DECISION
This application for amnesty pursuant to Section 18 of the Promotion of National Unity and Reconciliation Act No.34 of 1995 ("the Act").
The Applicant, Phila Martin Dolo, was at all material times a cadre of the Azanian Peoples Liberation Army (APLA) the military wing of the Pan African Congress (PAC) having received training as such under its auspices outside of the Republic.
He was tried and convicted on 5 December 1994 in the WLD of the then Supreme Court of the following:
1. Count 1 - murder
2. Count 2 - attempted murder
3. Count 3 - contravention of Section 32(1)(a) read with Sections 1, 39(2)(aA) and 40 of Act No 75/1969. Unlawful possession of machine guns.
4. Count 4 - contravention of Section 32(1)(e) read with Sections 1, 39(2)(aA) and 40 of Act No 75/1969. Unlawful possession of ammunition intended to be fired from a machine gun or machine rifle or any similar armament.
5. Count 5 - contravention of Section 32(1)(c) read with Sections 1, 39(2)(aA) and 40 of Act No 75/1969. Unlawful possession of any explosive or incendiary device or any part thereof.
6. Count 6 - contravention of Section 32(1)(b) read with Section 2, 39(2)(aA) and 40 of Act No 75/1969. Unlawful possession of any grenade.
7. Count 8 - attempted murder.
He was sentenced on 9 December 1994 in the same court as follows:
(a) Count 1 - Life imprisonment.
(b) Count 2 - Ten years imprisonment.
(c) Count 3 and 4 (Taken together for purpose of sentence) -Twelve years imprisonment.
(d) Count 5 - Ten years imprisonment.
(e) Count 6 - Ten years imprisonment.
(f) Count 8 - Eight years imprisonment.
He applies for amnesty in this hearing in respect of these conviction and in addition in respect of his participation and activities in connection with an operation to bomb the Yeoville Police Station. Part of such activities constituted the subject matter of Count 7 at the above proceeding. Applicant was acquitted on this Court at the trial.
Although there are several other incidents referred to in the application, only the matters referred to above were heard before us, the others having been either during other hearings of the Amnesty Committee, or held in abeyance pending other developments.
The Applicant's co-accused in the trial had been given notice in terms of Section 19(4) and were present at the hearing.
The family of deceased constable Jacob Hlomela Mabao had also received notice in terms of Section 19(4) and declined to be present at the hearing. Sgt Edward Neluchi and an Alexander Veldman also received notice in terms of Section 19(4) and were present at the hearing. Their and other victims’ interests were represented by the leader of evidence Mr Zuko Mapoma.
The Applicant testified and confirmed the contents of his affidavit which forms part of the record before us. He clarified the source and basis for his orders which resulted in the two incidents and their consequences. We do not regard it necessary to traverse the facts in any detail.
Applicant said he had been deployed in the Gauteng area in early 1993. he and his unit had been planning various operations including the attack upon the Yeoville Police Station. He was a regional commander with several units under his command.
On 26 May 1993 the security forces launched a series of raids and operations against the PAC and APLA. This was during the negotiations process and as a consequence he received from The Director of Special Operations one Sipho Bulelani Xuma code name "Polite", to launch operations against the SAP in his area. All of the incidents dealt with in the applications were special operations undertaken pursuant to this order.
Having conducted reconnaissance, the Applicant together with his co-accused, one Musa and one Kenny launched an attack on the police van on 28 May 1993. The occupants of the vehicle were Constable Mabaso the driver and Sgt Nelushi.
It is common cause that Constable Mabaso died in the attack and that Sgt Nelushi was severely injured in the attack.
On the following say, 29 may 1993, the Applicant instructed his co-accused and Musa in the use of the explosives referred to in paragraph 14 at page 18 of the bundle, which he had requisitioned via courier from Sipho Bulelani Xuma who was at the time in the then Transkei, and sent them to carry out the operations to bomb the Yeoville Police station. It seems evident from the testimony of the Applicant and other documents that the police were aware of this operation and arrested the Applicant's co-accused before the explosives could be placed and any harm done.
On 30 May 1993 the Applicant was arrested after having been wounded in an exchange of fire with members of the police. At the time of his arrest he was in possession of the items referred to in Counts 3, 4, 5 and 6.
That in essence was the evidence on behalf of the Applicant.
Sgt Nelushi testified as to the circumstances of the attack, the death of his friend and colleague and his injuries and the consequence thereof. He did not oppose the application and expressed no ill-feeling towards the Applicant.
Mr Mapoma had placed on record that none of the other victims were opposing the application. No other evidence was led before us.
There can be no doubt that the Applicant was a cadre of APLA. His actions as set out above were all within the ambit of the policies of both APLA and PAC. We may mention that the Commission has had extensive evidence and received submissions detailing such policies and strategies.
The Applicants conduct falls, in our view, within such framework and accordingly are held to be acts associated with a political objective as envisaged in Section 20(2) read with Section 20(3) of the Act.
With regard to the issue of full disclosure, we are satisfied that the Applicant has made full disclosure of all the material facts. He has not tried to minimise the nature and extent of his involvement in these incidents and has further applied for amnesty for an aspect for which he was acquitted in the trial. He has also disclosed additional facts which evidence his bona fides in this regard.
The Applicant was not from the area where these events took place and had no personal interest or agenda in respect of the persons injured or killed, who were all unknown to him. There is no suggestion that he acted for personal gain.
Accordingly we GRANT the Applicant in respect of:
1. The murder of Jacob Hlomela Mabaso on 28 May 1993 at Diepkloof in the then Transvaal;
2. The attempted murder of Edward Nelushi on 28 May 1993 at Diepkloof in the then Transvaal;
3. The attempted murder of Ian Alexander Veldman on 30 May 1993 at Diepkloof in the then Transvaal;
4. Contravention of Section 32(1)(a) read with section 1, 39(2)(aA) and 40 of Act No75/1969. Unlawful possession of machines guns;
5. Contravention of Section 32(1)(e) read with Section 1, 39(2)(aA) and 40 of Act 75/1969. Unlawful possession of ammunition intended to be fired from a machine gun or machine rifle or any similar armament;
6. Contravention of Section 32(1)(c) read with Sections 1, 39(2)(aA) and 40 of Act 75/1969. Unlawful possession of any explosive or incendiary device or any part thereof;
7. Contravention of Section 32(1)(b) read with Sections 2, 39 (2)(aA) and 40 of Act 75/1969. Unlawful possession of any grenade;
8. All acts in relation to the planning, orders and preparation of the failed bombing of the Yeoville Police Station on 29 may 1993, including the unlawful possession of explosives in contravention of Section 28(1) read with Sections 1, 27(1)(c) and 28(2) of Act 26 of 1956, possession of two kilograms of plastic explosive one chinese stick grenade and two hundred and fifty grams of TNT.
The matter of the death of Jacob Hlomela Mabaso and the attempted murders of Edward Nelushi and Ian Veldman are referred to the Reparations and Rehabilitation Committee pursuant to Section 22(1) of Act 34 of 1995.
SIGNED ON THIS THE 16TH SAY OF SEPTEMBER 1998.
ADV D POTGIETER AJ
MR I LAX
ADV S SIGODI
