DECISION
1. INTRODUCTION
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 application relates to a large number of incidents which are set out more fully below. In respect of most of these incidents, the Applicant has not been charged and there are no legal proceedings pending in respect thereof. In view of the fact that many of the incidents occurred some time ago, it has been impossible either to personally notify or identify victims in relation thereto. A number of steps have in fact been taken to do so, including the placing of newspaper advertisements inviting victims or interested parties to come forward and to participate in the proceedings. None of these efforts has produced any positive results and in the circumstances the application is unopposed.
Applicant's testimony at the hearing related to the various aspects set out more fully below.
2. APPLICANT'S PERSONAL BACKGROUND
Applicant's involvement in the African National Congress ("ANC") aligned politics started at an early stage when he joined the existing student movements in 1982. In 1985 he joined Umkhonto weSizwe ("MK") and he received military training within the country. He was a member of a MK unit under the command of one Modise Matabane. This unit was active in operations inside the country during the period 1985 - 1987. This also forms the time frame for the first set of incidents which the application relates to.
Applicant left the country during 1987 to receive further military training abroad. During his infiltration back into the country he got arrested by the police and was detained in terms of the security legislation for almost one year. He was charged but acquitted on all counts, whereafter he joined another MK unit under the command of one Kevin Mosepele. This unit was active in operations during the period 1990 - 1993 which again forms the time frame for the second set of incidents to which this application relates. The various individual incidents will now be dealt with in more detail.
3. OPERATIONS DURING THE PERIOD 1985 - 1987
Most of the operations during this period were directed at structures representing the then government such as the police, municipal police and community counsellors. In most of these instances, the unit commander would identify the target and then ordered the unit to launch the attacks. In some instances, however, members of the unit also identified targets which were then confirmed by the unit commander.
The respective incidents relating to this period are as follows:
3.1 ATTACK ON JWARA
On the instructions of the unit commander, Modise Matabane, Jwara was identified as a counsellor who could be attacked and intimidated. Community counsellors were regarded as part of the political enemy who were open to attack. Jwara lived in Killarney, Orlando West and his house was guarded by the municipal police. The attack occurred during one evening in 1986 and between approximately 20h00 and 21h00. The house was attacked with handgrenades and a number of shots were fired at it. Applicant is not aware whether any casualties resulted from the attack, but the unit commander was satisfied that the objective of their mission had been achieved.
3.2 ATTACK ON MADIPERE
Madipere was also a community counsellor and she was identified as being particularly troublesome person. The unit accordingly decided to launch an attack on her house which was situated in Zone 1, Meadowlands. The house was attacked with handgrenades and the unit subsequently received unconfirmed reports that some police were injured in the attack. To the best of Applicant's recollection the incident happened during the period 1986 - 1987.
3.3 ATTACK ON FEMALE COUNSELLOR'S HOUSE IN ORLANDO WEST
The unit launched the attack on the house of this counsellor during the period 1986 - 1987 when they caused structural damage to the property with two handgrenades. The objective was to intimidate the counsellor who did eventually resign her position. Her full names and particulars are unknown to Applicant.
3.5 ATTACK AT MZIMHLOPE WOMEN'S HOSTEL
The unit noticed that for some reason this hostel was being guarded by municipal police and they accordingly decided to launch an attack upon these guards. At the time of the attack which occurred during 1987, two municipal police guards were present at the hostel. One handgrenade was thrown at them and several shots fired at them. Both guards sustained injuries in the attack and were hospitalised. Their identities are unknown to Applicant.
3.5 ATTACK ON BOTILE
Botile was a community counsellor who resided in Orlando East. The house was also guarded by municipal police. The unit launched an attack against the property during the period 1986 - 1987. Two handgrenades were thrown at the house and several shots were fired in the direction of the police guard. The unit fled the scene after police reinforcements arrived. There was no indication of any casualties in this attack.
4. OPERATIONS DURING THE PERIOD 1990 - 1993
As pointed out above, this relates to the period subsequent to Applicant's release from custody upon his return to the country. Applicant then joined the MK unit under the command of Kevin Mosepele. This followed the unbanning of the ANC as well as the collapse of the political system in Russia which was one of the principal countries funding the ANC. MK units were accordingly experiencing increasing financial pressure in continuing with their operations.
The individual incidents which occurred during this period will now be dealt with in more detail:
4.1
ATTEMPTED ROBBERY OF A COIN SECURITY : VEHICLE
In view of the mounting financial pressure and shortage of funds, the unit's commander devised a plan to supplement the funds of the unit. This occurred after the commander had contacted the leadership who had indicated that the unit should use its own initiative in raising the necessary funds. The commander decided to constitute a suitably experienced group which would include one unit member. This group would be responsible for executing robberies of cash-in-transit vehicles.
In execution of this plan, a robbery was planned for November 1991. Applicant was ordered to participate in the robbery. The target was a Coin Security vehicle transporting money to the Emmarentia branch of First National Bank. Applicant was the only member of the unit in the group of six persons identified to execute the robbery. Applicant supplied the unit's AK47 rifles and Stechkin machine pistols to be used by the group in executing the robbery. The robbery was unsuccessful and after an exchange of gunfire, Applicant was injured and eventually arrested by the police.
The understanding was that the proceeds of the robbery would be divided between the unit and the rest of the members of the group. Applicant was not entitled to receive any share of the proceeds personally. According to the Applicant there is no express ANC policy in regard to robberies although he accepts that the official position of the ANC is that they have not authorised such actions. In Applicant's view, the political leadership did not give express authority to MK units to commit robberies but left the raising of funds to the initiative of the units. The position of the leadership was that the course of action decided upon, should not compromise the organisation. Moreover, should one of the members of the unit be arrested, care should be taken not to compromise the entire unit. Applicant understood this to be at least tacit approval for the kind of operation they engaged in.
4.2
KILLING OF AN IFP LEADER IN MZIMHLOPE : TOWNSHIP
This incident happened during the period 1991 - 1992 at the height of the political violence involving ANC and IFP members and supporters. The deceased in this incident played a prominent role in IFP activities and attacks upon township residents. His particulars are unknown to Applicant. The deceased was shot and killed by Applicant during fighting involving Mzimhlope residents and IFP hostel dwellers in Mohale Street, Orlando West.
4.3 ATTACK ON RESIDENTS OF ZONE 1, MEADOWLANDS
This incident relates to an attack on residents of Zone 1, Meadowlands by IFP members with the support of white police officers. The houses under attack were situated immediately next to the IFP dominated hostel. The residents were driven from their homes and Applicant together with other cadres shot at the attackers and managed to drive them off. As the attackers fled the scene, Applicant noticed that there were members of the police behind the attackers. According to subsequent newspaper reports, a number of IFP members were killed and injured in the incident. This happened during the period 1991 - 1992.
4.4 ATTACK ON AN UNKNOWN IFP SUPPORTER NEAR THE SOWETO HIGHWAY
This incident also happened during the period 1991 - 1992. One the morning of the incident the occupants of an IFP controlled hostel near the Soweto highway launched an attack on nearby township residents but the attack was repelled. A woman was injured in the attack. During the course of the day, Applicant noticed a man emerging from the IFP hostel. The man was pursued and captured and it transpired that he was an IFP member. As the South African Defence Force arrived on the scene, Applicant shot the man whereafter they fled. Applicant is not aware of the identity of the victim nor whether the victim survived the attack.
4.5 ATTACK NEAR MABASOTHO STREET, MZIMHLOPE
This incident happened on a Sunday during the period 1991 - 1992. On the day in question IFP members launched an attack on township residents near the Merafe hostel. The attackers gathered at the Mzimhlope railway station where the residents refused them entry into the township. The police arrived on the scene and insisted that the group of attackers be allowed to move through the township. On their journey through the township, the group fired at residents with AK47 rifles. A young boy was killed and several people injured. Applicant fled from the attackers as he was unarmed. He collected some handgrenades and met up with the group of attackers near Mabasotho Street. Applicant attacked the group with two handgrenades and fired a number of rounds at them with a pistol. Subsequently Applicant noticed that ambulances had arrived at the scene. He has no knowledge of the number or identities of possible victims.
4.6 ATTACK ON APPLICANT'S NEIGHBOUR
This incident happened during the period 1992 - 1993 and it concerned a neighbour of Applicant at the time one Biza Mtjali of 10431A, Hadebe Street, Orlando West. The relevant circumstances were that Applicant, being a Zulu speaker, managed to infiltrate an IFP office in Johannesburg where information was obtained regarding attacks on suburban trains. At some stage Applicant was warned to stop visiting the IFP office because his neighbour had informed the IFP about his true political affiliation. Applicant discussed the matter with his commander, Kevin Mosepele as well as the late Mr Chris Hani, and it was decided that the neighbour should be eliminated. Applicant noticed that he was being surveilled and that the IFP were aware of his movements. Applicant then left home in order to avoid any danger for his family.
On the day of the incident Applicant noticed the neighbour emerging from a house in Mzimhlope township. Applicant pointed the neighbour out to a member of his unit, one Godfrey, who followed and shot and wounded the neighbour. The neighbour was captured by members of the community. After the neighbour's children begged for mercy, Applicant assisted in having the neighbour set free.
4.7
ATTACKS ON GUARDS AT MZIMHLOPE : HOSTEL
This incident happened at the main gate of the IFP dominated Mzimhlope hostel during 1992. On the day of the incident at approximately 4.00 a.m. Applicant launched an attack upon the guards at the main gate of the hostel. Applicant fired several rounds in their direction and is aware of the fact that a number of them sustained injuries in the attack. Their identities are unknown to Applicant.
4.8 ATTACK UPON MZIMHLOPE HOSTEL SHOPS
This incident happened during the period 1992 - 1993 at the shops inside the premises of the Mzimhlope hostel. The IFP hostel dwellers normally got their transport near the shops. On the day of the incident the hostel dwellers were preparing for the funeral of an IFP member. It was the usual modus operandi of IFP members to attack the area around the hostel before their funerals take place. It was decided to pre-empt such an attack. In the early hours of the morning of the incident, Applicant launched an attack with two RPG7 grenades on the area surrounding the shops inside the hostel. Although it is possible that people could have been killed in the incident, Applicant is not aware of any specific casualties.
4.9 SHOOT-OUT AT THE MAIN GATE OF THE MZIMHLOPE HOSTEL
This incident happened during the early hours of the morning on a Tuesday during 1992. It came to the attention of township residents that the occupants of the Mzimhlope hostel were planning to launch an attack later the morning on the township. Applicant and a group of comrades confronted a group of IFP members at the main gate of the Mzimhlope hostel and the two groups engaged in a battle. Applicant fired several rounds at the IFP group and it later transpired that more than 20 people died and many more were injured on the IFP side. Applicant's group sustained fewer casualties since the IFP group were exposed where they were gathered in the street during the battle. Applicant is unaware of the identities of the victims.
4.10 THE BATTLE AT ANCHOR HIGH SCHOOL
This incident happened during 1993 and was a turning point in the spiralling violence involving ANC and IFP members. On the day of the incident the IFP had a funeral at the Mzimhlope hostel. As the funeral procession moved through Mzimhlope township the funeral-goers shot randomly at residents of the township. A well-respected elderly person, Mr Gwala, was shot and killed in the process. The South African Defence Force members were looking on but neglected to do anything to stop the attacks. The Applicant and other comrades from the township retaliated. This led to a running battle between the two groups that carried on for almost two hours. The fighting became so intense that the South African Defence Force members were compelled to withdraw from the scene. During the course of the fighting Applicant managed to shoot and kill a notorious IFP leader one Nyawane who was pointed out to Applicant. Applicant used a Stechkin machine pistol during the fighting.
A large number of casualties were inflicted upon the IFP group. The victims are unknown to Applicant. This was the last organised attack by IFP members on the residents of Mzimhlope township.
4.11 POSSESSION OF ARMS AND AMMUNITION
In view of Applicant's involvement in the violent political conflict involving ANC and IFP members and because of his MK membership he was forced to remain armed at all times. As a result he was found in possession of arms and ammunition on three different occasions in respect of which the following cases in respect of the unlawful possession of arms and ammunition were brought against him
(a) Langlaagte police station case no. 59/9/94;
(b) Sebokeng police station case no. 519/4/95;
(c) Orlando police station case no. 49/8/93.
On all of these occasions the arms and ammunition were provided to Applicant in his capacity as a member of his MK unit.
4.12 ATTACKS ON MEMBERS OF THE COMMUNITY
Because of Applicant's position in protecting members of the community, they approached him with many problems. This was necessitated by the fact that the police had effectively withdrawn from the township leaving the community to devise their own means of maintaining law and order. One of the community matters which Applicant became involved in related to one Bongani who had killed his entire family. This was a cause for grave concern to the community since it was clear that Bongani posed a great danger to the community at large. The Civic Association and ANC leaders became involved in the matter and a peoples court was convened to consider how Bongani should be dealt with. A decision was taken that Bongani should be killed. Applicant participated in the assault of Bongani who was eventually shot and killed by a person standing next to Applicant.
The further incident concerned one Motiane who lived in Mohale Street, Mzimhlope township. He caused numerous problems and harassed the community to such an extent that a decision was eventually taken to eliminate him. Applicant had a good relationship with Motiane and in an attempt to pre-empt the action by the community, Applicant shot and wounded Motiane in the leg. The injuries led to the community deciding to set Motiane free after he was apprehended in Ntintile Street.
Applicant's attacks upon Bongani and Motiane were related to the political situation prevailing in the township at the time and in particular the complete breakdown of official structures of law enforcement.
Both these incidents occurred during 1992.
5. EVALUATION
Having carefully considered the application as well as Applicant's testimony we are satisfied that his actions set out above, save for the attacks on members of the community, constitute acts associated with a political objective as defined in the Act. It is beyond any doubt that the actions relate to Applicant's political activities as well as the political struggle and conflict which prevailed at the relevant times. We are also satisfied that Applicant had made a full disclosure of all relevant facts in respect thereof as required by the Act. Applicant has furnished as much particulars as possible in the circumstances relating to each of the incidents referred to in his testimony. We bear in mind that these attacks were of a random nature and they happened over a prolonged period of time. Applicant is accordingly totally reliant on his memory which is, moreover, negatively affected by an understandable attempt to psychologically block these unpleasant memories from his mind.
Insofar as the attacks on Bongani and Modiane are concerned, we are not satisfied that these related to the political conflict. Both incidents were concerned with instances of deviant behaviour which the perpetrators were punished for. The one victim appeared to have been mentally disturbed and the other, a common criminal. These are accordingly not acts associated with a political objective.
6. ORDER
In the circumstances we are satisfied that the application complies with all of the requirements of the Act and Applicant is accordingly GRANTED amnesty in respect of all of the offences and delicts established by the evidence in relation to the following incidents which are more fully set out above
(a) Attack on Jwara during or about 1986 at or near Killarney, Orlando West;
(b) Attack on Madipere during or about the period 1986 - 1987 at or near Zone 1, Meadowlands;
(c) Attack on unknown female counsellor's house in Orlando West during or about the period 1980 - 1987;
(d) Attack on a municipal police guard at Mzimhlope women's hostel during or about 1987;
(e) Attack on Botile during or about the period 1986 - 1987 at or near Orlando East;
(f) Attempted robbery of a Coin Security vehicle during or about November 1991 at or near Emmarentia;
(g) Killing of an unknown IFP leader during or about the period 1991 - 1992 at or near Mohale Street, Orlando West;
(h) Attack on IFP members or supporters during or about the period 1991 - 1992 at or near Zone 1, Meadowlands;
(i) Attack on an unknown IFP supporter near the Soweto highway during or about the period 1991 - 1992;
(j) Attack on a group of IFP members or supporters during or about the period 1991 - 1992 at or near Mabasotho Street, Mzimhlope;
(k) Attack on Biza Mtjali during or about the period 1992 - 1993 at or near Mzimhlope township;
(l) Attack on guards at or near the main gate of the Mzimhlope hostel during or about 1992;
(m) Attack upon Mzimhlope hostel shops during or about the period 1992 - 1993;
(n) Shoot-out at or near the main gate of the Mzimhlope hostel during or about 1992;
(o) Fighting between IFP and ANC members and/or supporters at or near Anchor High School during or about 1993;
(p) Unlawful possession of arms and ammunition in respect of:
(i) Langlaagte case no. 59/9/94;
(ii) Sebokeng case no. 519/4/95;
(iii) Orlando case no. 49/8/93;
Amnesty is REFUSED in respect of the attacks on Bongani and Modiane during or about 1992 at or near Mzimhlope township.
In our opinion the persons injured in the incidents referred to in paragraphs (a) - (q), as well as the next-of-kin of the relevant deceased, are victims in relation to the respective acts for which amnesty is hereby granted and they are accordingly referred for consideration in terms of the provisions of Section 22 of the Act.
DATED at
: this
: day of
: 1999.
JUDGE DENZIL POTGIETER
Adv. CHRIS de JAGER
Adv. FRANCIS BOSMAN
PANEL: Potgieter, J; Adv. C. De Jager; Adv. F. Bosman
EVIDENCE LEADER: Ms L. Lockhat
DATE & VENUE: 30 September 1999
Jiss Centre, Mayfair
JOHANNESBURG
ATTORNEY FOR APPLICANT: Adv. D. Geldenhuys
Group 1312, Schreiner Chambers
94 Pritchard Street
JOHANNESBURG
Tel.: (011) 337-1160
Fax : (011) 333-1449
