DECISION
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The applicants are applying for amnesty in respect of the following offences:
1. the murder of Mr R.J.J. Fourie a farmer of the Stormberg in the district of Verkeerdevlei on 12 February 1992;
2. robbery with aggravating circumstances on the same date and at the abovementioned farm.
The applicant added the following offences to their applications:-
1. the illegal possession of a firearm on 12 February 1992;
2. illegal possession of ammunition on the day mentioned.
These offences formed an integrated part of the main offences and were submitted before the final cut-off date for amnesty applications.
All four applicants testified that at the time of the commission of the offences they were members of Apla’s Task Force. During June 1991 the applicants were trained by Jan Shoba in the handling and use of firearms. Shoba was a member of Apla’s High Command.
During 1991 the PAC and Apla launched an operation named "Great Storm" in terms whereof Apla Cadre were instructed to attack and to instil fear in farmers. The purpose was to drive the white farming community from their farms in order "to get the land back". This was confirmed by one Oupa Khotle who gave evidence in support of the applicants. It also accords with the submissions made by the PAC to the TRC.
During November 1991 Shoba instructed the applicants to carry out attacks on farmers in the vicinity of Botshabelo, Tweespruit and Verkeerdevlei. He supplied them with a .38 special revolver for this purpose.
The deceased was identified as a target by applicants Leeuw and Nkgwedi who grew up on the farm. From the evidence it is clear that Nkgwedi’s support of the attack might have been influences by personal grievances.
It is, however, also clear from his own evidence that he would have killed any white person had the opportunity present itself.
The four applicants went to the farm and observed that Mr Fourie and his companion were leaving the farm, apparently going to town. The gate was left open by Fourie. The applicants closed the gate so that Fourie on his return would be obliged to stop and open the gate. They thereafter positioned themselves in the adjacent bushes and awaited the couple’s return. On his return Fourie had to stop the car in order to open the gate. He was shot from behind in the back of his head, Mrs May who remained in the car, was manhandled and the applicant’s drove the car to the farmhouse, with her still in the car.
They searched the house, got hold of two firearms, bound Mrs May’s arms after slapping her and disconnecting the telephone and radio. They drove off in the deceased’s car after taking money, 4 watches, a camera, razors, a calculator, shoes and other personal belongings.
The committee received a letter from Ms Margot Penstone. She requested that the contents should be read out to form part of the record. She stated that the deceased was not involved in any party politics and was a progressive farmer assisting his farm workers to improve their stock, housed them in brick houses with running hot and cold water, built a school for their children on the farm as well as a soccer field.
She stated that she believes that the murder was a pure criminal act. In this she was supported by Mrs May who stated in an affidavit prepared for the trial that the applicants repeatedly asked her where the money was kept and said that they were only interested in valuable articles.
If it was not for the fact that they were alarmed by something and in their hurry to depart could not start the LDV on which further items were loaded, the loss might have been even greater.
The committee is considering the facts in this application took cognisance of the letter and affidavit but had to weight the evidence mindful that these persons did not give evidence before us and that the applicant’s counsel did not have the opportunity to cross-examine them.
The applicants testified that they were instructed to take the property and to hand it over to their commander who would sell it in order to obtain money for the struggle. Their commander, Jan Shoba, according to their evidence would have confirmed this if it was not for his unfortunate death. Their intention was also to hand the motor car to him.
According to a list of stolen property and the estimated value thereof handed in at the trial the motor car was valued at R20 000,00, the 2 firearms and ammunition at R1 320,00 and the balance of personal goods, including a sewing machine, camera, watches, clothing and other effects, at R40 206,00.
The PAC and APLA in their submissions and oral evidence to the TRC stated that Operation Storm involved the killing of farmers and the stealing of weapons.
While stating that they were opposed to armed robbery they referred to "repossession" and to the existence of a Repossession Unit. It is by no means clear what the distinction between robbery and repossession was save that in case of repossession the proceeds would have to be handed over to the Commander to the used for the purpose of APLA.
In the present instance the applicants averred that they were arrested two days after the robbery and did not in that short period of time have the opportunity to hand the property over to their leader. However, the value of the property retrieved was only R7 970,00.
The applicants were sentenced as follows in respect of the robbery with aggravating circumstances which related to the two firearms stolen as well as the personal property of the murdered victim:-
Mr Leeuw - 15 years imprisonment
Mr Magoda - 9 years imprisonment
Mr May - 15 years imprisonment
Mr Nkgwedi - 11 years imprisonment
No distinction was drawn between what might have been property for military use and property taken for personal gain. The committee is therefore faces with the dilemma that the act does not authorise us to grant amnesty in respect of a portion of a sentence. Having found that the murder of Mr Fourie and the robbery of the firearms were offences associated with a political objective the committee is obliged to grand amnesty in respect thereof. No provisions is made in the Act for dealing with offences which have elements of criminality was well as political motivation in it.
Seeing, however, that the overriding intention of the legislator seems to be to authorise amnesty for offences associated with a political objective and not only offences with a direct political objective, amnesty is GRANTED to the applicants.
In conclusion the following decision is made,
Amnesty is GRANTED to the four applicants in respect of:-
1. the murder of Mr R.J.J. Fourie a farmer of the Stormberg in the district of Verkeerdevlei on 12 February 1992;
2. robbery with aggravating circumstances on the same date and at the abovementioned farm;
3. the illegal possession of a firearm and ammunition on 12 February 1992.
The committee also recommends that the children and dependants of Mr Fourie who fall within the prescribed definition of relatives and dependants in terms of Act 34 of 1995 be declared to be victims in terms of the act. These relatives to include his daughter Ms Margot Penstone who could be contacted on 011-447 7712 or fax 011-447 7715 as well as Ms Adrey Cathrine May who was assaulted by the applicants.
Further information can be obtained from Ms Penstone or probably from the manager at 0171-24705.
SIGNED ON THE _________ DAY OF ______________ 1999.
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