DECISION
The applicant is applying for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act 1995, (Act 34 of 1995) hereinafter referred to as "the Act". The offences which he is applying are the following:
1. Armed robbery of an employee of a hotel in Rosebank and for which applicant was found guilty and sentenced to 5 years imprisonment.
2. Armed robbery of an employee of Flamingo Dry Cleaners and for which applicant was found guilty and sentenced to 4 years imprisonment.
3. Armed robbery of a petrol garage in Daveyton and for which applicant was found guilty and sentenced to 15 years imprisonment.
4. Armed robbery of awaiting trial prisoners which took place on --- and for which applicant was sentenced to 10 years imprisonment.
5. Attempted murder of a policeman whilst trying to escape from prison. Applicant was never convicted for this offence.
6. Attempted murder of a certain Mr du Plooy in Standerton during October 1981 and for which the applicant was sentenced to death. The death sentence was later commuted to 30 years imprisonment.
7. Unlawful possession of firearms.
8. Unlawful possession of ammunition.
9. Arson to a bus depot in June 1976.
The applicant made his application by way of filling in his application form and by supplementing the facts by way of a statement, an affidavit as well as a supplementary affidavit.
POLITICAL BACKGROUND
He stated that during 1973 he joined ANC whilst he was staying with a certain Reverend Damoyi in Manzini and with the Minister of Forestry a certain Mr S.D.Z. Dlamini in Mbabane. In 1974 he was employed as a long trip driver at Iscor. Whilst in his employ at Iscor he became an underground operative of the ANC. His main task was to gather information and set underground networks in accordance with military combat work. He also used company cars to ferry arms from Swaziland to South Africa and also created Dead Letter Boxes (DLB). He was also charged with the task of recruiting immigrants particularly the British to join the anti-Apartheid Movement and popularise the work of Peter Hain.
In 1976 just before the 16 June, whilst on leave at work he went to Luanda where he received a crash course training by the Umkhonto Wesizwe in Military Combat Work, Dead Letter Boxes, politics and explosives.
Just after June 1976 there was a big bus boycott and as a result a bus depot was burnt down. The applicant states that he was involved in the burning of the bus depot.
Towards the end of 1976 he recruited a former Rhodesian whom he mistook to be British to join the Anti-Apartheid Movement. It was after this incident that his cover was blown. He was then exposed to the Special Branch Unit. The Special Branch put pressure on him to join them as an informer. He refused to join them and this led to dismissal from Iscor. After this incident he was under 24hr surveillance by the Special Branch. It became increasingly difficult for the applicant to maintain contact with his links in Swaziland. The prospects of being employed were reduced.
He stated that his MK links were Morris Sabelo, Jabu Dumane and a certain Pat Nkutswane. He however states that despite the fact that he was no longer employed, and no longer had access to transport, his orders to continue establishing underground networks in terms of the Military Combat works still stood. It was as a result of these circumstances that he committed his offences.
THE FIRST ROBBERY
The applicant and a certain Peter Mchunu who was a well known criminal robbed an employee of a hotel in Rosebank of money that was intended for their employee's salaries. The applicant and his accomplice were armed and pointed the gun at the employee. They demanded the money which the employee gave to them. They escaped with R7000.00 which they shared equally. The applicant stated that he chose Peter Mchunu in order to use him as a cover in order not to divulge his political involvement.
The second robbery took place in Rissik Street near Flamingo Dry Cleaners. The lady was walking toward Flamingo Dry Cleaners carrying a money bag. She was then robbed by three black men who were unknown to the applicant. However the applicant together with Mchunu pointed their firearms at these three men, took the bag and ran away. There was a sum of R6000.00 in the bag. This money was shared between the applicant, Mchunu and one Dave who was involved at the time of the planning of the robbery but was not present when the robbery took place.
The third robbery took place in Daveyton. The target was a petrol garage. The applicant together with Mchunu robbed the owners of this garage and took a sum of R8000.00. They shared the money. The applicant says he used his share of this money to secure Dead Letter Boxes and to distribute arms to MK operatives.
After his arrest he received orders from Morris through Jabu to escape if possible. The plan was to rob other awaiting trial prisoners who would then lay a charge against him. As an accused person he would have to go to court. He stated that it was easier to escape from court than from prison. The escape plan however failed and the applicant was sentenced to ten years imprisonment for the offence.
On the 31st October 1980 a case of attempted murder was opened against the accused for stabbing a policeman with a knife whilst trying to disarm him of his gun in an attempt to escape. The applicant stated that he was never convicted for this offence.
On 12 August 1981 the applicant together with one George Mntambo and others escaped from prison. On 6th October 1981 they wanted to leave the country. They stopped at Standerton in order to get some food. The applicant remained in the car. George went into the shop to buy some food. George became involved in a fight with a certain white man who turned out to be du Plooy. The applicant went out to stop the fight but the police were called and they were arrested. The applicant learned later from George that he was attempting to rob du Plooy because he was from the bank and had a money bag with him. George reasoned that they needed money to get them as far as Natal. They were both convicted and sentenced to death for this offence. The death sentence was later commuted to 30 years imprisonment. The applicant however states that he takes full responsibility for George's actions as George was his recruit.
In order to be granted amnesty the Committee, after considering an application for amnesty must be satisfied that:-
(a) the application complies with the requirements of the Act;
(b) the act, omission or offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past;
(c) the applicant has made a full disclosure of all relevant facts.
Insofar as Section 20(1)(a) of the Act is concerned, the Committee is satisfied that the application was made on the prescribed form, was properly attested to and was received before the cut-off date.
The main question to be decided is whether or not the acts were committed or associated with a political objective and whether or not the applicant has made full disclosure.
The applicant was the only person to give evidence. No witnesses were called on his behalf. This application was also not opposed.
POLITICAL OBJECTIVE
The applicant has stated that he was a member of the ANC and was a trained MK member. A letter was received from the ANC confirming that the applicant was indeed a member of ANC and an MK underground operative.
According to Section 20(2)(f) of the Act, an act associated with a political objective means any act or omission which constitutes an offence or delict which according to the criteria in subsection (3) is associated with a political objective and which was advised, planned, directed, commanded, ordered or committed within or outside the Republic during the period 1 March 1960 to the cut-off date by any person referred to paragraphs a, b, c, and (d) who on reasonable grounds believed that he or she was acting in the course and scope of his or her duties and within the scope of his or her express or implied authority.
The applicant has stated that when committing the robberies he did not get any orders to commit the robberies. He was asked under cross examination whether or not he knew that the robbery was not part of the policy of the ANC. He answered that he knew that very well. However, he states that because of the task that he was given, he had to use his own discretion as the situation presented itself. It seems that the applicant is relying on what he purports to be implied authorization. The question is whether he had a reasonable belief that he was acting within the scope of his implied authority. The Committee is not satisfied that the applicant had reasonable grounds to believe that in order to be able to move the arms there was an implied order to do whatever including committing robberies in order to have funds to move the arms. Robberies were especially in the late seventies and early eighties not part of the ANC policy.
In the criteria to be used in determining whether or not an act was associated with a political objective, section 20(3) states that one must look at the object or objective of the act, omission or offence, and in particular whether the act, omission or offence was primarily directed at a political opponent or State property, or personnel or against private property or individuals.
In all the cases of the robbery the targets were private individuals. They were not political targets. It is highly unlikely that a trained MK operative would attack innocent people and rob them to pursue a political objective. Also in Section 20(3)(f), one must look at the directness and proximity of the act and to the objective pursued. The applicant committed three robberies on innocent people in order to be able to buy a car which could move the arms from one place to another. The robberies took place within a period of about two to three months. It is highly unlikely that it would have been impossible for the applicant to communicate with the MK in order to get orders on how to move the arms within that period. Further he states that he was always under a 24hr surveillance by the Security Branch and yet the Security Branch did not catch him whilst he was committing these robberies. Further there were no other MK members involved in these offences. All these robberies were done with criminals.
After considering the evidence of the applicant the Committee is not satisfied that the applicant committed first three robberies with a political objective. It thus follows that the other offences after the arrest, armed robbery of awaiting trial prisoners, the attempted murder of a policeman whilst trying to escape from prison were never committed with a political objective.
As regards the robbery and attempted murder of Mr du Plooy the applicant states that he himself knew nothing about his robbery when he went out to go and stop the fight. He clearly denies guilt in this aspect. The fact that he says he is taking responsibility for George Mntambo's actions is only an attempt to bring the offence within the ambit of the Act.
In regard to the unlawful possession or of firearms and ammunition, it is not clear whether these offences relate to the armed robberies for which he is applying for amnesty. If it is so then amnesty cannot be granted because the robberies were not committed with a political objective. In fact the aim was for personal gain.
Amnesty is accordingly REFUSED in respect of all the offences of robbery, attempted robbery, escape, attempted murder and unlawful possession of firearms and ammunition committed by the applicant.
As regards the arson of a bus depot shortly after June 1976, the Committee is prepared to accept that there was a political objective and therefore amnesty is GRANTED for the burning of the bus depot.
Signed at Cape Town on this the
: day of
: 2000.
Judge S. Miller
C. de Jager (AJ)
Adv. S. Sigodi
