Decisions

DECISION

The applicants applied for amnesty in respect of the following offences:

1. Housebreaking with the intent to rob and murder, with aggravating circumstances on 6 February 1987;

2. The murder of Matheus Gideon Palvie a 63 year old male on 6 February 1987 on the farm Leeukloof in the district of Cradock;

3. The murder of Jeanette Johanna Palvie, a 54 year old female who died on 15 March 1987 as a result of injuries sustained during an assault on her on 6 February 1987 on the foresaid farm;

4. The robbery of the following goods:

One blessing wall clock;

One antique "Wilson goggies tin containing 26 keys";

One black suit;

One shirt;

One seven star alarm clock;

One 22 rifle serial no. 94980;

One Polaroid camera;

One box containing ten camera flashes;

One key attached to a piece of wood;

One brown belt;

One screwdriver;

One doorknob;

Two bunches of keys;

One gold coloured flick man’s watch;

One blue shirt;

One silver coloured cigarette lighter;

One black case containing nine cassette tapes and eleven empty cassette tape containers;

One Rhoner sportwaffen GMGH med. 115 6.35mm pistol – serial no. 19271;

Eleven rounds of 6.35mm ammunition;

One Parker pen engraved Rustenberg Bottle Store;

A selection of tools;

Four tool boxes;

Two padlocks;

One grey belt;

One brown bag;

One pair of grey underpants;

One black ladies jersey;

Two pairs of grey trousers;

One grey jacket;

One grey short sleeved shirt;

One peach ladies jersey;

One pink sheet;

One brown man’s jersey;

One striped tie;

Two pink pillow slips;

One beige suitcase;

One pair of brown trousers;

One pair of white underpants;

One pair of blue underpants;

One blue notebook;

Three pairs of pyjamas;

One washcloth;

One khaki shirt;

Four ritmeester senior cigars;

One Volkswagen Golf motor vehicle registration no. CAT12884.

5. The illegal possession of a firearm in contravention of Section 2 of Act 75 of 1969 on 6 and 7 February 1987 to wit a 6.35mm Pistol serial no. 192710;

6. The illegal possession of .22 rifle serial no. 94980 on the aforementioned dates;

7. The illegal possession of ammunition on the aforesaid dates;

8. The malicious damage of the property of MG Palvie namely a VW Golf motor vehicle registration no. CAT12884 on 6 February 1987 at Cradock.

At the time of the offences the first applicant was 33 years old, the second applicant, Mr Khundulu, was 28 years of age, Kwakwari was 14 years of age and a further accused Ngolose, was acquitted, was 15 years of age. At the hearing it transpired that the next of kin of the deceased were not notified of the hearing because they couldn’t be traced by the investigating officers. The Committee proceeded to hear evidence but ruled that further attempts should be made to trace them. They were indeed traced after the owner of the farm where the deceased lived, supplied the Committee with the necessary information. The Committee then furnished them with copy of the transcribed evidence. It then transpired that the son of the deceased who lived at Cradock at the time of the murder of his parents recently died and the daughter of the deceased furnished the Committee with an affidavit to which we will refer. The Committee has been informed that a copy of the affidavit was forwarded to the applicant’s legal representative for comment if he would desire so to do.

At the start of the hearing the third applicant informed the Committee that he is withdrawing his application. The Committee fully explained the consequences of such a withdrawal to him, but he persisted in his request. His application was then ruled to be withdrawn and removed from the role. It should be mentioned that at the time of the hearing he had already received parole. He originally was sentenced to 10 years imprisonment, his youth being considered as a mitigating factor. The two other applicants were serving life imprisonment sentences after the death penalties imposed were altered to life imprisonment. Their sentences on the other charges were to run concurrently with the sentence of 20 years imprisonment imposed on the first charge.

The first applicant, Danster, testified under oath and also confirmed the contents of an affidavit sworn to by him and handed in as Exhibit "A". A similar affidavit by the second applicant, Khundulu, was handed in as Exhibit "B". On behalf of both applicant’s letters written by the Cradock Advice Officer were handed in stated inter alia:-

"The motivation is that he responded to a call by the then banned ANC (African National Congress) that the Youth should make our Townships a no go area for Police and informers. Although they exceeded the bound of the call we strongly feel it was because of their political immaturity that they adopted extreme measures.

Further the militant mood of the times, added to their actions but it does not detract from the fact that their actions were politically motivated."

The letters written were identical and dated 20 February 1996 and signed by Messrs. Ntombela and Ngale who indicated that they were respectively the chairperson and treasurer of Cradoya who was then affiliated to the UDF.

Danster stated in his application that he acted with political motivation because of the oppression by the apartheid regime resulting in the killing of some of their leaders. The youth in Cradock then decided to organise themselves and to attack farmers in order to get firearms and ammunition. He further stated on a request to state whether he acted under orders or on behalf of or with the approval of an organisation:

"We committed the offences voluntarily through the decisions of the youth which was decided at the absence of our leaders who were killed and some were detained."

He further stated that no order or approval was applicable and a similar answer given to the question whether he benefited financially or otherwise.

The second applicant in his application stated that the deceased were deeply involved with the SADF and SAP in acting against the community. He further stated that they, like others, kept arms and ammunition that were used indiscriminately against them. They wanted to get hold of the arms in order to defend themselves. His objective was to disarm them and to reinforce their defence unit. He didn’t benefit financially or otherwise and wasn’t ordered to do what he did.

The applicants at the hearing filed exhibits "A" and "B" the contents of which is for the greater part verbatim the same.

In his affidavit, Danster, stated that he didn’t go to the farm out of his own free will but because he received specific instructions from his commander Ben Xolile Sithungu who informed him of a cache of arms at Leeukloof Farm. He was instructed to go to the said farm to disarm the farmer. He further testified that they all knew that farmers had caches of weapons on their farms. The second applicant, Khundulu, also, contrary to what he stated in his application, alleged in his affidavit, exhibit "B" that they went to the farm "upon specific instructions issued by my leader Cde Xolile Ben Sithungu that we should go to the said farm and search for weapons." He further stated:-

"A decision to disarm the said farmer had been taken at a youth meeting (Cradoya) and a SDU meeting." This was not confirmed in exhibits "A" and "B". If any instructions were issued by the said organisation it is clear that they exceeded the bounds of the call made by the ANC. The ANC on various occasions stated that criminal activities like fraud and robbery was never their policy. The Committee was not satisfied that they indeed acted under instructions of their organisation. No member of the organisation came forward to testify to that effect and the only "evidence" produced by the applicants in support of their contention, namely Exhibits "C" and "D", stated that they exceeded the bounds of the call made by the ANC.

It is necessary to deal with the evidence of the applicants as to what exactly happened on 5 and 6 February 1987. In paragraph 3 of their affidavits, "A" and "B", they allege that Xolile Sithungu instructed them to go to the particular farmer who was a police reservist. It later became clear that the owner of the farm was Mr Boy Jordaan. He had moved to Cradock and the two deceased were allowed to live in the farm house who stood empty for a while. Mr Palvie was according to the evidence given at the trial a railway pensioner. This was confirmed by his daughter, Mrs vd Merwe, who also stated that he had a loss of hearing since childhood. As a result thereof he never served and could not serve as a member of the commando or police reservist. His hearing ability deteriorated as he grew older.

The applicants testified that they obtained a lift from one Mpungutye Ralane who went to one of the neighbouring farms. The two applicants were accompanied by Lollie Kwakwari and Lolose Ngolose who lived on the farm with his parents and knew the area well. They arrived on the farm at about 19h30 and went to the house. While they were standing on the verandah planning how to gain entrance, a dog started barking. Ngolose became scared and they retired to his father’s home where they slept.

Ngolose’s father who was ignorant of the purpose of the visit, inadvertently supplied further information that the farmer would visit the farm during the morning to take stock and would then leave. The deceased, to whom Danster referred as the supervisor and Khundulu as a foreman, would also leave during the day of Cradock but will return later that afternoon.

This indeed happened the next day. Jordaan came and left. The Palvies later left for Cradock. While they were away Khundulu and Lollie Kwakwari gained entrance into the house by breaking a window whilst Danster kept guard.

In a statement by Khundulu, received by the Amnesty Committee on 5 June 1997, Khundulu then stated:-

"The farmers returned unexpectedly. They took everyone by surprise. Lollie and I had to use violence to get out of the situation, and also obtain the guns. We used a hammer and one of the big knives when hitting the farmer and his wife thus killing them."

The guns and the farmer’s motor vehicle were taken. Lollie took some clothes as his were blood stained. The motor vehicle was later burnt.

This is quite a different story from the one reflected in exhibit "B", and his evidence before the Committee. He told the Committee that after entering the house through the window which he broke they searched the house for weapons. They found a rifle in one bedroom but no bullets. They saw boxes and broke the padlocks with an axe. There were plates wrapped in newspapers in the boxes and in one of the boxes was a small safe and on opening it he found it contained buttons or police badges. He took this box with the badges to show it to Danster "because it was clear that the farmer was also a policeman because those badges were South African badges. We continued the search. We took two or three hours searching the house but we did not get any weapons or firearms."

Lollie thereupon in the presence of Khundulu packed the goods referred to in the indictment in two suit cases. They then left the house and went back to the house where they have slept the previous night. They enquired from one Dumezweni (a brother of Lololo who directed them to the farm) who they took into their confidence, where they could find the weapons which were supposed to be on the farm. He informed them that the owner of the farm took the weapons with him when he left the farm to stay in town and that the only firearms left were the rifle and two small guns which were presumably taken by the deceased when they left for town. They then decided to wait for the deceased to return in order to get the weapons.

According to Khundulu’s statement, Exhibit "B" "at about 14h00 the farmer’s vehicle was seen from afar." They then ran to the house where Lollie and Danster entered the house while he remained outside as a guard." We are not going to deal with all the contradictions in his evidence and the two statements filed. From the above quotations it is clear that they were not surprised by the unexpected arrival of the deceased. The contrary happened. They were not surprised by the unexpected arrival of the deceased – they surprised and killed the deceased. Khundulu further stated:-

"When I entered the house there was silence. I tried to establish the situation and I heard a slight noise coming from the room next to the kitchen. I went there to check what was going on, Lollie was hitting the farmer’s wife with a hammer. I did not say anything. I returned to the kitchen. I saw the bag on the table. I opened it and found a small firearm and car keys."

They drove off in the car taking two packed suitcases with clothing, the rifle and a wall clock. They testified that they couldn’t find Xolile that evening to hand the weapons to him. The next morning they looked for him again without success at his home. They only found his brother-in-law and sister at home. Lollie sold a suite and the wall clock to them. They were arrested while walking in the street later the same morning.

He further testified that it was instructions that they shouldn’t take anything but firearms "but if it does happen that you take anything more than firearms or other than firearms, we should not fight over whatever that is, we should take everything that we’d got from the farm, firearm or not, to the commander."

His explanation for taking two suit cases of clothing, the selling of a suite and a clock and why he did not keep the police buttons to hand it over to his commander as he was obliged to do with everything they took, is to say the least, unconvincing.

During cross examination Khundulu added that the instructions to disarm farmers went further and authorised them to kill a farmer should he resist to hand over the weapons. There was no evidence that Mr Palvie or Mrs Palvie was asked to hand over any weapon or that they had any weapon on their bodies when they were attacked. The only pistol found was found in Mrs Palvie’s hand bag which she left in the kitchen when she proceeded to the bedroom where she was attacked first by Danster knocking her down and in his own words "left her harmless --- she was not carrying anything in her hands as well. She didn’t look armed."

It is not clear whether the farmer, Boy Jordaan, who was then staying in town, was a member of the commando or a police reservist. The applicants conceded that they had no information that Mr Palvie, the deceased was in any way connected with the Security Forces contrary to second applicant’s allegation in his application that he knew that the deceased were deeply involved with the SADF and SAP. On being confronted with this, Khundulu replied that they considered all farmers to be enemies because it was known that some of them ill-treated their workers. There was no evidence that this applied to the Palvies. The only evidence was that Mrs Palvie bought groceries for Mrs Evelyn Matiwane. The latter saw three people driving away from the farm in the Palvie’s Golf when she was on her way to collect the groceries. She discovered the murders and through her the police was alerted.

The Committee had to decide whether the murders and relevant other offences were associated with a political objective, or whether they were ordinary criminal offences like numerous other robberies which prevailed then and are still prevailing today. Not one of the applicants had a history associated with politics. Mr Khundulu had three previous convictions for theft, two previous convictions for housebreaking with intent to steal and theft and two previous convictions for assault with intent to commit grievous bodily harm. He was in fact released from prison only nine months before he committed the crimes relevant to this application. Danster was released approximately at the same time after serving a 12 year sentence for robbery with aggravating circumstances. It is also hard to believe that items such as one pair of grey underpants, one pink sheet, one blue notebook, one washcloth, four ritmeester cigars and the majority of items stolen, would have been taken to be sold to get money for the benefit of the political movement to which they belonged. The items robbed are rather indicative of the fact that the deceased people did not possess any valuable articles and were pensioners living by grace of the farm owner on his property. There is not a shred of evidence that they were political involved. Even if one would accept that the applicants mistakenly believed that Mr Palvie was involved as a police reservist and was targeted because of that, it still remains a mystery why Mrs Palvie was hammered to death, even after she was rendered harmless by Danster.

On the other side of the scale it seems clear that they went to the farm to obtain weapons. They gained information that the farmer, presumably Boy Jordaan, had a cache of weapons on the farm. After their arrival on the farm they found that he had moved to a townhouse and took the weapons with him. They were informed that the other white man they saw on the farm "had a rifle which he used in shooting baboons and some birds." This was presumably the .22 rifle which they found in the house without bullets. They were also informed that he had a pistol which he carried with him. This seems to be the pistol found in the hand bag. There was talk of another pistol and some contradictory statements were made about a pistol found in the possession of Mr Palvie. This seems to be incorrect – only one pistol was found in their possession and if another was taken they failed to disclose what happened to that one.

They testified that their motive was to find weapons to enable Cradoya to make the area where they lived a no go area for the police. This is to a certain extent corroborated by the letters referred to above written by the Cradock Advice Office where it is stated that they were motivated by a call by the ANC but that they exceeded the bound of the call. Apart from this they testified that they were prepared to attack Mr Palvie because farmers were involved in patrolling the township where they lived. The police buttons referred to at the hearing were not mentioned in their applications, neither did Danster or Kwakwari mention it in their supporting affidavits. Khundulu mentioned it for the first time in his affidavit handed in at the hearing. It still remains a mystery why he threw what he considered to be proof of Palvie’s involvement with the police away and didn’t keep it to be handed to his commander as he was obliged to do with everything taken.

Even if they decided at the scene to take some items for personal gain the fact remains that they went to the farm with the motive of getting weapons to be used against the police in the political struggle and not with the motive to kill people not resisting their attempt. The questions still to be answered are whether the other criteria mentioned in Section 20 (3) of Act 34 of 1995 have been met in the light of the fact that they are not only applying for amnesty in respect of the robbery of the weapons but also for two murders.

The context in which the offences were committed has to be considered. It is common cause that there was political conflict in the Cradock area. The motive to obtain weapons was related to this, but the murders in itself didn’t form part of a political uprising or even a reaction thereto. The objective of the act was directed against farmers supporting the police. The applicants might have been mistakenly under the impression that Mr Palvie fell in that category but there is no evidence or facts on which such a belief concerning Mrs Palvie could have been based on. The attack on her was an attack on a private individual and the goods and car stolen was private property.

The act of disarming farmers might have been approved of by the Cradock Advice Office but they clearly disapproved of the fact that the applicants exceeded the bounds of the call to make the township a no go area.

The killing of a farmer and his wife living 25km from the township seems also to be disproportionate to the objective of making the township ungovernable. On the applicants’ own version there was no reason to kill Mrs Palvie and no reason for a second attack on her after she was left harmless and was not in possession of any weapon.

In the result the Committee finds:-

1. That the offence to rob weapons from the deceased was associated with a political objective. That the robbery of the other items were for personal gain. The act, however, doesn’t provide for amnesty on a portion of a charge where all the items were grouped together under one charge and the sentence relates to all the items. The intention of Parliament in enacting The Promotion of National Unity and Reconciliation Act clearly was to grant amnesty to people involved in the political struggle and committed to what they regarded to be noble political ideals. Amnesty should be excluded to those trying to enrich themselves or tainting their noble motives with personal gain or malice. It also seems illogical that a person charged with robbery of a pistol worth R500.00 for political purposes but at the same time stealing goods to the value of say R30 000.00 or R100 000.00 for personal gain should be granted amnesty simply because all the stolen goods were listed in one charge. (It might even have been a splitting of charges if an attempt was made to separate it). It seems that Parliament dealt with this problem by inserting at the end of section 20 (3) of Act 34 of 1994 an exclusionary clause reading as follows

"but does not include any act, omission or offence committed by any person referred to in subsection (2) who acted:-

(i) for personal gain-----------------".

This clause overrides all the previous criteria and qualifications. An applicant might seem to qualify for amnesty but as soon as this clause becomes applicable – it can be referred to as the "but" – clause – he becomes disqualified and cannot be granted amnesty in respect of that offence.

They might have had a political objective in the beginning to obtain weapons but they themselves changed that objective the moment they started grabbing articles like cigars for personal gain and pleasure. Then the "but" – clause came into operation and they disqualified themselves to be applicants for amnesty in that respect.

As stated applicant Kwakwari withdrew his application. As far as Danster and Khundulu are concerned:

Amnesty is therefore REFUSED on counts 1 and 4.

2. That the applicants believed, albeit mistakenly, that Mr Palvie, was an opponent in the political struggle and he, in the process of obtaining weapons from him, was attacked, resisted their efforts and was killed. Amnesty is GRANTED to them in respect of the murder of Mr Palvie.

3. That the murder of Mrs Palvie was disproportionate to the objective of stealing the weapons. That no evidence exists that she was a political opponent in any way involved in the struggle, that she was already rendered harmless, when she was killed and that she was killed out of malice. Amnesty is REFUSED in respect of the murder of Mrs Palvie.

Amnesty is GRANTED in respect of counts 5 to 8.

It is recommended that the dependants of the deceased be declared as victims in terms of the Act.

SIGNED AT CAPE TOWN ON THIS THE ________ DAY OF ___________ 2000.

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JUDGE A. WILSON

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ACTING JUDGE D. POTGIETER

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ACTING JUDGE C. DE JAGER