DECISION
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This is an application for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 ("the Act"). The applications related to an incident which occurred during the night of Friday 22 November 1991 and the early hours of the morning on Saturday 23 November 1991 at or near Krugersdorp, Gauteng. Pursuant to this incident, the Applicant was charged and arraigned in the then Transvaal Provincial Division of the Supreme Court of:
One count of murder in respect of the killing of Mervin David Binder at or near Magobastad on 22 November 1991;
Robbery with aggravating circumstances;
Malicious injury to property.
The Applicant testified in support of the application and no further witnesses were called to testify. In spite of reasonable attempts to ascertain the whereabouts of the next-of-kin of the deceased, they could not be traced. The application is accordingly unopposed. The relevant facts and circumstances relating to the application can be briefly summarised as follows:
Applicant has been actively involved in politics since approximately 1984 when he joined the South African Youth Congress which was a predecessor of the African National Congress Youth League ("ANCYL"). After the unbanning of the ANC and during 1991, he joined the ANCYL. The political membership of the Applicant was duly confirmed by the ANC Truth and Reconciliation Desk. At all relevant times Applicant was a member of the ANCYL branch at Swanieville which in turn formed part of the Ventersdorp ANCYL branch. Swanieville is a township close to Krugersdorp. Kagiso, which is also relevant for purposes of this decision, is again a town situated approximately 30km south of Krugersdorp.
During the period 1990 – 1991 the townships at Kagiso and Swanieville, like most other townships in the Witwatersrand area, were plagued by extremely high levels of political violence
involving the ANC and the Inkatha Freedom Party ("IFP"). The main characteristic of this violence was a conflict between ANC aligned township residents and IFP aligned hostel dwellers. The conflict was accompanied by heavy loss of life and large-scale destruction of property. During the course of this violence, Applicant was initially residing at the township in Kagiso.
A highlight of the violence was an attack launched on 12 May 1991 by hostel dwellers from Kagiso on the residents of Swanieville. The assistance of Applicant and other residents of Kagiso was enlisted to help the residents of Swanieville to repel the attack. Applicant witnessed the loss of life and destruction in the wake of the attack. The victims were all members or supporters of the ANC. In total 28 people were killed and more than 40 injured in the attack. Subsequent to the attack, the community of Swanieville looked to the ANC to protect the community. In an attempt to stabilise the situation and to rebuild the ANC structures in Swanieville, a number of ANC members and activists were relocated to Swanieville. Applicant was one of those who moved to Swanieville. In Swanieville, Applicant made contact with a neighbour, one George Nawane, who previously resided in the Kagiso hostel but moved out after the hostel became dominated by the IFP. Applicant obtained information from George in regard to the activities in the hostel and the fact that the violence perpetrated by hostel dwellers was orchestrated and supported by certain whites. Applicant started frequenting the hostel in the company of George.
Applicant reported the information which he had gathered to his political leadership, including Mandisa Shiceka, the secretary of the ANCYL at Kagiso and Eric Ndleleni the interim chairperson of the ANCYL at Swanieville. Applicant was then ordered to infiltrate the Kagiso hostel in an attempt to expose the elements behind the violence. During this process, Applicant met Mervin David Binder (the "deceased") in the hostel. The deceased was a regular visitor to the hostel and the Applicant struck up a friendship with the deceased under the guise that the Applicant was a hostel dweller and IFP member. The deceased was living at Krugersdorp at the time. Applicant met the deceased on a number of occasions in the hostel and after each such meeting, reported back to his political leadership. Applicant obtained a lot of information from the deceased in regard to the violence, including a detailed account of the planning, execution and the deceased’s own role in the attack on Swanieville on 12 May 1991. It became clear to applicant that the deceased was actively and centrally involved in the violence in the area. The deceased was working with the IFP as well as the South African Police and he even held a police identification card in spite of the fact that he was in employ of one of the companies in Krugersdorp.
In the circumstances, Applicant had discussions with his political leadership about the possibility of extracting more information from the deceased in regard to the political violence. Eric Ndleleni gave him the necessary to ahead and furnished him with a 9mm pistol to utilise in the process. Applicant arranged to meet the deceased at Kagiso police station on the evening of 22 November 1991. The deceased collected Applicant and George in his vehicle at the Kagiso police station and they drove to a farm in the vicinity where Applicant collected a large quantity of arms and ammunition. After having left the farm, Applicant used the pistol to compel the deceased to drive to an isolated spot in the vacinity of Ventersdorp where Applicant and George attacked the deceased. The deceased was interrogated and information extracted from him. Amongst others, the deceased indicated that the weapons collected from the farm were intended to be used in a planned attack by Kagiso hostel dwellers on Swanieville the next morning, Saturday 23 November 1991. This information cast a very serious light on the situation and the Applicant decided to kill the deceased, which was then done. Applicant was actuated by the objective of averting the threatened attack on Swanieville and to contribute towards eliminating the violence orchestrated by persons such as the deceased. The body of the deceased was disposed in the area and his vehicle used to travel back to Swanieville. The weapons and ammunition were handed to the ANCYL and were distributed amongst the comrades for use in defending the community of Swanieville against attacks. The vehicle of the deceased was set alight on the outskirts of Swanieville in order to distract any prospective attackers.
Applicant was eventually arrested and tried and convicted on the charges as set out above. Pursuant to his conviction he was sentenced to an effective 18 year term if imprisonment.
Having carefully considered the matter, we are satisfied that the actions of the Applicant were associated with a political objective as required in terms of the provisions of the Act. The attack upon the deceased was clearly associated with the political struggle which the ANC and IFP were engaged in at the time. There is no doubt that the deceased had participated in this conflict on the side of the IFP which rendered him a target for attack by the ANC. Although the killing was not pre-planned and accordingly not expressly authorised before the event by Applicant’s political leadership, it is clear that it was reasonable foreseeable in the circumstances. In this regard it is borne in mind that the ANCYL chairperson, Eric Ndleleni, furnished a firearm to the Applicant for the purposes of confronting the deceased. The Applicant moreover testified that he had subsequently explained the circumstances of the killing to his political leadership, whose approval was expressed in unequivocal terms to the effect that the killing was "long overdue".
Although there are some indications from the judgment of the trial Court that there was certain evidence led at the trial which apparently conflicts with the evidence of the Applicant before us, his version in uncontraverted. The papers before us were accompanied by an affidavit deposed to by one Mogorosi Leburu which apparently contradicts the version of Applicant. The Committee instructed the Leader of Evidence to secure the attendance of Leburu at the hearing in order to hear his evidence. This was duly done. In consultation with the Leader of Evidence, Leburu indicated that the contents of his affidavit are false and the result of being tortured and unduly influenced by the police. Leburu indicated that he was never present when the deceased was abducted and killed. This accords with the other evidence before us. In the circumstances it would have served no useful purpose to lead the evidence of Leburu. We are accordingly satisfied that the Applicant has made a full disclosure of all relevant facts as required by the Act.
In the circumstances, amnesty is GRANTED to the Applicant in respect of the following offences committed during the period 22 – 23 November 1991 at or near Krugersdorp:
The killing of Mervin David Binder;
Robbery with aggravating circumstances;
Malicious injury to property.
In our opinion, the next-of-kin of Mervin David Binder are victims in relation to the acts for which amnesty is hereby granted and they are accordingly referred for consideration in terms of the provisions of Section 25 of the Act.
DATED at .................. this........... day of ....................1999.
___________________________ JUDGE DENZIL POTGIETER
___________________________ADV. CHRIS DE JAGER
__________________________ ADV. FRANCIS BOSMAN
