argument, that he strongly protested against being driven out of town and also that he actually tried to run back into town when he was so close to a black township, is so highly improbable that it can safely be rejected as false. How could the deceased dare argue and protest against three belligerent trouble seekers? How could he dare do so in the destitute of a cemetery when he had not done so in the relative safety of a town, albeit a not-so-friendly one? How could he dare provoke an argument when he had already been assaulted before being off-loaded at the cemetery? Why should the deceased to so obstinate in the face of such hostility and elect to run back into town when he could have run into a nearby black township? How could he hope to outrun a bakkie back to exactly the same situation which had invoked the wrath of his attackers? In any event, even if what the applicant has said were true, it would not change the fact that their conduct was grossly out of proportion to the objective sought to be achieved. It is noteworthy that the applicant did not attempt to say that the killing was in accordance with the policy of the AWB. On his own version, the killing was not part of the plan and if his version is correct, then the deceased became obstinate and pertinaciously attempted to go back into town, it means they killed him simply because he would not listen. At that level, there would be nothing political about the murder.
Furthermore the applicant's motivation that the ultimate objective of the AWB was to intimidate black people and discourage them in their quest for political take over, becomes senseless when one considers that had the applicant had his way, the killing as well as the reasons therefore would have remained unknown. While a surviving victim of abduction would be able to warn other black people to stay out of the town, a dead one would obviously not be able to do so. This is a further indication that no political objective was being pursued at the time of the actual killing.
Finally, we are of the view that this matter differs substantially from the one referred to by our colleague. We do not intend going into a discussion in respect thereof as we believe this would be apparent from a reading of both decisions. In the circumstances, the following decision is made:
1.
AMNESTY IS GRANTED: only in respect of the abduction of George Ngomane;
2.
AMNESTY IS REFUSED: in respect of the murder of George Ngomane.
SIGNED AT CAPE TOWN ON 21st OF NOVEMBER 1997.
NGOEPE, J
KHAMPEPE, MS
AC/97/0069
TRUTH AND RECONCILIATION COMMISSION
AMNESTY COMMITTEE
APPLICATION IN TERMS OF SECTION 20(1) OF THE PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT, NO. 34 OF 1995.
HENDRIK JOHANNES SLIPPERS APPLICANT
(AM 1002/96)
DECISION
The applicant applies for amnesty in regard to the abduction and murder of George Nkomane on 13 February 1991 at Belfast. The applicant was prosecuted and sentenced as follows:
For the abduction two years' imprisonment; for the murder 12 years' imprisonment of which two years' was suspended for five years on certain conditions. The sentences were to run concurrently.
The evidence is not in dispute and can be summarised as follows: The applicant is 35 years of age and was towards the end of 1990 promoted to Acting Commandant of the Afrikaner Weerstandsbeweging (AWB) for the Belfast-Carolina area. His Commander was one Volshenk while the AWB Chief Commander for the Eastern Transvaal, as the area was then known, was Colonel Albert Saunders. A meeting was held during November 1990 and Commandant Volshenk instructed the AWB members to implement the policy "White-by-night". This amounted to the reimplementation of the curfew laws of the apartheid era which prohibited blacks to be in so-called white areas without a permit, after 21H00. Blacks present in the white townships after 21H00 should be told to leave and if they refuse, they should be removed, even by force if necessary.
Affidavits by one Brigadier Kloppers and a certain John Wayne Rautenbach confirming the so-called White-by-night policy of the AWB and the instructions to carry it out, were handed in. The Attorney of the applicant informed the Committee orally however, that Mr Eugene Terreblanche the leader of the AWB, denied the White-by-night strategy. He was not prepared to file any affidavit. Saunders and Volshenk could not personally be traced, but notices were sent to their last known addresses, notifying them that they may be implicated during the hearings.
The applicant stated in evidence that he and his co-accused had taken liquor before they went on patrol. The applicant stated however, that he was not drunk and knew at all times what he was doing and that the intake of alcohol did not influence his judgment.
According to the applicant he and three fellow members of the AWB, patrolled the streets of Belfast after 21H00 to implement the aforementioned policy of White-by-night. They saw the deceased, George Nkomane, walking in the street, confronted him and against his will, loaded him on to the bakkie. They drove with the intention to take him out of town and to off-load him on the way to the black township. While driving, the deceased protested and indicated that he would return to the so-called white township of Belfast. This led to an assault on him by the applicant and one of the other members. They off-loaded the deceased outside the Belfast township but he started running back towards the white area.
They pursued him, caught him and the applicant assaulted him by fisting him whilst his co-accused kicked and jumped on the deceased after he fell down as a result of the applicant's assault. The applicant stated that at the beginning there was no intention to assault but that things went wrong, an argument ensued and as a result of the deceased's protest against the abduction, the brutal assault followed. Although there was no intention to kill the deceased, he realised afterwards that he should have foreseen that the assault could have resulted in the death of the deceased.
The Court in fact found that there was no direct intent to kill, but that the applicant is guilty on the basis of dolus eventualis. The Court further found that the offence was politically coloured. It must be pointed out that the applicant pleaded guilty and handed in a statement in which, according to him, the full facts about the AWB's involvement were not revealed for prevailing political reasons at the time.
The Committee finds that the application falls within the ambit of the Act and that technically, the requirements laid down by the Act were met. The Committee is also of the opinion that a full disclosure has been made. In so far as it may be relevant, the applicant showed remorse and a report of a Social Worker supports this.
The abduction, on the evidence before the Committee, was an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of Section 20(2)(a) and (d) and (f) of the Promotion of National Unity and Reconciliation Act, 34 of 1995.
The question then arises whether the murder which flowed from the abduction, would also fall within the same ambit. It was argued on behalf of the applicant that the two offences were interrelated and cannot be totally separated from each other. The assault was carried out in order to make the abduction from the white area effective and to prevent the deceased from carrying out his intention to negate the White-by-night policy of the AWB. The applicant averred that it was carried out to intimidate blacks into slowing down the process of change or stopping it completely. He also stated that his action (to remove blacks from the white townships) was to prove that the whites were taking a stand against change and also to show the government that they were not satisfied with what was taking place in the country at the time. When the person was picked up, it never occurred to him that the person could be seriously or fatally injured, but the whole operation went wrong when the deceased told them that he would return to the white area and an argument followed resulting in assaults and the deceased running back towards the town. It was submitted on behalf of the applicant that the assault could not be separated from the abduction, and that the assault itself and its consequences were therefore associated with the original political objective.
The Committee previously had occasion to hear how an abduction with no intent to kill, ultimately got out of hand and lead to the intentional killing of the victim. The Committee then found that the ultimate killing, although carried out because of a fear for arrest, was interlinked and should not be separated from the political motivated abduction.
Vide applications numbers 80/96 and 81/96, where the applicants and their associates killed a defenceless 83 year old man in the most brutal way after they had abducted him. As pointed out the applicants originally abducted the victim to get hold of the key which symbolised the power governing the community. When they realised that he hadn't had the key on his person, they decided to kill him. The reason for killing being their fear of arrest after he had recognised them.
In the present application, things also got out of hand after the victim refused to leave the white township and started to run back towards it. Contrary to the previous applications, they didn't intend to kill him, but they should have foreseen that that could be the result of the assault that followed. Seeing, however, that the one offence flowed out of the other and the one being interlinked with the other, the one cannot be seen as totally separated from the politically motivated abduction. I am of the opinion that
AMNESTY SHOULD BE GRANTED: as applied for.
SIGNED AT THIS 3rd DAY OF DECEMBER 1997.
ADV DE JAGER, SC
