DECISION
This is an application for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act"). The application relates to an incident which occurred on 18 December 1993 at Leeuwhof Prison, Vereeniging. Pursuant to the incident Applicant and a number of other persons were charged and tried in the Transvaal Provincial Division of the High Court on various counts under case no. CC71/95. Applicant was convicted of a number of offences which are more fully set out later in this decision. Pursuant to his said conviction, Applicant was sentenced to an effective 32 years of imprisonment.
Although the application was opposed on behalf of some of the victims of the incident in question, no other evidence was tendered at the hearing apart from the testimony of the Applicant. According to the evidence, Applicant left South Africa during June 1990 in order to undergo military training in camps of the African National Congress ("ANC") and its military wing Umkhonto weSizwe ("MK") in Uganda. He returned to South Africa during March 1992 and settled in the Vaal area. He became the commander of a self-defence unit ("SDU") in Evaton. Since his return to the country, he and his family were constantly harassed by the members of the then South African Police. He was arrested on various false charges and kept in custody. All of these charges were eventually withdrawn. Applicant was, however, charged with escaping from custody during one of his periods of detention and was eventually convicted and sentenced to 12 months imprisonment. This sentence was served, but Applicant was again arrested on counts of murder. He had no knowledge of these alleged murders. Applicant was often visited by the police throughout his periods of detention and even during the period that he was serving the sentence referred to. During these visits Applicant was removed from his place of detention by the police and was frequently assaulted and tortured. His numerous complaints to the head of the prison where he was held proved to be fruitless. Applicant mentioned his fate to his MK commander, Moses Mnzimande, who frequently visited him in prison. The commander indicated that it was necessary for Applicant to escape from prison in order to escape the situation he was facing and to relocate to an ANC camp in the former Transkei. The commander also undertook to raise the matter with the Headquarters. Subsequently and in execution of the plan to escape, the commander supplied Applicant with a F1 Russian made handgrenade on one of his visits to the prison. It was agreed that Applicant would use the handgrenade in order to take the head of the prison hostage on one of his visits to the cells. Applicant would then force the head of the prison to allow Applicant to escape from custody. Applicant kept the handgrenade in his locker inside the cell while waiting on an appropriate opportunity to implement the plan to escape. On 18 December 1993, a fight broke out in Applicant’s cell. Applicant realised that the prison warders would intervene to stop the fight and would thereafter search the cell for any weapons in accordance with their usual practice. In view of the fact that the handgrenade would obviously be discovered in such a search, Applicant decided to execute his plan immediately to avoid it being foiled by the prison warders confiscating his handgrenade. In the course of the fight inside the cell, the prison warders arrived and intervened. When they unlocked the cell, Applicant produced the handgrenade in order to secure a safe passage out of prison. At one stage, however, the handgrenade was knocked out of his hand by one of the prison warders and it fell to the ground. The handgrenade detonated killing three persons and injuring nine. Applicant attempted to escape but was later apprehended on the prison premises. He was subsequently charged and convicted as set out above.
Applicant now seeks amnesty in respect of all of the offences and delicts which arose from the incident described above. He indicated that his actions were politically motivated in that he was trying to escape the actions of the police who were conducting a campaign to harass and bring false charges against Applicant and other MK members in order to discredit the ANC. These actions were, moreover, aimed at disrupting Applicant’s political role in the community as a commander of a SDU. He intended to continue his political activities once he managed to escape.
Having carefully considered the matter, we are satisfied that the incident in question arose to Applicant executing a plan to escape decided upon jointly with his commander. There is no serious challenge to the version of the Applicant, which we accept as true in the circumstances. We are accordingly satisfied that the Applicant had made a full disclosure of all relevant and material facts as required by the Act. Moreover, we are satisfied that the incident constitutes an act associated with a political objective as envisaged by the Act. We accept that the original intention was not to use the handgrenade to kill anyone. The detonation was not directly caused by the Applicant, whose actions therefore cannot be said to be disproportionate in the circumstances.
We are accordingly satisfied tat the applications complies with all of the requirements of the Act and amnesty is hereby GRANTED to the Applicant in respect of all delicts and offences which resulted from the explosion of the handgrenade at Leeuwhof Prison, Vereeniging on 18 December 1993, more particularly all of the offences of which Applicant was convicted under case no. CC71/95 in the Transvaal Provincial Division of the High Court on 20 March 1995, including:
1. three counts of murder;
2. nine counts of attempted murder;
3. assault with intent to cause grievous bodily harm;
4. common assault;
5. possession of a handgrenade in contravention of Section 32(1)(b) of Act 75 of 1969;
6. attempted escape.
In our opinion all of the victims and the next-of-kin of the deceased in respect of the incident for which amnesty is hereby granted, are victims for the purposes of the Act and are accordingly referred for consideration in terms of the provisions of Section 22 of the Act.
DATED AT CAPE TOWN THIS ___________ DAY OF ________________ 2000.
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D. POTGIETER, A.J.
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J. MOTATA, A.J.
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ADV. N. SANDI
