DECISION
James Wheeler (herein referred to as "the first applicant") applies for amnesty in respect of four offences, namely, murder, attempted murder, unlawful possession of a firearm and unlawful possession of ammunition. Cornelius Rudolph Pyper (herein referred to as "the second applicant") applies for amnesty in respect of the offences of murder and attempted murder.
The incident which gives rise to these applications occurred on 27th April 1994 in the district of Westonaria. It is common cause that about 20h00 on 27th April 1994, which was the day on which the first democratic elections in South Africa commenced, both applicants were in a motor vehicle which was being driven by the first applicant on the R28 road between Westonaria and Randfontein. The first applicant was in possession of a loaded .22 rifle and a shotgun. He cocked the shotgun and handed it to the second applicant who then fired a shot at the driver of a vehicle which they were driving alongside. The shot caused the death of Viyana Kenneth Papiyana, the driver of the other vehicle, and resulted in Godfrey Madoda Papiyana, a passenger being injured.
Both the applicants testified that at the time of the incident they were supporters of the Konserwatiewe Part and were members of the Afrikaner Weerstandsbeweging (herein after referred to as "the AWB").
Although the applicants could not produce any documentary proof of their membership of the AWB, it is clear that if they were not members, they were at the very least, active supporters of the AWB. That this is so it is apparent not only from their own evidence but also that of Gert Johannes Jacobus du Bruyn, a member of the AWB, who confirmed that both applicants had attended a number of meetings of the AWB prior to 27th April 1994. Furthermore, the evidence of the applicants that they completed membership application forms and paid an initial subscription stands uncontroverted. The applicants are accordingly regarded as having ben supporters of the AWB who believed themselves to be members thereof.
Section 20 (1) of the Promotion of National Unity and Reconciliation Act, No 34 of 1995 (hereinafter referred to as "the Act") provides that the Amnesty Committee shall grant amnesty in respect of an act, omission or offence if
a) the application complies with requirements of the Act;
b) the act, omission or offence to which the application relates is an act associated with a political objective in the course of the conflicts of the past in accordance with the provisions of subsection (2) and (3) and;
c) the applicant has made full disclosure of all relevant facts.
The first of these requirements has been satisfied as the applicants are technically correct and therefore comply with the requirements of the Act. What falls to be decided is whether the other two requirements have being satisfied.
The applicants aver that their actions on 27th April 1994 were done in furtherance of a political objective with the conflicts of the past. They contend that statements made by the AWB leadership through the public media to the effect that when the ANC/SACP takes over the government, the AWB will regain power by the use of violence on that very night, and that the group discussions they participated in at AWB meetings led them to believe that they should prepare for war and that they should actively resist the transition.
They state that during the morning of 27th April 1994 they heard over the radio that bombs had exploded in the East Rand. They went to visit the said du Bruyn, who they believed was an officer of the AWB, to enquire about the bombings and to collect a spare part of a motor vehicle they were repairing. Du Bruyn told them that the uprising had begun and that further explosions would occur. This, according to the applicants, satisfied and convinced them that they should make an active contribution to the uprising. The applicants proceeded to the home of the second applicant where they spent the afternoon with family and friend. They consumed alcohol and discussed politics and ways to disrupt the election. They decided on a course of action to follow and departed strong objection from the second applicant's wife. They went to du Bruyn's house to discuss their plan with him and to ask him to accompany then but du Bruyn was not there. They then drove to the R28 road where they committed the crime mentioned above.
The evidence of the applicants in so far as it relates to du Bruyn was corroborated by that of du Bruyn save that du Bruyn testified that he was not in fact the an officer in the AWB. He did, however, explain that he was a member of the AWB an that the applicants may have gained the impression that he was an officer as he usually conversed and associated with officers and leaders when at meetings of the AWB.
Both applicants state that their sole motivation in committing the crime was political and that their immediate aim was to cause chaos which would lead to the disruption of the elections. They believed that many other supporters of the AWB would be participating in the uprising and that the cumulative effect of their and the other contributions would have a significant impact on the political events of the day. They both deny that the consumption of alcohol was the driving force of their action.
Both applicants were convicted in the High Court of the offences for which they apply for amnesty. both were sentenced to undergo an effective term of imprisonment of fifteen years. The both pleaded guilty to all counts an neither of them raised the question of their political motivation at the trial. They state that they purposely did not make mention of their political motive at the trial as they feared that the chances of them being sentenced to death would be greater if the court found that thier crimes were politically inspired and that they were so advised by their then legal representatives.
On the other hand, it has been submitted on behalf of the surviving victim and those members of the victims' family who oppose the application that the applicants committed the offences in their personal capacities acting out of ill-will, malice or spite while under the influence of intoxicating liquor. It has been submitted that the applicants' version relating to their political motive should be rejected on the probabilities, particularly when the following factors are taken into account:
a) that there is sufficient ground to find that the applicants were members or supporters of the AWB, especially when taking into account their denial at the trial of being politically active as well as the fact that they could not produce any documentary evidence of their affiliation to the AWB;
b) that the applicants did not act on behalf of the AWB when they committed the crimes as the AWB never gave them instructions to shoot innocent victims and because the AWB has never admitted to any involvement in their crimes;
c) that there is no direct evidence that the applicants acted in the course of their duties as members of the AWB or that they acted within an implied authority to murder or attempt to murder innocent people or that they had reasonable grounds to believe that they acted in the furtherance of a political struggle waged by the AWB;
d) that the fact that the crime committed by the applicants turned out to be an isolated incident negates the credibility of their assertion that they believed that the uprising had begun and that they should make their contribution thereto;
e) that the actions of the applicants were spontaneous and were not at all properly planned as one would expect them to be, taking into account the applicants' military background;
f) that it is unreasonable that the applicants believed that they could disrupt the elections by shooting at a taxi containing two people which was not in the near vicinity of an election polling station.
As stated above we are satisfied that, on the evidence, the applicants be regarded as having been, at least supporters of the AWB who believed that they were members of thereof. Section 20 (2)(a) of the Act provides as follows:
"20 (2) In this Act, unless the context otherwise indicates, "act associated with a political objective" means any act or omission which constitutes an offence or delict which, according to the criteria in subsection (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 19960 to the cut-off date by
a) any member or supporter of a publicly known political organisation or liberation movement, both bona fide in furtherance of a political struggle waged by such organisation or movement against the State or any former state or another publicly known political organisation or liberation movement."
It is abundantly clear form the wording of the section that its provisions are of application to not only members but also supporters of a publicly known political organisation. It is also common cause that the AWB is a publicly known political organisation. The provisions of the section are therefore applicable to the applicants.
To use of the phrase "on behalf of or in support of" in section 20(2)(2) of the Act excludes the argument that the act must have been committed pursuant to the issue of an order or instruction. So long as the act was committed against the State or any former state or another publicly known organisation or liberation movement bona fide in furtherance of the struggle waged by the applicant's organisation the applicant will, subject to satisfying the other criteria qualify for the granting of amnesty.
It is, in our view, appropriate to apply a subjective test whether of not the applicants acted bona fide in support of or on behalf of their organisation. In this regard we accept the uncontradicted evidence that the AWB propagated the use of violence to resist the ANC from gaining the govern the country and that it called upon its members to prepare themselves for a state of war. The evidence of the applicants that they believed that the time had come for them ti make a contribution to the struggle waged by the AWB is fortified by that if the said du Bruyn, who stated that during the morning of 27th April 1994 he, on hearing of the bombings in the East Rand, informed the applicants that it (the revolution) had begun and that more bombings would take place. This belief existed prior to the applicants consuming liquor on that day in question and it accordingly cannot be found that the root cause of their actions was their drunkenness. It may well be so that the consumption of liquor played some role in that it provided them a false courage and was the reason for the sloppy planning and preparation of their act. Both the applicants stated that they knew what they were doing and the fact that the first applicant drove the vehicle without mishap and that the second applicant accurately aimed the shot he fired indicates that they were not so drunk as to eliminate their belief that they were acting in support of the AWB.
The fact that the AWB has never admitted to nay involvement in the applicants crimes also does not have effect of obviating the applicants subjective belief that they were acting in support of AWB when they committed the act.
We are satisfied on the evidence that the applicants bona fide believed that they were acting in support of and in furtherance of the cause of the AWB when they committed the offence. We are of the view that, on taking all the circumstances into account, the gaining of such belief by the applicants was not unreasonable. The applicants stated that at the time of the commission of the offence they were under the impression that other members of the AWB would, that day, commit acts of violence in order to cause chaos and so disrupt the elections.
They gained this impression after having heard the report of the bombings on the East Rand and after their discussion with the said du Bruyn. They only learnt after the event that their actions, save for the bombings on the Est Rand, turned out to be an isolated incident. They say that they decided to shoot a black man as they were of the opinion that the vast majority of black people were supporters of the ANC. Their intention was to commit an act of terror which, together with other such acts they believed would be committed by other members of the AWB, would instil fear and result in chaos and anarchy and so disrupt the elections. In this context, despite the tragic consequences and futility of their actions, it is concluded that the offence committed by the applicants was not disproportionate to the political objective they were pursuing.
In the light of the aforegoing and after careful consideration of the evidence placed before us we are of the view that the offences of murder and attempted murder committed by the applicants were associated with a political objective committed in the course of the conflicts of the past.
With regard to the other offences in respect of which the first applicant makes application for amnesty, namely the unlawful possession of a .22 rifle and the unlawful possession of ammunition, we are of the view that the commission of such offences were committed with no political objective. The rifle concerned came into possession of the first applicant on 17th April 1994 when it was given to him by his grandmother. The rifle was formerly owned by his grandfather who died on 10th April 1992 and whose name the rifle was licensed. The rifle was given to the first applicant as a family heirloom, the intention that he would in the future pass it on to his son. The first applicant neglected to have the rifle licensed in his name.
A further requirement for the granting is that the applicants must make full disclosure. There are glaring discrepancies between the case presented by the applicants at their trial and the evidence led by them at the hearing in this matter. As stated above the applicants at their trial completely underplayed their political motivation for the attack upon the deceased and his brother and ascribed their actions to them having been heavily intoxicated. They explained that they purposely misled the trial court in this regard as they believed and were advised that if they admitted to a pre-meditated killing they may well have been sentenced to death. The necessarily places the credibility of the applicants in question. Both the applicants gave thier evidence at the hearing in this matter in a satisfactory fashion. After careful consideration we accept, without condoning, their explanation for misleading the trial court as being the truth and we are of the view that they have mad a full disclosure to the committee.
In the result:
(a) the amnesty application by James Wheeler in respect of the murder of Vuyani Kenneth Papiyana on 27th April 1994 succeeds and amnesty is GRANTED;
(b) the amnesty application by James Wheeler in respect of the attempted murder of Madoda Godfrey Papiyana
succeeds and amnesty is GRANTED;
(c) the amnesty application by James Wheeler in respect of unlawful possession of a .22 rifle fails and the granting of amnesty is REFUSED;
(d) the amnesty application by James Wheeler in respect of unlawful possession of ammunition fails and the granting of amnesty is REFUSED;
(e) the amnesty application by Cornelius Rudolph Pyper in respect of the murder of Vuyani Kenneth Papiyana on 27th April 1994 succeeds and amnesty is GRANTED;
(f) the amnesty application by Cornelius Rudolph Pyper
in respect of the attempted murder of Madoda
Godfrey Papiyana succeeds and amnesty is
GRANTED;
The amnesty Committee is of the opinion that Madoda Godfrey Papiyana and the parents of the deceased, namely Zenam Papiyana and Glenrose Zoleka Papiyana are victims in relation 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 30TH DAY OF JULY 1998.
JUDGE S MILLER
ADV LEAH GCABASHE
ADV F BOSMAN
MR J MOLOI
