DECISION
The applicant applies for amnesty in respect of robbery with aggravating circumstances, attempted murder and the unlawful possession of a 9mm Makarov pistol and ammunition.
The applicant was, on 1 July 1993, convicted in the then Supreme Court, Northern Cape Division, in respect of the abovenamed offences and sentenced to undergo an effective term of eighteen years imprisonment. The incident which gave rise to the charges took place during the morning of 18 January 1992 at the Acme Dry Cleaners in Kimberley. The applicant and five other persons entered the premises with the intention to rob. Ms Sonja Spicer, an employee of Acme Dry Cleaners was shot in the chest and seriously injured during the course of the robbery. According to the trial court record the only item that the robbers stole was a wristwatch which belonged to Ms Spicer.
The applicant was the only person to testify at the hearing of this matter. His evidence may be summarised as follows:
The applicant became a member of the Azanian Peoples Organisation (Azapo) during 1982. He was employed as a union organiser by the Black Allied Construction Workers Union and resided in Johannesburg. He received a telephone call from Hendrik Shimmy Mokgalagadi, a friend and fellow member of Azapo and a trade unionist, who lived in Kimberley. Mokgalagadi told him that Azapo followers were being attacked by supporters of the African National Congress (ANC) in the Kimberley area and that several houses had been burnt down.
The applicant then telephoned Mosibudi Mangena, the commander of the Azanian National Liberation Army (Azanla) who was in Harare, Zimbabwe, and told him of the situation and requested an instruction to fight the ANC. The said Mangena told him that he would consult with Mr Mabuso, a member of the National Executive Committee of Azapo who was based in Johannesburg, and that the applicant should call him back at a later stage. The following week Shimmy Mokgalagadi met with the applicant in Johannesburg and together they decided to obtain money for purposes of purchasing firearms by committing a robbery in Kimberley.
The applicant did not call Mr Mangena back nor did he communicate with Mr Mabuso. He stated that he did not telephone Mr Mangena again "because of the prevailing situation". He thereafter, together with two friends, Rudolf Vundla and Wisdom Vundla, proceeded to Klerksdorp by train where they met Shimmy Mokgalagadi and one Ralph Marutle. They all then proceeded to Kimberley in a motor vehicle.
They decided to rob the Acme Dry Cleaners as they had received information from a driver employed by Acme Dry Cleaners that moneys from various other dry cleaning depots are taken to Acme Dry Cleaners. They expected that if the robbery was successful they would obtain R70 000 to R100 000.
On the morning of 18 January 1992 at approximately 08h30 the applicant, Shimmy Mokgalagadi, Ralph Marutle, Rudolf Vundla, Wisdom Vundla and two friends of Mokgalagadi, namely, Sanky Sehere and Petrus Sehere proceeded to Acme Dry Cleaners in a vehicle driven by Mokgalagadi. Of the seven of them only the applicant and Mokgalagadi were members of Azapo and only those two as well as Rudolf Vundla (who applicant described as being an Azapo sympathiser), knew that the intention was to obtain money to purchase firearms for Azapo. All the others participated in the robbery for personal gain.
Mokgalagadi remained in the vehicle outside and the other five entered the premises. The applicant was the only person who was armed. He was in possession of a 9mm Makarov pistol which he had purchased in Johannesburg the previous year. Upon entering the premises they confronted Ms Spicer who was standing behind the counter. The applicant pointed his firearm at her and demanded that she hand over money. She started screaming and Wisdom Vundla went around the counter and took hold of her, trying to put his hand over her mouth. She was told to keep quiet but she carried on screaming. She reached out for the firearm and according to the applicant, a shot was fired accidentally. The bullet his Ms Spicer in the chest and also his Wisdom Vundla's hand. They all ran out of the premises to the waiting vehicle and then drove away from the scene. The applicant denies that a wristwatch was stolen from Ms Spicer and expressed the belief that the taking of the wristwatch was a story that was trumped up by the police.
The stated that their plan was to share amongst themselves any money that they robbed. The applicant would receive twice the share of each of the others as he had the firearm.
Section 20 of the Promotion of National Unity and Reconciliation Act, No 34 of 1995 (the Act) provides, inter alia, that the Committee shall grant amnesty if it is satisfied that the offences to which the application relates are acts associated with a political objective committed in the course of the conflicts of the past and that the applicant has made a full disclosure of all relevant facts.
It is clear from the evidence that the applicant did not participate in the robbery under instruction or orders from any person in Azapo or Azanla. On the contrary, he ignored Mr Mangena's instruction to telephone him back and he made no efforts to communicate with Mr Mabuso. The robbery was committed without the knowledge of any office holder in Azapo. It is also evident from the testimony of the applicant that the majority of his co-perpetrators in the robbery were not members of the Azapo but were involving themselves purely for personal gain. It would therefore be deceptive to refer to the robbery as being an Azapo operation.
On the applicants version the lion share of the proceeds of the robbery would have gone to common criminals and would not have been used for the benefit of Azapo. The reason given by the applicant for involving his co-perpetrators who were not members of Azapo in the robbery, namely, that he wanted strength in numbers, is unimpressive. The fact that the applicant and one of his co-perpetrators were members of Azapo does not persuade us to believe that there motive in participating in the robbery was political. If the object of the robbery was to benefit Azapo it is difficult to understand why the gang constituted to commit the robbery did not consist of persons who were all willing to allow the proceeds derived therefrom to be used for the benefit of that political organisation. The probabilities are that all the perpetrators participated for their own personal gain.
We are, in the circumstances, not satisfied that the crimes committed by the applicant were acts associated with a political objective as contemplated by the Act. The application for amnesty is accordingly REFUSED.
DATED AT
: THIS
: DAY OF
: 2000.
JUDGE S MILLER
ACTING JUDGE C DE JAGER (SC)
MR J B SIBANYONI
