DECISION
The five applicants were convicted in the Transkei Supreme Court of:
1. Murder in contravention of Section 84 of Act 1983 in that on or about 6 March 1944 at the Flagstaff Police Station they wrongfully and intentionally killed and murdered Barnabas Jaggers, a 33 year old male.
2. Attempted murder in contravention of Section 31, read with Section 84 of the above act in that at the same time and place they wrongfully and intentionally attempted to kill and murder Wele Edmund Nyanguna and Mzingizi Abednego Mkhondweni, both male adults.
3. Robbery in contravention of Section 155 (1) of the said at the above mentioned place and time, in that they unlawfully and intentionally stole one Nissan LDV and one metal trunk, containing R140,67 cash, key, two R1 rifles, one R4 rifle and rounds of ammunition and a further 3 R4/R5 rifles, the property of or in the lawful possession of the Transkeian Police by using violence.
The facts leading to the convictions and which formed the basis of the applicants applications for amnesty can be summarised as follows:
Applicants 1 and 5 were members of the Inkhata Freedom Party while applicants 2,3,4 were members of Afrikaner Weerstandbeweging. Applicant 3 had dual membership of both organisations.
The applicants were requested by Patrick Pedlar, who was the commander of the AWB in the area from Umkomaas to the Transkei and Robin Shoesmith, a member of the IFP's self protection units in their political was against the ANC. The Flagstaff station was considered an easy target for this purpose because according to information obtained there would only be one policeman on duty on a Sunday night and he could easily be overwhelmed.
The operation was planned for the night of 5/6 March 1994 but unbeknown to the applicants the police was tipped-off, allegedly by Pedlar. Reinforcements were sent to the police and what was foreseen as an easy task, became a shoot-out in which Mr Jaggers was killed and Messrs Nyanguna and Mkhondweni wounded before the firearms could be robbed. In the same process a police vehicle was robbed by some of the applicants to get away.
Before the start of the hearing and after the matter had already been set down for hearing the first applicant was killed in a violent alteration. His application could therefore not be proceeded with.
Section 20 (7) (c) of the Promotion of National Unity and Reconciliation Act, No.34 of 1995 may however be relevant in so far as civil claims against his estate may be instituted. there is nothing in the evidence pointing to a different decision in his regard than the conclusion reached in the other applications.
Affidavits by Messrs Mkhondweni, Tshwane and Dlamini were filed in opposition to the applications. It was argued on their behalf and on behalf of the deceased that amnesty should not be granted because the applicants did not disclose who actually killed the deceased and wounded the other victims. In this regard the evidence was:
Brand, the 5th applicant, had no gun at the stage that the shooting took place, Christie had a revolver and he shot and wounded Mr Mkhondweni. Howell, the 4th applicant testified that he is of the opinion that he wounded Mr Nyanguna because he fired in his direction. He also testified that it is not impossible that he might have shot Mr Jaggers but considers it to be improbable because Mr Jagger's body was found in the rear of the bus whilst he was shooting towards the front of the bus. He is of the opinion that it is more probable that Mr Jaggers could have been shot by Shoesmith.
All the applicants testified that it was dark and that the others could not observe who shot in the direction. Only the marksman could testify in which direction they shot. Messrs Shoesmith and Roy Lane who also participated in the attack did not testify. They were state witnesses in the prosecution of the applicants and were indemnified at the end of the trial.
In conclusion, the committee after considering the application, all the affidavits filed and the evidence, is satisfied that:
a) the applications comply with the requirements of Act 34 of 1995;
b) the offenses to which the applications relate, are acts associated with a political objective committed in the course of the conflicts of the past
c) that the relevant facts relating to the particular offenses have been disclosed, bearing in mind the circumstances prevailing on the scene during that night.
The committee therefore grant amnesty to applicants 2,3,4 and 5 in respect of the offenses referred to under paragraphs numbered 1,2 and 3 at the outset.
As far as the deceased applicant, Mr Zulu, is concerned the committee refers to what has been said about the application and the relevance of Section 29 (7) (c) of Act 34 of 1995 herein before.
SIGNED ON THIS THE 2ND DAY OF JUNE 1998.
JUDGE H MALL
ADV C DE JAGER
DR W M TSOTSI
