DECISION
This is an application in terms of section 18 of the Promotion of National Unity and Reconciliation Act 34 of 1995 (the Act).
The Applicant applies for amnesty in respect of his conviction, on 14 September 1994, at the Wynberg Regional Court, Johannesburg, for robbery of a motor vehicle, the property of Isaac Khezamula Mashavani, which was being driven by Edward Mbhazima Mkhwanazi, at Alexandra, Johannesburg on 29 April 1994. He was sentenced to ten years imprisonment which he is currently serving at Johannesburg, Medium A Prison. He also applies for amnesty for the conspiracy to murder Mr Lesiba Wilson Makhubela ("Makhubela").
Notices in terms of section 19(4) had been served on the owner and driver of the robbed vehicle and Makhubela who was represented by Mr R J Falksen. The Applicant who was represented by Mr J Fourie testified in support of his application. He confirmed his application and the affidavits, which form part of the papers.
The applicant canvassed his activist background, the fact that he had joined uMkhonto weSizwe and had been in exile as a member of the ANC until his return to9 the country on 5 January 1992. He had difficulty finding his family who had moved and suffered as a result of violence. He eventually got a job in a security company where he was responsible, inter alia, for the control of firearms.
He was not involved in any political activity or in contact with any political structures during the time after his return to the country. He said that he decided to murder Makhubela because he believed him to be an informer and a threat to the ANC and its members in the Hammanskraal area where his grandmother resided and where he says he spent a lot of time. To this end he decided to hijack the motor vehicle in question so that he could use it for transport during this ‘operation’. He made this decision on his own and without reference to the ANC but believed that he would be furthering the ANC’s political struggle through such conduct.
We do not intend to traverse the evidence of the applicant in detail. Suffice it to say he was not an impressive witness. His testimony was fraught with numerous inconsistencies and contradictions.
By way of illustration we mention a few of such inconsistencies:
This "operation" took place after the first democratic elections had already occurred;
The driver of the vehicle spoke of an accomplice during the trial and the applicant denied the presence of any such person. We can find no reason to doubt the driver’s evidence in this and other aspects;
The driver spoke of hearing a gun being cocked and the applicant denied any such action on his part;
The driver spoke of jumping out to the vehicle while it was moving slowly and reference was made to a corresponding injury. This was denied by the applicant;
There were certain problems with the reasons given by the applicant as to why he took his cousin and friend along with him to Hammanskraal;
The applicant claimed he engaged in this "operation" because "the community" had decided that Makhubela should be killed but he was unable to satisfactorily explain when, who and how this decision was made or how it was conveyed to him and by whom;
He claimed the firearm and ammunition were found on his person. However the arresting officer found them under the front passenger seat;
He conceded that he had not been involved in political activity and was unable to describe the political situation in Hammanskraal at the time;
Makhubela testified and denied being an informer or to having associations with the police. He said the police would raid his unlicensed shebeen from time to time. He said he was on good terms with the community in general and the ANC who regularly used his minibuses for transport. He said he was not active in politics at all. He did not know the applicant.
In the light of the difficulties we have outlined above with the applicant’s testimony and when such testimony is weighed against the objective probabilities which emerge form Makhubela’s testimony, the evidence at the criminal trial and the inconsistencies in the applicant’s own version, it is clear to us that these instances of non-disclosure are aimed inter alia, at establishing a political context to support the applicant’s assertion that his acts were associated with a political objective. We are not satisfied in this regard.
In the result we are not satisfied that the applicant has complied with section 20(1) of the Act and accordingly the application is REFUSED.
Dated at Pretoria this 21st day of September 1999.
JUDGE S MILLER
ADV L GCABASHE
MR I LAX
