DECISION
The applicants are Basil Fani Msibi, hereinafter referred to as the first applicant and Thuso Paulos Tshika hereinafter referred to as the second applicant.
Both applicants have applied for amnesty in respect of a number of incidents that took place in KwaZulu-Natal during 1986. The subject matter of the present hearing is:
(a) an attack on the Osizweni Police Station on 10th October 1986 in which both applicants participated and during which two policemen namely Mr Simon Thamsanqa Ndwande and Vusumusi Hezekiah Nene were shot and wounded; and
(b) an explosion at the Glencoe Station, Dundee on 20th September 1986, during which a railway line was damaged but nobody was hurt. The first applicant had identified Glencoe Station as a target and the message that this had to be done was conveyed to one Thembinkosi, (since deceased) the actual perpetrator, by the second applicant upon the order of the first applicant.
There was evidence that the vehicle of one Lebina Ishmael Mazibuko who opposed the application was shot at and damaged at the time of the first incident, but that this shooting had occurred approximately two kilometres away from where the attack on the police station took place. Apart from conceding a possibility that a vehicle driving near the Police Station may have been hit in the cross-fire during the attack on the Police Station, both applicants denied any knowledge of a vehicle or the incident in which the vehicle was allegedly involved. They also denied that they could have been responsible for bullets striking a vehicle two kilometres away from the Police Station. The other victims did not oppose the application. Both applicants gave oral evidence.
The first applicant testified that he had been trained as an MK Soldier, both inside and outside South Africa and that at the time of the incidents under discussion he was the Commander of the second applicant and other members of an ANC cell which had been created in the Newcastle area. First applicant liaised with the command structure of MK in Swaziland who at times approved the targets identified by him. He identified various targets which included the Osizweni Police Station and the Glencoe Railway Station. The Police Station was identified to show that the ANC was there to defend the people's interest and in order to obtain firearms that were stored at the Police Station. He further testified that policemen were seen as legitimate targets in terms of ANC policy and deemed to be the first line in the defence of apartheid. The railway line was targeted in order to bring about sabotage, economic growth and to bring about a diversion of policy resources.
It was decided that first and second applicant and Thembinkosi would carry out the attack on the Police Station. Although the attack was planned in a manner to minimise casualties, there was more resistance than had been expected, hence the wounding of the two victims. After the attack the first applicant left for Swaziland. He has never been arrested or charged.
The second applicant, who had been trained as an MK Soldier in South Africa, confirmed the evidence of the first applicant in so far as it related to him. He further testified that he was arrested and charged in the Pietermaritzburg Supreme Court in 1987 and sentenced to 15 years imprisonment. He was later released in terms of general indemnity granted to political prisoners. This indemnity did not however have the effect of expunging his criminal record hence his application for amnesty.
It is not clear whether the indemnity granted to him was granted in terms of The Indemnity Act, 1990 (Act No. 35 of 1990), The Indemnity Act, 1992 (Act No. 124 of 1992) or the Further Indemnity Act, 1992 (Act No. 151 of 1992). It may even be that he received indemnity or parole by virtue of the powers vested in the State President to pardon prisoners. If indemnity was granted in terms of one of the Indemnity Acts referred to above, it would have had the same effect as envisaged by Section 20(7) of Act 34 of 1995. The result would have been that neither the State nor a private person would have been able to hold the applicant criminally or civilly liable in respect of such an act omission or offence.
It would follow that there would not have been an act, omission or offence in respect of which amnesty can be granted because Section 48(2) of Act 34 of 1995 (the Act endowing the Amnesty Committee with the power to grant amnesty) states:
"48(2) Any indemnity granted under the provisions of The Indemnity Act, 1990, The Indemnity Act, 1992, or The Further Indemnity Act, 1992 shall remain in force notwithstanding the repeal of those Acts."
As the Committee, on the evidence before it, cannot decide whether valid indemnity in terms of the acts referred to was granted or whether the State President by virtue of the powers vested in him granted immunity against prosecution or any other form of relief, the Committee nevertheless decided to grant amnesty in terms of Act 34 of 1995. This may be ex abundanti
: cautela but it could not prejudice any interested party. A refusal of amnesty or a decision not to grant amnesty under the present Act may, however, cause irreparable harm should it transpire that the indemnity testified about was not valid or was not the indemnity envisaged under Section 48(2) of Act 34 of 1995. The fact that the indemnity granted under those Acts did not have the effect of expunging his criminal record would not entitle him to bring an application for amnesty as expungement in itself would not be an offence or delict in respect of which amnesty can be granted if the offence which caused the entry in the records did not exist after the granting of indemnity.
Expungement is the legal consequence of amnesty granted for an offence or delict, it is not something in respect of which amnesty can be granted.
After having considered all the evidence placed before it, the Committee is satisfied that both applicants have complied with all the requirements for amnesty in terms of the Promotion of National Unity and Reconciliation Act 1995, that the offences were committed with a political objective and had made a full disclosure of their participation in the two incidents. The Committee makes no finding in regard to the attack on the vehicle of the witness Mazibuko.
Accordingly, amnesty is GRANTED to:
1. Basil Fani Msibi:
1.1 for his participation in the attack on the Osizweni Police Station in KwaZulu-Natal on the 10th October 1986, and for any offence directly associated with or flowing from this incident. i.e. for his participation in the explosion at the Glencoe Railway Station in KwaZulu-Natal on 20th September 1986 and for any offence directly associated with or flowing from this incident.
2. Thuso Paulos Tshika:
2.1 for his participation in the attack on the Osizweni Police Station in KwaZulu-Natal on the 10th October 1986, and for any offence directly associated with or flowing from this incident. i.e. for his participation in the explosion at the Glencoe Railway Station in KwaZulu-Natal on 20th September 1986 and for any offence directly associated with or flowing from this incident.
We recommend that:
Mr Simon Thamsanqa Ndwande and Vusumuzi Hezekiah Nene are declared victims and referred to the Committee on Rehabilitation and Reparation in terms of the Act.
SIGNED AT CAPE TOWN ON THE
: DAY OF
: 2000.
: JUDGE C DE JAGER
: ADV S SIGODI
: ADV F BOSMAN S.C.
