DECISION
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No.34 of 1995 ("the Act").
The Applicants who are currently serving long terms of imprisonment were at all material times members of the Pan African Congress of Azania (PAC) and the Azanian Peoples Liberation Army (APLA), with the exception of Malevu who was only a member of the PAC and not APLA.
On the evening of 14 February 1994 Thanda and Shiceka attacked with firearms the Crazy Beat Disco at Newcastle which was frequented by predominantly white patrons. As a result of the shooting, one Gerbrecht Salomina Van Wyk was killed and at least two guest were injured. Malevu had previously transported the arms which were used in the attack from the Transkei to Newcastle.
It is in respect of this incident that the applicants have applied for amnesty. The application is unopposed. The matter has been investigated by the Investigative Unit of the TRC and the Committee has heard evidence in support of the application.
Walter Falibango Thanda
Thanda says he was brought by his commander code named "Power" from Port St Johns to Umtata where, for the first time, he met Shiceka. eventually, they were to go to New Castle, where they would find the weapons. In Newcastle they were of course to meet with Malevu. Thanda's home was in Molteno; the only reason he went to Newcastle was to carry out this kind of operation. These were instructions from "Power". In fact, Thanda was the commander of the small unit which planned and carried out the attack. He says he would keep on giving reports to "Power" from time to time so as to keep him up to date with the developments. Asked whether he did question the order, he said it was not for one to do so; if one had any question to ask, it would only be after the execution of instructions. Apart from the fact that as a soldier he had carried out instructions, he was caused to join APLA by the political conditions under which he lived and grew up. He regarded the operation as unsuccessful because only one person was killed.
Apart from stating that he acted on orders, he therefore justifies the attack, and the selection of the targets, on the same basis as applicants Bongani Golden Malevu and Andile Shiceka.
Andile Shiceka
He received his military training outside the country. He was given orders in Umtata to go to Newcastle for this kind of operation. Thanda was to be his commander in this operation. Asked why he had to attack white people, he said he was merely following orders; to him defying orders would have amounted to "mutiny". Asked whether there had been a shift of policy on the part of the PAC or APLA from attacking "hard" targets to attacking "soft" ones, he said that was a question to be answered by his seniors; for his part, all he had to do was to carry out the order. He was told that he would find the arms in Newcastle; he did not know how they got there. He gave of his personal involvement, how the attack took place, what happened thereafter until their arrest the next day. Apart from stating that he acted on orders, he gives the same explanation given by applicant Bongani Golden Malevu as to why white people were targeted. Although he regrets the attack, he did not at the same time regard it as a success as only one person was killed. He says the whites were the only people who were the oppressors; that is why they were targeted. Accordingly he denies that his action smacked of racism.
Bongani Golden Malevu
He says he was told buy his high command that there was to be an operation in Newcastle. He was supplied with arms in Umtata, which he took to Newcastle where he hid them. He was aware that some reconnoitring was being done. He helped transport the other applicants to a point where a vehicle was forcefully taken from its owner, which was eventually used in the attack. Thereafter he also helped with transporting the other applicants and with hiding the weapons. He says they were ordered to identify as a target, a place frequented by white people. They had initially planned to attack a restaurant, but, as here were a number of black people in the vicinity, decided instead to attack Crazy Beat Disco. The latter, according to them, was frequented by white people. He says the attack on white people was because they were regarded as political oppressors; they had to fight them in order to get their land back. If they attacked white people, the government would take then seriously; the white people were the ones who could go to the government to urge it to change. He says that as a member of APLA, he was never told that the armed struggle had been suspended, and, at any rate, he merely carried out orders. He says at a meeting of the PAC in 1993 at Umtata held before the incident, a resolution was passed, after a heated debate, not to suspend the armed struggle.
Was this an APLA operation?
Of importance here is, amongst others, the fact that the applicants were strangers to each other until they met for the purpose of carrying out this operation; moreover, two of them did not live in Natal at all. this gives credence to their story that they were brought together by their military commander "Power" who was known to all of them. If this was not a planned military operation by APLA, what possible motive was there on the part of these people to go to Natal and attack a discotheque? The victims of the attack were not known to them and they derived no personal benefit from the attack. How can strangers come together and plan such a thing? How could they possibly trust each other to that extent, and for what possible benefit? The answer to these
and similar questions leads to the inescapable conclusion that the operation must have been ordered and coordinated by APLA.
Armed struggle as a possible of the PAC/APLA
The application had to be considered against the question whether or not the organisation to which the applicants belonged, did have as its policy violent struggle. It is common knowledge that the PAC did have armed struggle as its policy, hence the creation of its military wing. The applicants stated that at its meeting in Umtata before the incident (a meeting at which Malevu was given the weapons used) the PAC passed a resolution not to suspend the armed struggle; they also say that APLA was at any rate autonomous on military matters.
Shiceka went further, sadly, to say that there had in the past been attacks on white people; he mentioned this to refute the suggestion that the applicant acted on their own and that they were prompted by a feeling of racism.
The fact that he PAC and/or APLA had openly adopted the policy of violent struggle brings the applicants within the category of applicants referred to in section 20 (2) of the Act; it also goes a long way towards determining whether or not the act was associated with a political objective. Regard being had to the explanations given by the applications for the attack, the nature thereof as well as the circumstances
under which occurred, it is our view that the attack was an act associated with a political objective.
The weapons and the ammunition were possessed for the purpose of carrying out military activities at the behest of APLA; therefore their illegal possession by the applicants at various times was also an at associated with a political objective.
Conclusion
It is our conclusion that the applicant have met the requirements for amnesty Accordingly, amnesty is hereby granted to all the applicants as follows:
Andile Shiceka
Amnesty GRANTED in respect of all offences the applicant was convicted of, namely,
a) Murder: The killing of Gerbrecht Salomina Van Wyk at Crazy Beat Disco, Newcastle, on or about 14 February 1994.
b) Attempted murder: Attempt at or near Crazy Beat Disco on or about 14 february 1994, Newcastle, to kill members of the public there present.
c) Contravention of section 32(1)(a) read with sections 1,39 and 40 of Act 75 of 1969 (unlawful possession of machine guns, to wit, three R4 and one R5 machine guns) on or about 14 February 1994 in the district of Newcastle and/or Dannhauser.
d) Contravention of section 32(1)(b) read with section 1, 39 and 40 of Act 75 of 1969 (unlawful possession of grenades, to wit, four M26 hand grenades and one M791 rifle grenade) on or about 14 February 1994 in the district of Newcastle and/or Dannhauser.
Walter Falibango Thanda
Amnesty GRANTED in respect of all offences the applicant was convicted of, namely,
a) Murder: The killing of Gerbrecht Salomina Van Wyk at Crazy Beat Disco, Newcastle, on or about 14 February 1994.
b) Attempted murder: Attempt at or near Crazy Beat Disco on or about 14 february 1994, Newcastle, to kill members of the public there present.
c) Contravention of section 32(1)(a) read with sections 1,39 and 40 of Act 75 of 1969 (unlawful possession of machine guns, to wit, three R4 and one R5 machine guns) on or about 14 February 1994 in the district of Newcastle and/or Dannhauser.
d) Contravention of section 32(1)(e) read with section 1, 39 and 40 of Act 75 of 1996 (unlawful possession of ammunition intended to be fired from a machine gun, to wit, 659 5.56 x 45mm cartridges) on or about 14 February 1994 in the district of Newcastle and /or Dannhauser.
e) Contravention of section 32(1)(b) read with sections 1, 39 and 40 of Act 75 of 1969 (unlawful possession of grenades, to wit, four M26 hand grenades and one M791 rifle grenade) on or about 14 February 1994 in the district of Newcastle and/or Dannhauser.
f) contravention of section 36 read with sections 1, 39 and 40 of Act 75 of 1969 (unlawful possession of ammunition, to wit, two 9mm short cartridges, two. 38 special cartridges and one .22 cartridge) on or about 14 February 1994 in the district of Newcastle and/or Dannhauser.
g) Contravention of section 2 read with section 1, 39 and 40 of Act 75 of 1969 (unlawful possession of an arm, to wit, a 9mm pistol) on or about 15 February 1994 at or near Madadeni in the district of Newcastle.
h) Contravention of section 36 read with sections 1, 39 and 40 of 1969 (unlawful possession of ammunition, to wit, seven 9mm short cartridges) on or about 15 February 1994 at or near Madadeni in the district of Newcastle.
Bongani Golden Malevu
Amnesty GRANTED in respect of all offences the applicant was convicted of, namely,
a) Murder: the killing of Gerbrecht Salomina Van Wyk at Crazy Beat Disco, Newcastle, on or about 14 February 1994.
b) Attempted murder: Attempt at or near Crazy Beat Disco on or about 14 February 1994, Newcastle, to kill members of the public there present.
c) Contravention of section 32(1)(a) read with sections 1, 39 and 40 of Act 75 of 1969 (unlawful possession of machine guns, to wit, three R4 and one R5 machine guns) on or about 14 February 1994 in the district of Newcastle and/or Dannhauser.
The committee is of the opinion that Gerbrecht Salomina Van Wyk and/or her dependants, as also the people injured, are victims in relation to the incident and they are accordingly referred to the committee on Reparation and Rehabilitation in terms of Section 22(1) of the Act.
SIGNED ON THIS THE 3RD DAY OF JUNE 1998.
JUDGE B M NGOEPE
ADV D POTGIETER SC
ADV N J SANDI
