DECISION
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1.
INTRODUCTION:
These are applications for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995. The applicants are all members of the African National Congress("ANC") and at all material times of its military wing Umkhonto weSizwe ("MK"). The applications relate to a number of incidents involving some or all of the Applicants. Pursuant to these incidents all of the Applicants, save for David Solomon Simelane (" Simelane") were arraigned in the then Transvaal Provincial Division of the Supreme court on a number of dramatic turns but eventually resulted in the conviction of Applicants on various charges and the death penalty being imposed upon three of them. The death penalties were set aside on an appeal and substituted with long terms of imprisonment. Applicants were subsequently released as part of the deals concluded between the ANC and the South African government.
We proceed to deal with the various incidents individually, setting out the extent of the participation of those applicants who are involved.
2. KILLING OF ORPHAN CHAPI alias HLUBI
This incident involves Obed Masina ("Masina") and Simelane and constitutes the only incident in respect whereof Simelane is seeking amnesty. Both Applicants testified in support of the application which is not opposed. The evidence is briefly to the following effect.
Masina left the country during or about December 1977 after having become disillusioned with the prevailing political circumstances. His initial intention was to join the ANC in exile and further his studies. After having joined the ANC, he was transferred to Mozambique where he met Simelane, who was previously known to him. Simelane undertook to assist Masina in making arrangements for the latter's further studies. While waiting for these arrangements to be finalized, applicant fortuitously met up with a member of MK and decided to rather undergo military training pursuant to his discussions with the MK member. Masina received military training and thereafter redeployed in South Africa by Simelane who was his MK commander at the time. Masina was ordered to kill Orphan Chapi who was a notorious policeman in Soweto. He was a political target for elimination in accordance with the instructions of the late Mr Joe Slovo.
Masina failed to locate Mr Chapi on his first visit to South Africa but managed to do so on being infiltrated into the country for a second time. He confronted Mr Chapi at approximately midnight on June 1978 at the latter's home in Rockville, Soweto, where he shot and killed Mr Chapi. Masina returned to Swaziland where he reported back to Simelane. Simelane then ordered him to take over command of a MK unit inside South Africa since the previous commander of the unit which eventually consisted of all the Applicants save for Simelane.
Having carefully considered the applications as well as the evidence, we are satisfied that the Applicants have made full disclosure and that the killings is in act associated with a political objective as provided for in the Act.
We are, moreover, satisfied that the applications comply with all of the requirements of the Act and amnesty is accordingly GRANTED to Masina and Simelane in respect of the killing of Orpan Chapi on or about 25 June 1978 at or near Rockville, Soweto.
3. ANTI -TANK LANDMINE IN MAMELODI
This incident involves Frans Ting -ting Masango ("(Masango") and Masina, who both testified in support of the application which is unopposed.
This was the first operation of the unit under the command of Masina. The incident occurred during the State of Emergency and at that time when Mamelodi was occupied by the South African Defence Force. There was a call by the anti-apartheid political organisations including the ANC and the civic structures for the Defence Force to be withdrawn from all townships. Applicants decided to select a military patrol vehicle as a target in order to derive the propaganda and psychological value that would accrue to the ANC and the MK from such an attack. They planted an anti-tank landmine on a route in Mamelodi frequented by military vehicles.
On or about 16 February 1986 an armoured vehicle detonated the landmine resulting in damage to the vehicle. It is unknown whether any deaths or injuries resulted from the incident. Applicants were never charged for this incident in spite of having informed the police after their arrest about their involvement.
Having carefully considered the evidence and the applications, we are satisfied that these applications comply with all of the requirements of the Act and amnesty is accordingly GRANTED to Masango and Masina for malicious injury to property or any related offence flowing from the planting and detonation of the anti-tank landmine on or about 16 February 1986 at or near Mamelodi.
4. KILLINGS OF SEUN JOSEPH VUMA
This incident involves Masina and Masango who both testified in support of the application which is unopposed. Their version is briefly as follows.
The attack on Constable Vuma fell within the general instructions of Masina's unit to attack the police, although the identification of Constable Vuma as a target was done by the unit itself. Constable Vuma was a notorious policeman from Mamelodi who was involved in various attacks on members of the community and was accordingly regarded as a political target by the unit.
The unit at the time consisted only of Masina and Masango, since the other members of the unit had not yet infiltrated into South Africa.
After reconnoitering the home of Constable Vuma, the Applicants entered his yard and awaited his return home on the day of the incident, namely 16 March 1986. Close to midnight they heard the car of Constable Vuma arriving and Masango took up position armed with a AK 47 rifle. After Constable Vuma entered the house, Masango shot him through one of the windows. Constable Vuma was killed in the attack which was reported by the Applicants to their commander in Botswana.
In all the circumstances we are satisfied that the killing constitutes an act associated with a political objective in terms of the provisions of the Act and that Applicants have made a full disclosure of all relevant facts.
In our view the applications comply with all of the requirements of the Act and Masina and Masango are accordingly GRANTED amnesty for the killing of Seun Joseph Vuma on or about 16 March 1986 at or near Mamelodi.
5. THE ATTACK ON LUKHELE AND DLUDLU
In terms of the mandate of Applicant's unit, homeland leaders were legitimate political targets for attack. At the time of the incident during 1986, Mr Mabaleke David Lukhele was an opposition leader in the Kwa-Ngwane homeland. He actively campaigned for the incorporation of Kwa-Ngwane into Swaziland which was opposed by both the then leader Kwa-Ngwane, Mr Enos Mabuza, a supporter of the ANC, as well as the ANC itself. After having identified Mr Lukhele as a possible target, the unit reported to the MK command in Botswana in order for a final decision to be taken in regard to the situation of Mr Lukhele. Approximately two weeks later, the unit received an order from the MK command in exile to proceed with the attack upon Mr Lukhele.
Neo Griffiths Potsane ("Potsane") was deployed to reconnoiter the movements of Mr Lukhele with a view to executing the unit's plan to attack and kill him at home. On 6 June 1986 Potsane and Masina proceeded to execute the plan. Potsane armed himself with an AK 47 rifle and the two applicants proceeded to the house of Mr Lukhele. Potsane entered the house whilst Masina remained outside. Inside the house, Potsane opened fire killing Mr Lukhele as well as a visitor, Mrs Dludlu, and injuring Mrs Lukhele. The latter two persons were basically caught up in the crossfire.
Although the victims were legally represented at the hearing by Mr Rammutla, they did not oppose the application nor did they tender any evidence to contravert the Applicant's version. In his address Mr Rammutla conceded that the applications comply with the requirements of the Act and that amnesty ought to be granted to the Applicants.
Having carefully considered the matter, we are satisfied that the Applicants were acting in their capacity as member of MK and in execution of an order received from their command in launching the attack. The attack, in our view, constitutes an act associated with a political objective as provided for in the Act and we are satisfied that the Applicants have made a full disclosure of all relevant facts.
In all the circumstances the applications comply with all the requirements of the Act and amnesty is GRANTED to all of the Applicants in respect of the following offenses committed on or about 6 June 1986 at or near Mamelodi:
the murder of Mabaleke David Lukhele;
the murder of Elizabeth Busisiwe Dludlu
the attempted murder of Elizabeth Moswaila Lukhele
6. THE SILVERTON INCIDENT
This incident concerned the detonation of a limpet mine in a dustbin at a Whites-only bus stop on 4 July 1986 at or near the Checkers shopping complex in Silverton. 18 persons were injured in this incident and various properties damaged.
Applicant's unit decided upon this attack in the wake of what they referred to as a massacre of people in Mamelodi by members of the South African Defence Force during protests against rent increases. This incident, moreover, followed upon the ANC's Kabwe Conference during June 1985 where a policy decision was taken to abolish the distinction between soft and hard targets in the course of MK military operations. Under these circumstances, the unit identified the Whites-only bus stop as an appropriate target for attack since it, inter alia, symbolised the system of apartheid. The intention was to focus the attention of Whites on the liberation struggle and the effects of the liberation war being waged by the ANC. By inflicting casualties upon the white population the apartheid regime would be pressurised by and isolated from its electorate.
After having reconnoitered the vicinity, Masango and Joseph Elian Makhura ("Makhura") proceeded to execute the operation. Makhura placed the limpet mine in the dustbin whilst Masango kept a lookout. The limpet mine was set to detonate within 20 -30 minutes. Due to some technical fault it only detonated approximately 5 hours later with the consequences set above. The unit reported the operation to their command in exile. Their actions were not repudiated by their command.
Some of the victims of the explosion appeared at the hearing and were legally represented by Mr Booysen. At the conclusion of the proceedings, Mr Booysen indicated that his clients are not formally opposing the applications but simply attending in order to obtain a full account of what happened and the reasons for the attack. He indicated that his clients are satisfied that the proceedings have served these purposes and that they have no objection to amnesty being granted to the Applicants.
Having carefully considered the matter, we are satisfied that the applications comply with all the requirements of the Act. The incident clearly constitutes an act associated with a political objective as provided for in the Act and the Applicants have made a full disclosure of all relevant facts. In the circumstances, amnesty is granted to all the Applicants in respect of all the offences, including attempted murder and malicious injury to property, which resulted from the detonation of a limpet mine on 4 July 1986 at near Silverton.
7. SOSHANGUVE INCIDENT
This incident occurred on 21 July 1986 at Soshanguve. At this time Soshanguve was occupied by the South African Defence Force. On the day of the incident, Makhura was observing the movements of the Defence Force personnel in Soshanguve as part of his duties as a member of the Applicant's unit. He observed Defence force vehicles moving over a heap of soil which acted as an obstruction preventing ordinary vehicles from using the particular road. He formed the idea that it would be possible to attack the Defence Force vehicles moving over the obstruction by planting a landmine in a heap of soil. He reported back to the unit on his observation and his idea of planting a landmine in a heap of soil, which plan was eventually accepted by the unit. That evening Makhura, Patsane, Masango and another member of the unit, one Mandla proceeded to the heap of soil with a landmine. Upon their arrival, Masango remained in the vehicle and Makhura proceeded to plant the landmine in the heap of soil while Potsane and Mandla kept guard. The unit waited in vain for two or three days for the landmine to be detonated, whereafter they decided to remove the landmine. During the course of the afternoon of the day on which the landmine had to be removed, it was detonated by a road grader working on the road. The road grader was operated at the time by Mr James Nkosi.
Having carefully considered the matter; we are satisfied that the planting of the landmine and the eventual detonation thereof constitute an act associated with a political objective as envisaged in the Act. We are also satisfied that the Applicants have made a full disclosure of all relevant facts and that the applicants comply with all of the requirements of the Act.
In the circumstances amnesty is GRANTED to all of the Applicants in respect of the following offences committed on 21 July 1986 at Soshanguve:
(a) Attempted murder of James Nkosi;
(b) Malicious damage to property in respect of the road grader operated by Mr. Nkosi.
8. VICTIMS
In our opinion, the persons listed in the Annexure hereto are victims in relation to the incidents set out herein and are accordingly referred for consideration in terms of the provisions of Section 22 of the Act.
9. CONCLUSION
In summary amnesty is GRANTED to applicants as follows:
9.1 OBED MASINA
(a) The killing of Orphan Chapi alias Hubi on or about 25 June 1978 at or near Rockville, Soweto;
(b) The planting and detonation of an anti-tank landmine on or about 16 February 1986 at or near Mamelodi;
(c) The killing of Seun Joseph Vuma on or about 16 March 1986 at or near Mamelodi;
(d) The following offences committed on or about 6 June 1986 at or near Mamelodi.
(I) The murder of Mabaleke David Lukhele;
(II) The murder of Elizabeth Busisiwe Dludlu;
( III) The attempted murder of Elizabeth Moswaila Lukhele;
(e) All offences, including attempted murder and malicious injury to property, which resulted from the detonation of a limpet mine on July 1986 at Silverton.
(f) The following offences committed on 21 July 1986 at Soshanguve:
(I) The attempted murder of James Nkosi;
(II) Malicious injury to property in respect of the road grader operated by James Nkosi.
9.2 DAVID SOLOMON SIMELANE
The killing of Orphan Chapi alias Hubi on or about 25 June 1978 at or near Rockville, Soweto.
9.3 FRANS TING - TING MASANGO
(a) The planting and detonation of anti -tank landmine on or about 16 February 1986 at or near Mamelodi.
(b) The killing of Seun Joseph Vuma on or about 16 March 1986 at or near Mamelodi;
(c) The following offences committed on or about 6 June 1986 at or near Mamelodi:
(I) the murder of Mabaleke David Lukhele;
(II) the murder of Elizabeth Busisiwe Dludlu;
(III) the attempted murder of Elizabeth Moswaila Lukhele;
(d) All offences, including attempted murder and malicious injury to property, which resulted from the detonation of a limpet mine on 4 July 1986 at Silverton.;
e) The following offences committed on 21 July 1986 at Soshanguve:
(I) the attempted murder of James Nkosi;
(II) malicious injury to property in respect of the road grader operated by James Nkosi.
9.4 NEO GRIFFITHS POTSANE
(a) the following offences committed on or about 6 June 1986 at or near Mamelodi:
(I) the murder of Mabaleke David Lukhele;
(II) the murder of Elizabeth Busisiwe Dludlu;
(III) the attempted murder of Elizabeth Moswaila Lukhele;
(b) All offences, including attempted murder and malicious injury to property, which resulted from the detonation of a limpet mine on 4 July 1986 at Silverton;
(c) The following offences committed on 21 July 1986 at Soshanguve:
(I) the attempted murder of James Nkosi;
(II) Malicious injury to property in respect of the road grader operated by James Nkosi.
9.5 JOSEPH ELIAN MAKHURA
(a) The following offences committed on or about 6 June 1986 at or near Mamelodi:
(I) the murder of Mabaleke David Lukhele;
(II) the murder of Elizabeth Busisiwe Dludlu;
(III) the attempted murder of Elizabeth Moswaila Lukhele;
(b) All offences, including attempted murder and malicious injury to property, which resulted from the detonation of a limpet mine on 4 July 1986 at Silverton;
(c) The following offences committed on 21 July 1986 at Soshanguve:
(I) the attempted murder of James Nkosi;
(II) Malicious injury to property in respect of the road grader operated by James Nkosi.
Dated at ................................... this ............ day of
.............................. 1999.
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JUDGE DENZIL POTGIETER
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ADV. C.DE JAGER
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ADV. L.GCABASHE
ANNEXURE
LIST OF VICTIMS
1. The next -of- kin of Orpan Chapi alias Hlubi
2. The next -of- kin of Seun Joseph Vuma ,Mrs Busisiwe Daleen Vuma
3. The next-of -kin of Elizabeth Busisiwe Dludlu
4. Mrs Elizabeth Moswaila Lukhele
5. Mrs James Nkosi
6. Silverton incident: Attempted murder
Jakomiena Fransiena Le Roux
Martha Johanna Magdalena Erasmus
Ronel Schmidt
Philmarin Annelize Marais
Lea Magdalena Bruyns
Susanna Catharina Roets
Anna Diedericks
James George Pavier
Belinda Cochrane
Samuel Dingaan Masango
Rebecca Ndwandi Mpofu
Sophie Madisha
Phillip Masemola
George Mamesa
Michael Ramohlarane Mothogoane
Marianna Susan De Bruin
Elias Machoene Makololo
Robert Baloyi
Malicious damage to property
Jonathan William Groenewald
Saambou National(represented by Sonja Lindeque)
Something Fishy ( represented by Jan Fredrick Smit)
Milky Way Dairy (represented by Francina Butsi Paile)
Ernest Ananias Williams
Gertruida Marx
Norman Ned Smith
Mbulaheni Petrus Mambona
Dirk Hendrik Human
Jacobus Johannes Morten
Dianne Winifred Sarinha
Jonathan William Groenewald
