DECISION
The applicant applies for amnesty in terms of section 18 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 (the Act) in respect of the following offences:
1. The murder of Francisco De Sousa
2. attempted murder of Joao Jardim and
3. armed robbery with aggravating circumstances
committed by him on or about 16 November 1990 at or near Westonaria in the district of Westonaria.
The applicant was sentenced to an effective term of 25 (twenty five) years imprisonment of the 10th of September 1996 in the Witwatersrand Local Division.
He testified that he was a commander of a unit established by APLA's High Command called the Repossession Unit and code named BEAUTY SALON whose primary objective was to collect funds for that organisation through the "repossession" of items such as weaponry, money, jewellery and other items of value in order to enable APLA to prosecute its struggle against the government of the day. His evidence in this regard was supported by Mr Letlape Mphahlela who in his affidavit confirmed that the applicant was appointed the head of the Repossession unit and that the applicant had reported directly to him. Letlape further stated that the applicant was also a member of APLA's High Command.
The applicant further testified that though he had to report directly to Mphahlele there was a period when Mphahlele was unavailable during which he was instructed to report to one Ntsiki who was based in Botswana and who was in charge of operations and that he would at times report to Jackie also based in Botswana and in charge of logistics. When this operation took place, he was reporting to Ntsiki and at times to Jackie in Ntsiki's absence.
The applicant gave testimony about a litany of operations conducted by his unit in the execution of his orders as a commander thereof. He testified that as a commander, he selected targets to be "repossessed" and that the killing of persons in the course of executing these operations did occur particularly where the occupants of places that were targeted for repossessions were white.
With regard to the incident for which he seeks amnesty he stated that they received information that the Elsberg shop always had large sums of money. Consequently a reconnaissance on the shop was conducted on applicant's instructions by one of his operatives after which the applicant took a decision to carry out the operation.
His unit consisted of five members excluding himself and the weapons that were used in this operation had been obtained from APLA in Bulawayo for the unit's utilisation for operations Beauty Salon. For the execution of the operation the applicant was armed with a 9mm star pistol, and his operatives had the following weapons; Lumumba a 9mm star pistol, Belo an AK47, Small Boy an AK47, Thabiso an AK47 and Mpush was not armed and was the driver of the getaway car that was used in the operation. The unit was divided into the three groups namely, the assault group, the support group, and the cut-out group. The whereabouts of these operations are unknown to the applicant.
The applicant was part of the cut-out group and was outside the shop when the whole operation was conducted. He therefore did not personally fire a shot that killed Mr De Sousa nor the one that might have been fired at Mr Jardim nor did he physically participate in the robbery that took place.
He however was a commander of that unit and as such foresaw the possibility that firearms might have to be used by the members of the unit in the course of the execution of his operation and to that end he is as guilty as those who pulled the trigger at Mr De Sousa, Mr Jardim and participated in the robbery that took place.
The applicant further testified that cash as well as two big boxes of cigarettes were taken from the shop the combined value of which amounted to the sum of R6 000. After taking the money and the cigarettes the applicant also took the Bakkie belonging to the shop which was parked outside the shop as a getaway car to get to a place just outside Westonaria, where Mpush was waiting for them in the car they had used earlier on inorder to get to the shop. The Bakkie was then dumped outside Westonaria where it was later recovered by the police.
The applicant averred that the proceeds derived from the operation was used at his discretion for the sustenance of his unit. He, however, notwithstanding the fact that he had a discretion to use such funds had telephoned his commander Ntsiki in Botswana to apprise him of the result of his operation and Ntsiki had approved that the proceeds could be used for his unit sustenance.
The applicant was questioned about whether he had been given any guidelines on how the funds derived from any given operation were to be utilised by his unit. His response was that any sum of money which was less than R500.00 could be utilised by his unit at his discretion; otherwise any sum above R500.00 had to be handed over to Ntsiki in Botswana. He was then questioned why he had not handed over the sum of R6000.00 which was obviously quite substantial and his response was that his unit was in desperate need of funds for its survival hence his telephone call to Ntsiki for permission to use the money.
The applicant called Mr Jabulani Khumalo to give evidence in support of his application. This committee is unable to attach any weight to the evidence given by Mr Khumalo because it bordered on hearsay evidence since at all times material hereto he was not a member of the National Executive Committee of the PAC or a member of APLA's High Command nor did he belong to any structure related to the Repossession unit.
Whilst there is no supporting evidence that the money obtained from this operation was indeed used for the unit's sustenance and not for the applicant's personal gain, there is however no evidence before us to the contrary and in the absence thereof we cannot discard the applicant's version. Moreover it is quite probable that the applicant, being the very first commander of
this repossession unit which comprised five other well trained APLA operatives would use the money for his own benefit without the other operatives raising eyebrows at such misconduct by a member of APLA's High Command.
Furthermore, the applicant could have indeed misled this committee by stating that the money was given to Ntsiki knowing quite well that Ntsiki would not have been present to gainsay that evidence since he could not be located for purposes of this hearing; yet the applicant elected not to do so. He has further given details of other operations in which he was involved wherein some of the money was used for the unit's sustenance even though he was not prosecuted for those offences. Had he been dishonest about how he had utilised the proceeds derived from these operations, he would not have volunteered this information. In the premises, we accept that the proceeds derived from this operation were used to sustain the unit in order to enable it to carry out the orders of APLA.
APLA as a military formation of the PAC has already made a comprehensive submission to the Commission on the objective for the establishment of this unit and its operations which accord with the testimony of the applicant.
Having regard to all the evidence before us we are satisfied that the applicant complies with the requirements of Section 20 (1) of the Act and that the offences to which the application relates are acts associated with a political objective committed in the cause of the conflicts of the past in accordance with the provision of the subsection (2) and (3) of the Act. Applicant is hereby
GRANTED: amnesty for murder, attempted murder and robbery with aggravating circumstances.
We are further of the opinion that Mr Jardim and the relatives of the late Mr De Sousa are victims in relation to the offences for which the applicant has been granted amnesty and hereby refer them to the Committee on Reparation and Rehabilitation for consideration for reparation in terms of Section 26.
SIGNED AT CAPE TOWN ON THIS THE 7 DAY OF DECEMBER 1998
JUDGE S. KHAMPEPE
ADV. F. BOSMAN
MR W. MALAN
