DECISION
The applicant apply for amnesty in respect of 11 counts of murder, 58 counts of attempted murder, the unlawful possession of a machine gun and unlawful possession of ammunition. All these offenses were committed on the 25th July 1993 at St James Church. Only the first applicant was convicted of the offenses and sentenced to 23 years imprisonment.
The fourth applicant, Letlape Mphahlele did not attend the hearing and his application was accordingly removed from the roll.
These applicants are opposed by Mr A Ackerman whose wife was killed in the attack, Lorenzo Smith and Mitri Makogon who are victims in terms of the Act. Both Messrs Ackerman and Smith gave viva voce evidence in opposition of the applications on the basis that the applicants have not fully disclosed their participation in the attack and further that the offenses were disproportionate to the political objectives of the PAC.
The first applicant testified that in 1993 he became a member if a Unit of APLA under the command in Vusi who went away three months prior to the St James incident: When Vusi left, Sichomiso Lester Nonxuba, now deceased, took over the command of the Unit. Before Vusi left he informed the first applicant that there would be an attack but did not disclose the target nor the date when the attack would be launched.
The first applicant averred that it was not the policy of APLA to involve the operative in the selection of targets that being the prerogative of the local commander. On the 25th July 1993, he met Nonxuba and the other two applicants in Cape Town. Nonxuba instructed the first and the third applicants to get hold of a motor car to be used in the operation. They did so by stealing a car at gun point after firing a shot in the air to scare the owner thereof.
They thereafter collected Nonxuba and the second applicant at the taxi rank. It was only whilst they were driving in the stolen vehicle that Nonxuba for the first time gave the applicants specific orders for the execution of this particular operation. He handed an R4 rifle and a hand grenade to the first applicant and ordered the first applicant to accompany him inside the church, and to throw the hand grenade once he was inside the church. Nonxuba further ordered the first applicant to shoot indiscriminately at the congregation once inside the church using the R4 rifle. The first applicant testified that in compliance with this order he used his full R4 magazine of about 31 rounds of ammunition to shoot at the congregation.
He further testified that as an APLA operative he was trained not to question orders but to obey them at all times and that the slogan "One settler one bullet" meant that "any white person in South Africa was regarded as a settler and if we came across any settler during our operation, they had to be killed or injured".
When it was pointed out to the first applicant that at the time of the attack political parties including the PAC were participating in the negotiations for the political future of the country, he said "I know that, but APLA as the military wing of the PAC never had instruction from the political leadership of [the] PAC not to use arms, that is why soldiers of APLA were still busy fighting and shooting".
On the 24th July 1993, he met Nonxuba and the third applicant and was ordered to prepare 4 petrol bombs. On the next day, being the day of the attack he met Nonxuba at a taxi rank where they were picked up by the first and the second applicants in a stolen vehicle. Once they were inside the car Nonxuba gave them orders. The second applicant was ordered to stay in the car with the third applicant whilst first applicant and Nonxuba went inside the church; and he was also ordered to throw petrol bombs into the church as soon as Nonxuba and the first applicant came out. He however did not throw the petrol bombs because when Nonxuba and first applicant came out of the church one member of the congregation started firing at them and they had to quickly leave the scene.
The second applicant also testified that he was trained to obey orders from commander at all times and not to question them; that most of the leaders of white churches justified apartheid on religious ground and practised apartheid by refusing membership to black persons in their congregation and that in any event he did not select the target but had only ben ordered to execute the operation by his commander.
The third applicant was also a member of the PAC and an operative of APLA. He stayed in the Transkei and received orders on the Tuesday before the attack to travel to Cape Town where he met Nonxuba and the other applicants. He confirmed the evidence of the other applicants in so far as it related to the theft of the car and the attack at the church. Most significantly he was the driver of the stolen car that was used during the operation.
It was contended by the objectors that the attack on St James was not an APLA or PAC operation as it was denied by APLA's director of information Majozi at that time and further that Barney Desai of the PAC at that time accused the third force of mischievously connecting the attack to PAC's military wing in order to derail negotiations which were then underway, and to which the PAC was a participant.
In considering this contention we had to be mindful of the fact that many political parties or liberation movements might have denied any involvement in an incident because they might have considered it strategically and politically wise and expedient to do so, and that accordingly the alleged utterances must be viewed against the political background that existed at the time.
In our view what is of cardinal importance is the fact that both the PAC and APLA have acknowledged in their submissions to the TRC in 1996 and 1997 respectively that the St James attack was one of the authorised operations carried out by APLA.
What is instructive is to consider whether the applicants meet the requirements of Section 20(1) of the Act or not.
Having regard to the evidence adduced before us, the Committee is satisfied that the applicants were members of APLA the military wing of a publicly known liberation Movement called the PAC. We are further satisfied that the applicants acted on the orders of the late Nonxuba, who was the local Commander of APLA. There is no evidence before us to suggest that Nonxuba was not a commander of the applicants. We accept that the applicants did not select St James Church as a target and that it was not their function to do so; that they merely obeyed the order of their Commander Nonxuba. Our findings are based on both the PAC and APLA's submission to the TRC on this point that "The actual targets were decided by local commanders" and further that "the APLA forces who carried out these operations followed the directives from their commanders".
We have also considered the relationship between the act, omission or offence and the political objective pursued and in particular the directness and proximity of the relationship and the proportionality of the act, omission or offence to the objective pursued. In this regard the applicants were each questioned on how the attack on the St James Church could return the land to the African people, which was their avowed objective.
In response to this inquiry Mlambisa testified that "The killing of white people would put pressure on the white government to return the land to the African people", whilst Mkhumbuzi said if there was violence in white areas the government would pay attention to their grievances of returning the land to the African people. Makoma's testimony was simply that they would have continued using the bullet until the government took their demand for the return of their land seriously.
Moreover it is trite that the PAC pursued a violent and armed struggle in the furtherance of its political struggle, and to that end APLA was formed as its military wing pertinently in order to achieve that objective. We therefore accept that the applicants bona fide believed that by executing the orders they were advancing the struggle which the PAC was waging the NP government for the return of the land to the African people. In fact APLA in its submission to the TRC on the 7th October 1997 has put this issue beyond doubt that its mandate was to organise and lead the armed struggle in such a way that its military operations served its political objectives and achieved anticipated results. They submitted that they perceived "every white South African as a pillar of apartheid protecting white South Africa from the Black danger", because the government was engaged "in the process of arming (of) the entire White South African Society. This militarisation, therefore, of necessity made every white citizen a member of the security establishment". Consequently APLA "did not have the burden of problem of the so called soft or hard target. In all honestly the soft or hard target did not exist in our vocabulary and it was a foreign concept".
It was therefore in this context that the St James was selected as a target as it was located in a predominantly white area.
The weapons and ammunition's that were possessed by the applicants were supplied by APLA and were possessed by the applicants for the purpose of carrying out this operation. Such possession was therefore an act associated with a political objective.
In the light of the aforegoing we are therefore satisfied that all the requirements of Section 20 (1) of the Act have been complied with.
Amnesty is hereby granted to Gcinikhaya Makoma, Bassie Mzukisi Mkhumbuzi and Tobela Mlambisi in respect of the following offenses:-
1. Murder committed on the 25th July 1993 at the St James Church in the district of Wynberg of the following persons
1.1 Kayl Andrey
1.2 Karamjin Oleg
1.3 Guy Cooper Javens
1.4 Richard Oliver O'Kill
1.5 Varaksa Velentin
1.6 Gerhard Dennis Harker
1.7 Wesley Alfonso Harker
1.8 Denise Gordon
1.9 Mirtle Joan Smith
1.10 Marita Ackerman
1.11 Pavel Valuet
2. 58 Counts of attempted murder committed on the 25th July 1993 at the St James Church in the district of Wynberg.
3. Contravention of Section 32(1), read with section 1 and 39 of Act 75 of 1991 (unlawful possession of armament, to wit machine guns and/or ammunition to be fired from the machine gun) during July 1993 in the district of Wynberg and/or in the district of Mitchell's Plain.
4. Contravention of Section 2, read with sections 1,39 and 40 of Act 75 of 1969 (unlawful possession of firearms, to wit a gun of 9mm calibre and/or other firearms, without holding a valid license to posses such gun or firearm) during July 1993 in the district of Wynberg and/or in the district of Mitchell's Plain .
5. Contravention of section 36 read with sections 1,39 and 40 of Act 75 of 1969 (unlawful possession of 9mm rounds of ammunition without being in lawful possession of a firearm capable of firing that said ammunition) during July 1993 in the district of Wynberg and/or in the district of Mitchell's Plain.
SIGNED ON THIS THE 11TH DAY OF JUNE 1998.
HUSSEN MALL, J
ANDREW WILSON, J
BERNARD NGOEPE, J
SISI KHAMPEPE (MS)
ADV CHRIS DE JAGER (SC)
