DECISION
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The applicant applied for amnesty in respect of a number of offences.
At the hearing held at Bloemfontein on 27 March 1997 it was decided that only the following incidents would be dealt with at that stage:
1. The killing of Jonas Raboshoanana Ramphalile on 15 June 1990 at Plot 80, Frisgewaagd, district Kroonstad.
2. The murder of Zacharia Mofokeng at Beltrim, in the district of Sasolburg on 2 January 1991.
3. Defeating the ends of justice flowing out of acts connected with the above mentioned incidents.
The other incidents stood over to be heard later. The applicant was convicted and is presently serving goal sentences of 5 years for culpable homicide for the Kroonstad incident, 13 years for the murder in Sasolburg case and 14 years for defeating the ends of justice. The sentences are running concurrently so that he has to serve an effective 13 years sentence.
A great deal of the evidence led before us related to the back ground and the then prevailing circumstances when these incidents occurred. During the same session the committee had to deal with the applications of inter alia Apla members who murdered a farmer and the committee also took cognisance of the representations made to the Truth Commission by the Security Forces and the PAC.
The applicant was member of the South African Police. At the time he held the rank of captain and was the commanding officer of the Investigative Unit at Sasolburg. He testified about his background and the political situation prevailing at the time. It would be a fair summary of the evidence to describe the situation as critical and almost an open war situation. Apla had launched operation Great Storm which involved a new pattern where according to the PAC representations to the TRC civilians within the white community were targeted.
Apart from the evidence of the applicant the president of the Free State Agricultural Union, Dr Gous, gave oral evidence before the Committee and a petition signed by farmers supporting amnesty was handed in. The application for amnesty was not opposed, but it remains to be decided whether his application falls within the ambit of Act 34 of 1995.
According to the evidence of both Dr Gous and the applicant, the murders which they considered were politically motivated, differed from ordinary criminal motivated murders in the following respects:
· A politically motivated murder was usually more brutal and cruel than a ordinary hit and run murder connected with robbery.
· where political motives were involved, in the majority of cases very little was stolen. Usually the murderers were satisfied to take the weapons and ammunition and cash, if found. They were not interested in taking TVs and radios for instance which could hamper their escape or later link them with the crime.
The applicant testified that during 1990/1991 he investigated several murders of elderly people, farmers and policemen at Ellington, Steynsrust, Edenville and the Kroonstad police district on the instructions of Colonel Voigt. The latter was his commander and informed him that these murders were carried out because of the slogans "kill a farmer kill a boer" and "one settler one bullet". Colonel Voigt then coined the slogan "one killer one bullet". The applicant testified that he was regarded as Colonel Voigt’s greatest confidant and he in turn respected Colonel Voigt and trusted him in every respect.
The killing of Mr Ramphalile
He testified that Colonel Voigt on 15 June 1990 instructed him to take Ramphalile (the deceased) to the farm Frisgewacht where a certain Bezuidenhout was brutally killed with an axe and his wife assaulted to such an extent that she was left for dead. Before leaving Voigt showed him the body of the deceased at the mortuary and they both came to the conclusion that this was another political murder. Voigt then told him to see to it that the suspect should get a chance to escape and then to do the necessary, and see to it that this man does not stay alive.
He informed the applicant that he will personally thereafter visit the scene. After the deceased had pointed out certain spots at the murder scene, the applicant directed him to a rondavel next to a reed bush. When the deceased walked into the reed bush the applicant shot and killed him. He thereafter reported that the deceased attempted to escape. Colonel Voigt was informed, came to investigate the scene and congratulated the applicant.
The applicant testified that he was convinced that the deceased committed the murder because he identified the scene of the murder, pointed out certain positions and blood spots in the kitchen and the bedroom. He further testified that apart from Colonel Voigt advising him that it was a politically motivated murder and that the deceased was a member of either the ANC or PAC, he himself came to the same conclusion after visiting the scene and applying the criteria referred to above.
A few days after the shooting Voigt, the applicant and constable Mojafe falsely reconstructed the scene of the shooting and this was the cause of the later conviction for defeating the ends of justice.
The murder of Mr Mofokeng
As far as the murder of Mr Mofokeng on 2 January 1991 is concerned the evidence was that the deceased was under arrest for the assault of Mr Meiring at Kragbron. The applicant was asked by captain Herbst to assist in the investigation. When he arrived at the scene Mr Mofokeng had already been arrested.
The same pattern followed - he was taken to an adjacent farm and shot on the pretext that he tried to escape in a Gumtree bush. The applicant further testified that he believed the deceased was a member of APLA.
Questioned about his own motive the Applicant replied that he wanted to stop attacks and the murder of farmers and aged people. He believed that the murders were committed by political activists and that were motivated by what was said by political leaders and slogans that they sang and that it was common knowledge that the PAC’s policy was to take the land back, that they were looking for firearms to enable them to continue with further intimidation. He based his belief on the cruelty of the murders and the nature of the articles stolen and the nature of the articles left behind. It differed from ordinary thefts. In this he was supported by Dr. Gous who identified four criteria, how brutal the attack was, what was stolen, the weapons involved and the way they entered the building or premises.
In analysing the killing of Mr Mofokeng, it became clear that the criteria testified to by Dr Gous were not met in this case, (not even those set by the applicant himself) to ascertain whether it was a political motivated murder. This was not a brutal killing of a farmer.
The victim although severely assaulted, was not killed. As we understood the evidence it was established that a political motivated attacker’s objective was to kill his political opponent. He would have made sure that the victim would not survive and that his mutilated body would send shock waves through the community.
According to the applicant one of the objectives of the murderers of farmers was to scare farmers off the farms so that they could repossess the land. The victim in this case lived in Kragbron, a small village near Sasolburg. The assault on him could not serve this objective.
There was nothing to indicate that the attack on the victim was not an ordinary criminal act. Even if the applicant had a suspicion that the attack was associated with politics, there is no evidence to show that this would have been a reasonable conclusion.
A third distinguishing factor in this incident was that the applicant did not receive any orders from Colonel Voight. In fact he did not even bother to contact the Colonel before he carried out his decision to kill the arrested suspect.
A fourth factor was that the applicant and some of his colleagues decided to kill the deceased before the had even saw him or the scene or the victim of his attack. When they took the decision they had not seen or heard any evidence which could have indicated a political motivation for the assault. They did not bother to ask the victim of the assault whether he knew his attacker and whether they might have had personal differences.
After considering the applications the committee had to take the distinguishing factors between the incidents into consideration. The evidence that Colonel Voight ordered the elimination of Mr Ramphalile was not readily accepted but was to a certain extent corroborated by the fact that one of the investigating officers told the applicant that had Colonel Voight still been alive he would have been prosecuted too. The applicant’s evidence in this respect cannot outright be rejected. The fact that Voight told him that the deceased is either PAC or ANC may indicate that Voight was uncertain about the deceased’s affiliation but was certain that he was a member or supporter of one of the liberation movements who opposed the government.
The committee after considering the evidence concluded:
1. Amnesty is GRANTED to the applicant in respect of the following offence
a. The murder of Jonas Raboshoanana Ramphalile on 15 June 1990 at Plot 80, Frisgewaagd, district Kroonstad.
2. Amnesty is REFUSED in respect of:
a. The murder of Zacharia Mofokeng at Beltrim, in the district of Sasolburg on 2 January 1991.
b. Defeating the ends of justice flowing out of acts connected with the above mentioned incidents.
The committee recommends that the investigative unit should try to trace the relatives of the deceased of Mr Jonas Reboshoama Ramphalile and Zacharia Mofokeng and report back to the secretary of the committee to take the necessary steps to declare them as victims in terms of the act.
SIGNED ON THE _______ DAY OF ______________ 1999.
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JUDGE A WILSON JUDGE B NGOEPE
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ADV C de JAGER
COMMITTEE: Judge Wilson, Judge Ngoepe and Adv C de Jager
DATE OF HEARING: 12 May 1997, 27 March 1997
VENUE: BLOEMFONTEIN
EVIDENCE LEADER: Adv J Mpshe
COUNSEL FOR APPLICANTS: Adv Z L Madasa
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