DECISION
______________________________________________________
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No 34 of 1995 ("the Act").
Not all 5 Applicants appeared before the Amnesty Committee for their applications to be heard. The Applicant's legal representative, Mr Mohlaba, informed the Committee that Applicants no. 4 and no. 5 on the list , Mr. J.J. Mokoena and Mr. Mofokeng, are in custody. He further informed the Committee that his instructions were that Mr Mofokeng and Mr T.J.Mokoena deny guilt as they did not participate in the incident for which amnesty is sought. They formally withdrew their applications. Mr. Mofokeng merely gave evidence clearing his name in this episode.
Only Messrs Fokazi, Ndabeni and Makhura proceeded with their applications.
FACTS IN BRIEF:
Applicants Fokazi, Ndabeni, Makhura and the following five people, namely Nozulu, McGregor, Nxala, Joe and Sebenzile were members of the Self Defence Unit (SDU) under the control of the African National Congress (ANC). They were operating at Phola Park and Thokoza in Alberton. They received a request from the SDU at Inanda in KwaZulu Natal to send members from Phola Park to Inanda to protect the ANC and the community from attacks by Inkatha Freedom Party (IFP) supporters.
On the 1st April 1992 the eight of them left Phola Park en route to Inanda. Ndabeni was the driver of his own vehicle which was used in this mission. They went to Bethlehem, in the Free State, to collect money for Sebenzile which was owned to him by Nxala.
A short distance from Bethlehem a dispute and argument ensued between Sebenzile and Nxala. Because Sebenzile was known to be extremely emotional and trigger-happy it was decided to separate them. Makhura, Fokazi and Nxala alighted from the car leaving Nozulu, Ndabeni, Sebenzile, Joe and McGregor behind. They decided to take Nxala to the nearest township, Bohlokong.
When they were about 2 kilometres from the car they heard gunshots fired from an AK47 rifle.
Shortly thereafter a van approached and stopped next to them. The driver, who was a Mr. Collie, ordered them at gun point to get on to the back of the said van and he drove off with them to an unknown destination. In order to disturb the driver and force him to stop the van, Fokazi fired shots in the air. When the driver stopped, Makhura threatened him with a firearm but ended up shooting at him when he did not cooperate. The driver was injured. They managed to escape and sought refuge at Bohlokong Township in Bethlehem. The police eventually arrested them.
The group which remained at the car with Ndabeni was confronted by the police. A shoot-out ensued and one policeman, Lourens Cornelius Oosthuizen, was shot and killed. The group escaped and drove towards Lesotho. They were confronted by the police again at Ficksburg. A shoot-out took place. Two members of the SDU, Sebenzile and McGregor were shot and killed at the scene. Nozulu escaped and his whereabouts are unknown until presently. Ndabeni managed to hide in the dam for two days but when he came out he was arrested.
They were arraigned before the then Bloemfontein Supreme Court. Except Ndabeni, they were charged with conspiracy to commit robbery, murder, attempted murder and illegal possession of firearms and ammunition.
They were all sentenced to long terms of imprisonment.
ANALYSIS
In its submission before the TRC, the ANC explained the purpose for the establishment of SDU's. Among others, the reason was to protect communities which were engulfed by violence at the time when the liberation movements were negotiating a new dispensation with the then government of the day. The ANC had suspended the armed struggle. Communities felt that the police then did not provide adequate protection . They were suspected of being involved in fuelling the violence.
Evidence was led before this Committee that it was common for SDUs from one area to assist SDUs in another area in protecting the community.
Although Fokazi and Mukhura were not present at the scene where Mr. Oosthuizen was murdered and attempted to kill the others was done, they are applying for amnesty also in respect of his killing and the attempted murder. They were charged and convicted for his murder on the doctrine of common purpose. They also accept and associate themselves with the killing as they see it as part of an act which arose out of their mission in transporting weapons from Phola Park to Inanda to further a political objective namely, the assistance of another SDU.
The applicants did not disclose to the trail court their mission to Inanda and the reason for being in possession of a large quantity of weapons at a place. The trail court seemingly convicted them for conspiracy to commit robbery on the only reasonable inference to be drawn for their presence on the farm with such an arsenal of weapons.
The Applicants deny guilt insofar as the offence of conspiracy to commit robbery on the Orsmond family is concerned. They also testified that Mofokeng and Mokoena were complete strangers to them; that the State witness, Thabo Motaung, who testified against them at their trail approached Makhura after their conviction and "confessed" that he was requested by the police to give false evidence against them and that he was promised money for doing that. The said Thabo died before he could make an affidavit to this effect.
The Committee has considered the evidence tendered by the late Mr Oosthuizen’s father who testified that the Applicants have not been truthful in their evidence and they did not make a full disclosure of all facts.
CONCLUSION
On the evidence we have received and on the other information before us, we are satisfied that the Applicants comply with the requirements of the Act; that the actions were done in furtherance of the policies of the ANC and particularly the SDU; that the skirmish with the police and the subsequent shoot-out and killing of Mr Oosthuizen and the possession of weapons was a continuation of the objective, namely to move from Phola Park (Thokoza, Alberton) to Inanda (KwaZulu Natal) to assist another SDU structure from attack by IFP's supporters. These are acts associated with a political objective and were not done for personal benefit nor out of malice.
The three Applicants are accordingly GRANTED amnesty for murder of Mr Oosthuizen, attempted murder on the other police officers and Mr Collie as well as for unlawful possession of firearms and ammunition. Because they deny guilt and involvement on conspiracy to commit robbery they are consequently NOT GRANTED amnesty for this offence.
The committee finds that Mr Oosthuizen 's next - of - kin and Mr Collie are victims and are hereby referred to be the Reparation and Rehabilitation Committee in terms of the Section 26 of Act for its consideration.
Dated at.................this.....................day of ....................1999
................................................
MILLER , J
.................................................
DR. W.M. TSOTSI
.................................................
MR. J.B. SIBANYONI
