DECISION
The three applicants in this matter are Humphrey Luyanda Gqomfa, who was born on 3rd October 1966, and who joined the PAC through AZANYO in 1983. He joined APLA in Botswana 1986 and received military training in Tanzania, Uganda and Egypt, finally returning to South Africa in 1991, when he went to the Transkei. The second applicant Vuyisile Brian Madasi was born on 20th November 1969, and joined the PAC in 1988 through AZANYO and joined APLA in 1992. He received military training in the Transkei. The third applicant, Zola Prince Mabala was born of 15th April 1969 and also joined the PAC through ANZANYO in 1987. He joined APLA in Tanzania in 1990 and underwent military training in Tanzania and Uganda before he returned to the Transkei in 1992.
The applicants were APLA cadres residing in the Transkei and they participated in various operations on behalf of APLA. Those which are the subject of the present hearing were committed in the Western Cape in December 1993 and were the subject of criminal charges when the three applicants were tried in the Cape Provincial Division of the Supreme Court on the following counts:
1. Robbery with aggravating circumstances of a motor vehicle on 17th December 1993.
2. Attempted murder at Nyanga Army Base on 17th December 1993.
3. Attempted murder at Lingelethu West Police Station on 17th December 1993.
4. Robbery with aggravating circumstances of a motor vehicle on 30th December 1993.
5. Murder at the Heidelberg Tavern on 30th December 1993 of Bernadette Sharon Langford.
6. Murder at the Heidelberg Tavern on 30th December 1993 of Lindy-Anne Fourie.
7. Murder at the Heidelburg Tavern on 30th December of Rolande Lucielle Palm.
8. Murder in Station Road, Observatory on 30th December 1993 of Nosolino Cequeira.
9. Attempted murder on 30th December 1993 of Benjamin Joseph Benjamin Joseph Broude.
10. Attempted murder at the Heidelberg Tavern on 30th December 1993 of Quintin Cornelius; Dave Deglon; Justin Julian Fouche and Michael January by shooting at them or exploding a rifle grenade.
11. Unlawful possession of firearms and ammunition. These being an R4 or R5 rifle, an AK47 rifle, ammunition for these weapons and hand and rifle grenades.
The three applicants were found not guilty on counts 1, 2 and 3 but guilty on the remaining counts and were sentenced to long terms of imprisonment. The applicants have applied for amnesty in respect of all counts on which they were charged, although there appears to be some uncertainty as to the date of the offenses. We are satisfied on a reading of the applicants and having regard to the evidence subsequently given by the applicants that the offenses in respect of which they sought to claim amnesty were those for which they were indicated.
The three applicants were, at the relevant time, resident in the Transkei and were given instructions by the leaders there to travel to Cape Town with a view to carrying out certain operations there. It appears from the evidence led that the first applicant, Humphrey Luyanda Gqomfa, was appointed commander of the unit. Gqomfa said that he received his instructions from Letlapa Mphahlele and Nsebe, both of whom were senior APLA leaders. On 13th November 1993 the second and the third applicants and Xolani Jantjie and Macebo were brought to his house by one Sichumiso Nonxuba, also a known APLA leader. This was the unit that was sent to Cape Town to carry out the attacks. He stated that he was the only person told what the targets were to be and that he only notified the other members of this unit on the morning of the attacks.
They were told to contact Siphiwo Mqweso, a named APLA member who was a member of the PAC Regional Executive Committee who would provide logistic support for them on arrival in Cape Town. Accommodation was arranged for them at different houses in the Cape by the Regional Organiser of the PAC Michael Siyolo. The group was later joined by one Theo Sibeko. Gqomfa explained that the order to attack the targets was given to him by Nonxuba and he was at the time that the Hiedelberg Tavern was a place frequented by members of the security forces. He said in his evidence that he did not question him about the command or the instructions as he was trained not to question instructions and commands given by the High Command. The other two applicants gave similar evidence. That is that their training was that they the foot soldier who were to carry out orders.
It is interesting to note that at their trail, where no mention was made to them of any political purpose or anything of that nature, Conradie J, the trial Judge, also came to the conclusion that the three applicants, who were then the three accused, were being used and that the attack on the Heidelberg Tavern appeared to be of a political nature. He went on to say:
"Klaarblyklik verskoon die grotere boosheid van die poppemeesters tot 'n mate die boosheid van hulle marionette, die beskuldigdes. Daarom is ek van oordeel dat die felste van alle strawwe waarvoor die Staat gevra het nie aangewese is nie."
Gqomfa explained that he went to look at the three targets with Macebo, who was the unit driver Siphiwo Mqweso who has already been referred to. The arms and ammunition used in all three attacks were supplied to them by members of the then PAC Regional Executive Committee, namely Theo Mabusela, Michael Siyolo and Richard Madala. These people knew that they were APLA soldiers in Cape Town to carry out certain operations but, they were not aware of when or where these operations
were to take place.
He gave evidence as to the first operation against the Nyanga Army Base on 17th or 18th December 1993 which involved Sibeko, Mabala, Madasi, Jantjie, Macebo and himself. The second operation against the Lingelethu West police Station took place on the same day after the attack on the army base and involved the same members of the unit. In so far as he knew at the time no-one was killed in those operations. On both occasions, that is on the 17th and 30th December, members of the same unit stole a vehicle which was to be used by them in carrying out the operation. It appears from their evidence that they did not intend to deprive the owners of the possession of the vehicle permanently and that after the operations had been completed they abandoned the vehicles.
The attack on the Heidelberg was a particularly brutal one. It appears from the evidence and the other information available to us that the Tavern was a place largely used by students and other young people and those who made use of its facilities were not only members of the white community, that is the people frequently referred to as "Settlers" by APLA members. Of the three young ladies killed only one was White, the other was Coloured and the third was an Indian.
It is quite clear that they intended to kill as many people as possible. The evidence was that nails had been glued on to one of the grenades to increase the lethal effect of the explosion. After their arrival at the Tavern shots were fired into the Tavern using automatic weapons and a rifle grenade was fired which did not explode. The attack took only a few minutes and the attackers then retreated to their car. Whilst they were driving away they gained the impression that shots were being fired at them by persons in the vicinity of the Tavern so they opened fore on persons they saw in the road and in the process killed Nosolino Cequeira, the deceased referred to in count 8. Shots were also fired in the vicinity of Benjamin Joseph Broude, referred to in count 9 who was working with Cequeira.
It does not seem possible to separate the two incidents. They were all part and parcel of the same attack in our view. There is some doubt as to whether Cequeira in fact fire shots in that no traces of powder were subsequently found on his hand. That may be so, but it is equally clear that the applicants gained the impression that they were being attacked at the time they fired the shots.
The applicants all gave evidence as to their participation in all the offenses they were charged with. Their evidence was accepted by the Committee.
The applicants also gave evidence as to the political objectives of APLA, which was basically to take back the land by force. They all made it clear that they did not see it as their function to question how the operations carried out by them would achieve this end. This was left to their leaders and they merely carried out orders as has already been said.
APLA has publicly accepted responsibility for this attack and in its submission to the TRC it stated:
"It should therefore not surprise anyone that targets like the St James Church, King Williams Town Golf Club, Heildeberg Tavern etc were selected. The leadership of the APLA takes full responsibility for all these operations. The APLA forces who carried out these operations followed the directives from their commanders and those directives were from the highest echelons of the military leadership. We do not therefore regret that such operations took place and there is therefore nothing to apologise for."
In an interview on 26th January 1997 Letlapa Mphahlele, who was APLA's Director of Operations said that APLA would accept responsibility for the attack on Heidelberg on 31st December 1993 and for ambushes on police and military bases.
There was opposition to the granting by survivors of the attack and by the relatives of the deceased. They were understandably all deeply shocked and horrified by what happened on the night in question.
Their feelings were very much the same as those shown by the victims who opposed the granting of amnesty in the St James Church application. Much as one sympathises with them and much as one understands their desire that the persons who killed their loved ones should be punished we are obliged to have regard to the provisions of the Act. Section 20(1) of the Act provides as follows:
"If the Committee, after considering an application for amnesty,is satisfied that
(a) the applicant complies with the requirements of this Act;
(b) the act, omission or offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of sub-section (2) and (3); and
(c) the applicant has made full disclosure of all relevant facts, it shall amnesty in respect of that act, omission or offence ...".
Section 20(2) provides:
"In this Act, unless the context indicates otherwise, "act associated with a political objective" means any act or omission which constitutes an offence or delict which, according to the criteria in sub-section (3), is associated with a political objective, and which was advised, planned, directed, commanded, ordered or committed within or outside the Republic during the period 1 March 1960 to the cut-off date, by
a) any member or supporter of a publicly known political organisation or liberation movement on behalf of or in support of such organisation in furtherance of a political struggle waged by such organisation against the state;
b) any member of a publicly known political organisation in the course and scope of his duties and within the scope of his express or implied authority;
f) any person referred to in (d) who on reasonable grounds believed that he was acting in the course and scope of his duties and within the scope of his express or implied authority.
It is submitted that the applicants have complied with the requirements of Section 20(1) and (2) that they were quite clearly acting on behalf of APLA, a publicly known political organisation and liberation movement which was engaged in political struggle against the State at that time. In this regard we refer to the reasons given in the St James Church decision. We are also of the view that the applicants did not act for personal gain or out of personal malice, ill will or spite directed against the deceased and the victims. It is quite clear that they had no personal knowledge of these people and that they had merely been sent there by their organisation to act on its behalf. The attack in the present case is very similar to the attack on the Crazy Beat Disco at Newcastle for which the applicants were also granted amnesty.
Amnesty is accordingly GRANTED to the applicants in respect of the eleven counts set out at the commencement of this decision.
The Amnesty Committee is of the opinion that the families of the deceased referred to in Counts 5, 6, 7 and 8 and the people that were injured referred to in Counts 9 and 10 and Gary Atkinson, the co-owner and manager of the Heidelberg Tavern are victims in relation to the incident and they are accordingly referred to Committee on Reparations and Rehabilitation in terms of Section 22 (1) of the Act.
SIGNED ON THIS THE 15TH DAY OF JULY 1998.
MALL J
WILSON J
ADV N SANDI
