DECISION
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[1] These applications for amnesty arise out of the death of Mr Batandwa Ndondo ("the deceased") who was shot and killed on 24 September 1985 at Cala.
[2] Three applicants are seeking amnesty in relation to the said death. They are:
(a) Mr Gcinisiko Lamoni Dandala ("Dandala"), who is seeking amnesty for his part in the shooting of the deceased;
(b) Mr Mbuso Enock Shabalala ("Shabalala"), who is seeking amnesty for his part in shooting the deceased; and
(c) Mr Eugene Alexandra De Kock ("de Kock"), who is seeking amnesty for his part in defeating the ends of justice, in that he changed the identity of Mr Shabalala in order to assist the latter to evade criminal proceedings arising out of the death of the deceased that were pending against him.
[3] We do not propose to deal in any great detail with the applications by Messrs Shabalala and De Kock. Suffice to say that we are satisfied that the offences which they committed were politically motivated and that they have made a full disclosure of the relevant facts. In so far as Mr Shabalala is concerned, we accept that the statement dated 3 October 1985 which purports to have been made by him and which appear to have been taken by Colonel E. Willie, was not made by Mr Shabalala. In our view, that statement was prepared as part of a cover up by senior officers of the then Transkei Police Force in order to conceal or cover-up the death of the deceased. On the evidence before us the senior police officers involved include General Kawe, General Damooi and Colonel Willie.
[4] In the circumstances, we are satisfied that the applications by Messrs Shabalala and De Kock comply with the requirements of the Act. They are, therefore, entitled to amnesty in respect of the offences in relation to which they are seeking amnesty.
[5] The application by Mr Dandala requires to be dealt with separately.
[6] He testified that he shot the deceased out of fear that if he did not take part in the shooting, the askaris would kill him. This fear, he testified, arose out of a conversation amongst the askaris on the way to Cala in the course of which they had said that if a person does not take part in the mission in which they are engaged they kill that person after they had completed their mission. Had it not been for this threat, he testified, he would not have shot the deceased. His objective, therefore, in shooting the deceased was to save his life from these askaris. His motive in shooting the deceased was, therefore, personal. On his own vision, he did not shoot the deceased for political reasons.
[7] Apart from this there are further reasons why his application should fail. We are not satisfied that he has made a full disclosure of all the relevant facts. We say this because his evidence was both unsatisfactory on the crucial question as to why he took part in the killing.
[8] In his evidence he testified that he took part in the killing because he feared that if he did not, the askaris, (Mr Shabalala, Bra Moss and Ms Shosha) would kill him. This fear arose out of a conversation he had overheard on the way to Cala when the askaris said they kill a person who does not take part in a mission in which they are engaged. In a statement made on 2 October 1997, he did not mention the fact that he shot the deceased because he feared that he might be killed. In fact, he could not, on the version he put forward in that statement, say so. In that statement he stated that:
"What I realised later is that these were askaris. Askaris are trained terrorists. I realised it after the offences was committed."
Yet in an affidavit he deposed to on 4 June 1998 and in his evidence in chief before us, he stated that he realised that he was in the company of the askaris on the way to Cala which was before the offence was committed.
[9] When he was asked to explain this apparent conflict in his evidence, his explanation was both contradictory and unsatisfactory. He said that what he was trying to convey in his statement of 2 October 1997 was that he only became aware of the name "askari" after the killing. This explanation is plainly contradicted by what is stated in the statement which is quoted in the preceding paragraph. Even if this explanation were to be accepted, it is difficult to understand why it was necessary to mention that he only became aware of the name askari after the killing. However, his explanation must be viewed against his failure to mention in that statement that he took part in the killing because of fear for his life.
[10] In cross examination he was asked why he had not mentioned in his statement made on 13 November 1985 that he took part in the killing because of fear. He gave conflicting answers. He first said at a time of making the statement he did not recall this fact. When asked why he would recall this fact 13 years later, he changed his previous explanation and said that the people who were assisting him to make the statement told him that he "must not disclose everything by then so as to not destroy my co-accused at court".
[11] During his evidence in chief, he was asked what was his intention in joining the shooting. His answer was that he intended to arrest the deceased. He said he knew that the deceased was "a trained terrorist who was fighting the government". His intention in shooting at the deceased "was to catch him, to prevent him from running away because he was a trained member of the ANC". Nothing is said about fear as being the motivation for the shooting. Yet he made it clear that had it not been for the fear he would have not taken part in the shooting.
[12] These contradictions must of course be viewed against the unsatisfactory nature of his evidence on the crucial question whether he knew the deceased. He was not an ordinary member of the security branch. He belonged to a special unit which operated underground and which was formed in order to infiltrate anti-government organisations. This unit was based in Umtata. Yet he testified that he had never heard of the deceased until the day they went to arrest him. The deceased was a high profile political activist in the Transkei. He was suspected of having placed a bomb at a Wimpy. In these circumstances, we find it highly improbable that Mr Dandala would not have known the deceased.
[13] The cumulative effect of these contradictions and the unsatisfactory aspects in his evidence on material issues, is that we are not satisfied that Mr Dandala has made a full disclosure of the relevant facts. In the result he has not satisfied the requirements of the Act.
[14] To sum up therefore:
(a) Applicants Mr Mbuso Enock Shabalala application number AM5727/97 and Mr Eugene De Kock application number AM0066/96 have satisfied the requirements of the Act. They are therefore, GRANTED amnesty in respect of the death of Mr Batandwa Ndondo.
(b) Applicant Mr Gcinisiko Lamoni Dandala, application number AM6535/97 has not satisfied the requirements of the Act. His application for amnesty is therefore, REFUSED.
Signed:
: JUDGE S NGCOBO
: ADVOCATE S SIGODI
: MR J B SIBANYONI
