DECISION
The Applicant in this matter has applied for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act"), as amended, in respect of the following offences:
1. The killing of one Makwena Freddy Mashamaite at or near Monaheng Section, Katlehong on 21 January 1993;
2. Robbery of Makwena Freddy Mashamaite at the abovesaid place and time of a 9mm pistol and ammunition;
3. Unlawful possession of abovesaid 9mm pistol;
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4. Unlawful possession of abovesaid ammunition;
5. Robbery of Basie Tladi at or near Twala Section, Katlehong on 16 March 1993;
6. Attempted murder of Basie Tladi at or near Twala Section, Katlehong on 16 March 1993;
7. Attempted murder of Richard Malope at the place and date referred to in paragraph 6 above;
8. Attempted murder of Khehla Moses Tshabalala at the place and date referred to in paragraph 6 above.
He was charged in respect of all the above incidents except for the attempted murder of Basie Tladi. A copy of the Indictment as well as a summary of substantial facts are contained in the bundle of documents on pages 45 to 49 of the record before us.
A trial was held in the WLD under Case No. 103/95 and the Applicant was found guilty as charged. He was sentenced as follows:
(a) On the charge of murder - 40 years imprisonment;
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(b) On the charge of robbery - 8 years imprisonment;
(c) For unlawful possession of firearms - 3 years imprisonment;
(d) For unlawful possession of ammunition - 1 year imprisonment;
(e) On the charge of robbery - 8 years imprisonment;
(f) On the charges of attempted murders which were taken together for the purpose of sentence - 8 years imprisonment.
The Applicant elected to give oral evidence. The testimony of the Applicant set out the facts and circumstances of the killing as well as that of the attempted murders. For the sake of convenience we will separate the issues and deal firstly with the killing of Makwena Freddy Mashamaite.
SUMMARY OF THE EVIDENCE
Murder of Makwena Freddy Mashamaite
The Applicant's evidence was that he was a member of the Pan African Congress. He later joined APLA, the military wing of the
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organisation, whilst he was in exile. In January 1993 he was given orders by the APLA Commander, Sabelo Phama, to infiltrate the country and to prosecute the armed struggle. The main aims of the PAC and APLA were to topple the apartheid government and to eventually return the land to the African people.
The following were perceived to be enemies of the PAC :
(i) Members of the SADF;
(ii) Members of the SAP;
(iii) Farmers;
(iv) Informers;
(v) White homes.
The Applicant testified that his general instructions were to seek, identify and attack the enemy as well as to train other cadres and to command them in whatever operation that was being embarked upon.
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Applicant testified that on the 21 st January 1993 he commanded a unit of APLA cadres to attack policemen working at the Katlehong Police Station. It was Applicant, Eugene Mdakane and Gift Mosia. He testified that they saw one policeman going in the direction of Monaheng Section and they decided to follow him. Applicant drew his Tokarev pistol and pointed it towards the deceased. When the deceased tried to draw his pistol the Applicant shot him. He testified that he shot him only once. After the deceased had been shot, the Applicant and the other cadres took the deceased's firearm, which was a 9mm pistol.
Attempted murder of Basie Tladi and the other 2 policemen
Applicant testified that two weeks after the incident of killing Freddy Mashamaite the police were looking for him. He heard from one Vusi, an APLA cadre, that the police were being accompanied by one Basie Tladi.
On 15 March 1993 Applicant and Gift went to Basie Tladi's place. He first tried to shoot Basie Tladi but when he was about to shoot, a person who knew them came and they did not shoot. They then waited for Basie Tladi near his home. When they saw him coming out of his home, Applicant shot him but he missed.
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Basie Tladi came back accompanied by the police. Gift managed to escape. Applicant then shot at the police. He was also shot by the police on his right leg and was arrested.
This was the evidence in chief of the Applicant. He did not call any witnesses.
ASSESSMENT OF THE EVIDENCE
Victims
Mr Mapoma, the evidence leader, indicated to the Committee that the deceased's wife was present and she intended opposing the application on the basis that the act was not an act associated with a political objective.
Basie Tladi had been sought but could not be found. Mr Mapoma informed the Committee that attempts to notify Mr Tladi of the hearing had been made through the media and this was also announced over the radio. He got this information from the media liaison officer. He was satisfied that all reasonable steps had been taken to give due notification and there was no response.
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Insofar as the policemen who were shot whilst they were arresting the Applicant is concerned, Mr Mapoma informed the Committee that he received information from the Investigation Unit that Constable Richard Malope had since died and Khehla Moses Tshabalala could not be traced. He submitted that the Applicant should proceed. We agreed and proceeded to hear the matter under the circumstances.
Mr Mapoma indicated that if necessary he would call the deceased's wife to give evidence, not on the merits but as a victim.
Although the wife of the deceased had indicated that she wanted to oppose the Applicant's application on the basis that there was no political motive for what he did, it was never put to him that his act was not political and no evidence was led on this aspect by the victim. He was never cross-examined forcefully on this aspect. Applicant said he did not know Mr Mashamaite. He had no personal grudges. It was merely his membership of the South African Police that resulted in him being targeted.
Insofar as Basie Tladi's case is concerned, the Applicant was cross-examined on what basis he had concluded that Basie Tladi was an informer. He testified that Basie Tladi had been to his
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home with the police. The police had said that the Applicant was being sought in connection with the murder of a policeman.
He also stated that he had heard from Vusi that Basie Tladi was an informer and that the decision to kill Basie Tladi was taken by himself. He had not received any specific order. He as a commander was guided by the 15 points of attention which constituted APLA's code of conduct.
Basie Tladi was perceived to be an informer because he assisted the police and this made him a legitimate target.
Further Applicant denies that he robbed Basie Tladi of his watch, R100.00 and jewellery. He stated that when they shot at him they were close to him and if Gift had robbed him, he would have seen it. Unfortunately Basie Tladi was not available to give his side of the story.
CONCLUSION
The Committee is thus left with determining whether on the evidence as it stands the acts of the Applicant qualify as being in accordance with a stated political motive and/or objective as required by the Act.
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The Committee is prepared to accept that the killing of a policeman and an informer was an act associated with a political objective, when taking into consideration the situation in the country at the time of the commission of the offence.
Secondly, the Applicant was a member of a publicly known political organisation and his actions were committed on behalf of this organisation.
Thirdly, the Committee is prepared to accept that the Applicant acted within the scope of his authority or he had a reasonable belief that he was acting within the scope of his organisation's express or implied authority.
Fourthly, the Applicant had no malice nor did he act for personal gain.
On the matter of full disclosure, the Committee finds that the Applicant did make full disclosure.
In the premises the Applicant is
GRANTED: amnesty in respect of
1. The murder of Freddy Mashamaite;
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2. Robbery of the firearm of Freddy Mashamaite;
3. Unlawful possession of a firearm;
4. Unlawful possession of ammunition;
5. Attempted murder of Richard Malope;
6. Attempted murder of Khehla Moses Tshabalala;
7. Attempted murder of Basie Tladi.
Insofar as the robbery of Basie Tladi is concerned, the Committee will reserve its decision, which will be given in due course.
The matter of the death of Freddy Mashamaite and the attempted murders of Khehla Moses Tshabalala and Basi Tladi are referred to the Reparations and Rehabilitation Committee pursuant to Section 22(1) of Act 34 of 1995.
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DATED AT KIBLER PARK ON THIS 16TH DAY OF SEPTEMBER 1998.
ADV D. POTGIETER, A.J.
MR I. LAX
ADV. S. SIGODI
