DECISION
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The two applicants were charged in the Supreme Court with:
Robbery with aggravating circumstances in that on the 10th
March 1990 they assaulted Lindile Lennox Yose ( a traffic
policeman) and stole his 357 Llama revolver;
Murder in that on the 14th April 1990 they killed Zithobile
Livingstone Ciliza (a municipal policeman);
Robbery with aggravating circumstances in that they
assaulted ;
Ciliza and stole his firearm;
Murder in that on the 17th April 1990 they killed Leon
Carmel Joseph (a municipal policeman);
Robbery with aggravating circumstances in that they
assaulted Joseph and stole his shotgun;
Murder in that on the 20th April 1990 they killed Daniel
Andrews (a municipal policeman);
Contravening Act 75 of 1969 in that they were in unlawful
possession of firearms;
Contravening Act 75 of 1969 in that they were in unlawful
possession of ammunition.
The second applicant had been involved in two shooting incidents in 1987, for which he was convicted in the Regional Court in June 1988 on two counts of attempted murder and unlawful possession of firearms and ammunition and sentenced to an effective twelve years imprisonment. In September 1988 he was again convicted of attempted murder with a firearm and sentenced to ten years imprisonment of which five years were to run concurrently with the sentence he was serving. He subsequently escaped from goal in July 1989 and was sentenced to nine months imprisonment for this in February 1991, having been re-arrested in April 1990.
The trial commenced on 21st May 1991, but during the course of the trial two of the accused who were on bail absconded. These were the first applicant (accused 3) and Zola Relu (accused who subsequently died). The trial proceeded against the second applicant (accused 1) who was convicted and sentenced on 29th November 1991.
Subsequently, after the first applicant had been re-arrested on his return to this country and after he had joined the SANDF, his trial was concluded and he was sentenced on 31st July 1996.
The first applicant was convicted on Counts 2, 3, 4, 5, 6 and 7 and found no guilty on Counts 1 and 8. He was sentenced to life imprisonment on Count 2 and 3, and on Counts 4 and 5, and to fifteen years imprisonment on Count 6 and three years on Count 7 totalling eighteen years. The second applicant was found guilty on all counts except Count 6. He was sentenced to death on Counts 2 and 4 and to five years each on Counts 1, 3, 5 and 7 and to two years on Count 8 totalling twenty-two years.
The first applicant, in his written amnesty application dated 6th June 1996, says in paragraph 9(a) that he sought amnesty for:
"Murder (3 counts)
Robbery with aggravating circumstances (3 counts)
Unlawful possession of firearms and ammunition."
It is clear from the information contained in the application that he is referring to the incidents set out in Counts 1, 2, 3, 4, 5, 6, 7 and 8. He refers to the traffic officer and gives his name as Lindile Lennox Yose who he says was seriously injured.
In a letter attached to his application he sets out his political history, including his meeting with the other two applicants. He talks of the second applicant having a 38 revolver which was taken from the traffic officer "they" disarmed but "they" did not hurt him because "they" had nothing to do with the violence in the township. This appears to conflict with what he set out in his application, both as to the nature of the assault and with his participation in the assault.
He describes the murders of the other municipal policemen and the reason therefor. He explained that he believed that after his return to this country and service in the National Peacekeeping Force he had been granted indemnity.
The second applicant in his application which was received on 13th December 1996, asked for amnesty for:
Two counts of murder.
Two attempted murder.
Possession of a firearm and ammunition
Escaping from custody
(which occurred between 1987 to 1990)"
He stated that:
"Two policemen died, two policemen injured, one person injured."
He stated he had been tried in the Regional Court for the attempted murders and in the Supreme Court for the murders and had been sentenced to two death sentences and forty-two years and nine months imprisonment. It appears clear that he intends his reference to two attempted murders to include the two incidents where two policemen and one person were injured.
The Amnesty Committee office did not ask the second applicant for any amplification to or details as to his application. Having to this it appears equitable to us to regard the application as one relating to the two separate incidents of attempted murder on which he had been convicted and to the unlawful possession of a firearm and ammunition on the occasion of the commission of the two murders and the two incidents of attempted murder. The fact remains that his application does not include any reference to robberies. His attorney’s attention was drawn to the fact that the affidavit was sworn to and presented after the cut-off date and that it was now not open to him to now add fresh offences to his application. The Committee during this discussion indicated that in the light of the fact that the murders and robberies in Counts 2 and 3 and 4 and 5 were so closely related, it would perhaps be proper to consider the applications for amnesty in respect of the two murder to include the robberies which were associated with them and for which he had applied for amnesty within the correct time.
At the commencement of the hearing, affidavits made by both applicants were handed in. The affidavit made by the second applicant, who was to be the first witness, was Exhibit "A" and that of the first applicant Exhibit "B". These affidavits set out, very briefly, their political history and the incidents they had been involved in. They had both been members of the Uitenhage Youth Congress, and ANC aligned body which was a UDF affiliate. The first applicant subsequently joined the ANC and MK The first applicant admitted being involved in the three murders charged under Counts 2, 4 and 6; the second applicant admitted being involved in the shooting of two supposed Ama-Afrika vigilantes and of one Sidumo in 1987; of escaping from custody in 1989 and of the robbery in Count 1 and the murders charged under Counts 2, 4 and 6.
At the commencement of the second applicant’s evidence, his attorney led him on the events he was seeking amnesty for and he confirmed this. This commenced with the statement that he was applying for amnesty in respect of Count 1, which he had not been convicted of. Later it was stated that he was convicted on Count 6 for which he was also applying for amnesty. It was further stated that he was also applying in respect of Count 8 for which he had not been convicted. These statements were all incorrect in the light of the Appeal Court decision reported in S v Mjikwa 1993 (1) SASV 507 and the prison records which have been supplied to us. It was further stated that he was also applying in respect of Count 8 for which he had not been convicted.
The second applicant commenced his evidence confirming the affidavit, Exhibit "A" and stating that his aim in committing the acts set out was to liberate the people and to fulfil the aims of the organisation. This he said was a political aim.
The second applicant then read into the record a statement he had prepared, Exhibit "D". In this statement he deals extensively with his political beliefs and why it became necessary to join the struggle. He deals with the organisation referred to as Ama-Afrika which was the organisation which caused the violence in Uitenhage in 1987, by attacking the comrades. He explained that he had been a target of Ama-Afrika and also of the police and that a war situation existed in their district. He then dealt with the incidents for which he was applying for amnesty, which occurred between 1987 and 1990 and I quote:
"The first one is the shooting of two policemen, Municipal policemen, that was in 1987. Also the shooting of Sidumo in Khayelitsha. I also tried to escape from prison to try to go to exile. I also shot three policemen, I was involved in the shooting of three policemen in 1990 and also assaulting a traffic officer and taking his weapon."
He then dealt with the items separately, the first happening in 1987, where he was with a group of comrades who heard that people wearing civilian clothing had arrested some comrades. His group decided to look for these policemen and went to an area known as Angola. While his group was walking along two by two he saw two men sitting on the ground. He greeted them. As he walked past one of the men sitting on the grass started nudging the other and they then drew their firearms. He did not know that they were policemen because they were wearing civilian clothes but perceived them as either policemen, Ama-Afrika or vigilantes and shot at them and his group then ran away. This appeared to have been done to save his group from being attacked.
The next incident occurred some weeks later when members of his group said there was a need to go and attack some people at Khayelitsha. He went to a shop of a Mr Kulman who was perceived to be a member of Ama-Afrika. Before arriving there he told his comrades they should not shoot unless they were sure it was one of the vigilantes. He saw one Sidumo standing inside talking to a lady. He shot him and his group once again dispersed. He was arrested thereafter. He was sentenced to twelve years imprisonment for having shot the two policemen and ten years for the other offence of which five years was suspended. He was unable to remember whether that happened in 1988 or 1989.
He then escaped from prison intending to leave the country but met a group of comrades and they hid at various places. He became nervous that some of the comrades he met might disclose where he was hiding and this nervousness increased when he read that the comrade who was supposed to take him across the border had been arrested. He returned to Uitenhage where there was a conflict between the UDF and Ama-Afrika who were being used by the police to kill the comrades.
He then gave evidence as to the 1990 incidents and explained that one Sizwe Makhuleni, the first applicant, told him where they could find police, where the Municipal police went to and sat and drank. The two of them went to a tavern. The first applicant entered and later escorted a policeman out of the tavern towards the gate. He pushed the gate open and saw the policeman decrease his pace and then took out his gun. The first applicant took the gun that he had and gave him the gun that he had already taken from the policeman whom he had disarmed. The first applicant then shot him in the back and the second applicant asked for the gun and then decided to shoot the policeman again as he had not fallen down. This is the event that gave rise to Counts 2 and 3.
Included in the papers put before the Committee was a copy of a judgement delivered at the first applicant’s trial. During the course of that trial and after a trial-within-a-trial, a confession made by the first applicant was admitted as evidence and the following appears:
"Mbuyisile het toe vir my gevra wat ek van hom soek. Toe het ek gese nee ek soek nou ‘n wapen. Ons twee het toe vriende geword en toe het ons besluit om saam ‘n vuurwapen van ‘n polisieman te roof wat drink.
In die begin van April hierdie jaar het ek en Mbuyisile saam in Gwashustraat gestap. Ons het baie Munisipale polisiemanne gesien sonder wapens, maar toe sien ons vir Kst Cilaza uitkom by die smokkelhuis. Ons het by die hek gestaan. Ek het toe vir Kst Cilaza gegryp van voor. Mbuyisile het toe vir Kst Cilaza van agter gegryp en sy vuurwapen afgeneem. Ek het toe gesien dat Kst Cilaza my herken. Konstabel Cilaza het vir ons gese, "eendag sal ek vir julle kry". Ek het toe die besluit dat Kst Cilaza geskiet moes word. Ons het toe na Kst Cilaza gegaan en Mbuyisile het my ‘n ander wapen gegee en ek het toe een skoot op Cilaza geskiet was hom in sy rug getref het. Ek wou hom doodskiet want hy het my herken. Konstabel Cilaza het toe in die smokkelhuis ingehardloop en toe het Mbuyisile gese, "die man is nog nie dood nie ek wil him gaan klaarmaak". Mbuyisile het toe weer die wapen by my geneem en agter Cilaza gegaan en ek sien toe dat Mbuyisile vir Cilaza een skoot vuur. Ek dink die skoot het hom in die kop getref.
Mbuyisile het die wapen wat hy by Cilaza geneem het vir my gegee. Ek en Mbuyisile het toe saam weggehardloop."
It was on the basis of this evidence that the applicant was convicted. Unfortunately, this was not drawn to the Committee’s attention at the hearing and the applicant was not questioned about his failure to tell the Committee his reason for shooting Cilaza.
The next event that he testified to was when they went to an area where the police accompanied trucks, which were depositing rubbish. They waited until the first truck drove off and when only one truck remained they went to the truck. He had the firearm that he had taken from the traffic policeman (Count 1) and first applicant was carrying the firearm that they took from the policeman they shot at the tavern. They took the driver out of the truck and then shot the policeman in the head. They took the pump gun that the policeman had been armed with but on their way they threw it away as they decided it was too big to be of any use to them. This is the event which gave rise to Counts 4 and 5.
The final incident involved a visit to a police station, known as the Langa Police Station. A Municipal policeman was standing at the gate and they remained in the vicinity for some time as the policeman was chatting to a friend of his and they did not want to be involved with two people at the same time. They finally decided to leave and as they were walking past the policeman he told them to put their hands in the air. The first applicant was carrying a bag which apparently caused the policeman to become suspicious. The policeman came towards them and pointed a gun at them. He realised the policeman could not see what he was doing under his coat and pulled his gun out and shot the policeman through his jacket. He was not sure how many shots he fired but it was more than two. A White policeman then came running towards them. He shot in his direction but they then ran away. He said that he was not shooting at the White policeman but shooting at the policeman who was pointing a gun at them. This incident was the subject of Count 6.
He finally gave evidence in respect of Count 1 where he said that they saw a traffic policeman that had stopped a car. They went up to the traffic policeman to disarm him; he resisted and the second applicant hit him over the head with the gun he was carrying. They grabbed the traffic policeman’s gun and left him.
He explained that at all relevant times he was a member of the Uitenhage Youth Congress, which was affiliated to the UDF, and that at not time did he take anything from his victims except the firearms and ammunition. The purpose of doing this was to obtain weapons so they could protect themselves and the community against their enemies. Count 1 was committed because the traffic officer was identified as being part of the structures of the Government. He explained that he had no personal animosity or hatred against the victims. The enemies of his organisation were the people supporting the Government, that is the police and other bodies such as Ama-Afrika. He explained:
"UDF was a non-violent organisation, but because of the actions of the Government that was using the police in our townships we as the youth had to take steps to protect ourselves against the police that were killing us. Informers and police were not wanted in the community, even though there was no leader perhaps according to my knowledge, that said or gave an order for police to be killed, we used our discretion to fulfil the goals of the organisation."
He explained that they kept the firearms that they had taken to use in the struggle and that there was no need to hand them over to the organisation as they had not been asked to get firearms for the organisation. He explained that he was a member of the Uitenhage Youth Congress and had not joined the ANC in 1990, even though it was un-banned but would probably have done so at some time in the future. When question by members of the Committee he explained that he regarded certain comrades as their leaders and that they had rendered him assistance after he had been involved in the incidents that he gave evidence about. He had never been reprimanded by any of the organisations for his activities. He also explained that he had not filled in the Amnesty Application Form himself but it was his intention to apply for amnesty for everything that he had spoken of during the hearing. He requested the Committee to regard his application as covering all these events.
The first applicant then gave evidence and testified that he was a full member of COSAS. He confirmed the contents of his application and the letter annexed thereto which contained the information that he was a member or supporter of the African National Congress (ANC). He confirmed the evidence given by the second applicant in so far as it related to him. That is the evidence relating to the incidents set out in the Indictment. He said that his aim was to disarm the enemy and to arm the people due to the fact that at the time there was no security for the people because of the killings and violence in the township. He explained that he left the country in 1991 and returned as a full member of the ANC in 1994. On his return he went to help establish the National Peace-Keeping Force.
He explained that as early as 1985, a statement was made publicly by their Chairperson, one Zuongangalu that it was time to clean up the township and this meant doing away with the police as they could no longer continue living with the police in the township. Uitenhage was the first town in South Africa where such a statement was made and the operation was commenced. There had been a stay-away from school in 1984, 1985 and 1986 but he was then instructed to return to school as a result of a decision taken by COSAS. In 1989 violence started, instigated by people he called Ama-Vigilante, who were a group of people working with the police and who had infiltrated the PAC. The purpose of this was to provoke Black on Black violence and disorganise the programme of action of the ANC. The Youth Congress commenced negotiations with PASO and he was warned that he was going to be assassinated due to his involvement in the peace process. He then left and had underground military training within the country. This was given by one Vuysile Thole. He then referred to the vigilantes known as Ama-Afrika and the attacks they were launching on the community. He met his co-applicant and other young comrades, at that time called "Young Lions". A meeting was arranged and a plan was made to attack Ama-Afrika and the police. The purpose of these attacks was to safeguard the peace process. It was felt, however, that attacking fellow Black such as Ama-Afrika might jeopardise the peace process and that the only way that peace could be brought about was to do away with the police who were responsible for such Black on Black violence. As he said:
"The only way we could do it is to make sure that we hit the head - we hit the snake on the head, not the snake on its tail. Ama-Afrika was just the tail, not the head."
It is clear from his evidence that they thought it was important that the police should realise that they were under attack. This would cause them to withdraw. He explained that they needed firearms and the only way they could acquire firearms was to disarm all the state, security, even the traffic police, but because the one they robbed was not responsible for the violence his comrades did not kill him they just took his firearm. This firearm was later used to kill the police. He explained that they did not target any particular policeman, there was no personal malice in their action. In answer to questions by the Committee, he explained that he confirmed what he said in his application, that is that he acted on behalf of the organisation without his leaders approval. He was ordered to secure the peace process by a soldier but not a leader.
He explained that although he had not known the policeman killed at the tavern he knew of him by reputation and that he was known as a gunslinger in the community who had shot a pregnant woman at one stage. This did not, however, mean that he was deliberately executed. He explained, as had the second applicant that when they went to the Langa Police Station, their intention was to destroy the Police Station. It was a place that had a shocking reputation as being the scene of torture of comrades. They sought to attack it at an appropriate time when there would be as few people as possible there. Whey they arrived there they saw two vans in the yard and a number of police present so they were not able to attack it immediately. He confirmed what the second applicant said happened.
He explained that he had come back and made a full and complete disclosure to the people of National Peace-Keeping Force and had been told by them that there was nothing for him to worry about because he had indemnity. When he went home he was subsequently arrested on these outstanding charges.
The last witness called on behalf of the applicants was a Mr Sokelelo. He was a member of a youth group and a UDF local executive. He confirmed the attempt to divide the people of the country and to cause the PAC to work against the comrades. He explained that the ANC was working to liberate the country and they had to focus on the people that worked for and supported the enemy, the police. This was why they could not ask the youth to stop when they decided to hit the enemy. The youth were being oppressed and could see their people being killed in the townships. He found a place for the second applicant to hide after he escaped and confirmed that they had not reprimanded the youth or disassociated themselves from their actions. He himself totally associated with them that they should hit the enemy in whatever way they had to.
It appears clear to us that the incidents giving rise to the applications complied with many of the requirements of the Promotion of National Unity and Reconciliation Act. There seems to be no reason not to accept the applicants evidence that their acts were committed in the course of the conflicts of the past and that they were not committed for personal gain or out of personal malice. The only items taken in the course of the robberies were firearms and ammunition which were to be used in the course of the struggle. There is also no reason not to believe that the applicants were supporters of a publicly known political organisation who believed that what they did was in the course and scope of their duties and within the scope of their authority. It is also clear that their actions were directed against the State or in one instance against a member of another political organisation. The question that remains to be decided is whether the acts were acts associated with the political objective, as determined by reference to the provisions of Section 20 (3) of the Act.
We must now deal with the separate applications:
There seems to be no doubt that this act was performed to obtain a weapon to use in the liberation struggle against the State. There is no suggestion that undue force was used.
It appears that here again the intention was to steal a firearm to use in the struggle. The decision to kill the policeman was only taken when it became clear that he had recognised one of the applicants and would take action against him in the future. This would have prevented the applicant continuing the struggle and may well have led to the disruption of their organisation. In these circumstances we have come to the conclusion that it meets the requirements of the Act.
In this incident the applicants attacked the policeman as part of the revival of the earlier operation during 1989 to remove the police from the township in an attempt to consolidate the renewed peace process with the Ama-Afrika vigilantes. The perception was that the police were intentionally frustrating the attempts at establishing peace and were manipulating the violent conflict in the township. In these circumstances the killing meets the requirements of the Act although the loss of life and the applicants’ conduct in first appropriating and shortly thereafter abandoning the policeman’s firearm in a public place are particularly lamentable.
COUNT 6
The intention of the applicants was to further the struggle by destroying the police station in question. Once the suspicions of the constable had been aroused and he approached them armed and hostile their only course was to attack him as they did. In our view, this was once again an act done in furtherance of the struggle for which they are entitled to amnesty.
There is no suggestion that they at any time possessed firearms and ammunition for any purpose other than to use them in the liberation struggle.
We now turn to the applications by the second applicant alone.
ATTEMPTED MURDER : 2 MEN
This appears to have been an act committed to defend himself and his comrades from attack and/or arrest. It appears to have been committed to enable them to continue with the struggle they were engaged in and complies with the provisions of the Act.
The second applicant was a member of a group which had proceeded to a shop which was a well-known meeting place of Ama-Afrika vigilantes. The group intended to launch an attack on this shop. The second applicant gave evidence of his warning to his comrades not to shoot unless they were sure it was a vigilante. He saw a known member of the Ama-Afrika vigilante group, one Sidumo, inside the shop. Second applicant shot and injured Sidumo. In these circumstances he has met the requirements of the Act.
We accordingly GRANT amnesty to the first applicant in respect of all crimes and delicts arising from the commission of:
Count 1 (Robbery with aggravating circumstances on 10th
March 1990).
Count 2 (Murder of Z L Cilaza on 14th April 1990).
Count 3 (Robbery with aggravating circumstances).
Count 4 (Murder of L C Joseph on 17th April 1990).
Count 5 (Robbery with aggravating circumstance).
Count 6 (Murder of D A Andrews on 20th April 1990).
Count 7 (Unlawful possession of firearms).
Count 8 (Unlawful possession of ammunition).
Amnesty is GRANTED to the second applicant in respect of all crimes and delicts arising from:
Count 1 (Robbery with aggravating circumstances on 10th March 1990).
Count 2 (Murder of Z L Cilaza on 14th April 1990).
Count 3 (Robbery with aggravating circumstance).
Count 4 (Murder of L C Joseph on 17th April 1990).
Count 5 (Robbery with aggravating circumstances).
Count 6 (Murder of D L Andrews on 20th April 1990).
Count 7 (Unlawful possession of firearms).
Count 8 (Unlawful possession of ammunition).
Two counts of attempted murder and unlawful possession of
a firearm and ammunition for which he was sentenced on 3
June 1988.
Signed at..................on this ..........day of ..................1999
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