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"). Applicant’s amnesty application relates to a number of incidents which have been dealt with on different occasions by the Amnesty Committee. The incident dealt with in this decision is the only outstanding matter. Applicant was granted amnesty in respect of all of the incidents previously finalised.
The present matter deals with the killing of Mrs Zandra Mitchley, her son Shaun Mitchley and the latter’s friend Claire Silberbauer as well as the attempted killing of Mr Norman Mitchley and Shaun Mitchley’s other friend Craig Lamprecht. The incident occurred in the course of the morning on 19 March 1993 at the intersection of Grassmere Road and the Johannesburg/Vereeniging highway, Eikenhof, Gauteng ("the Eikenhof incident"). The car of the Mitchley couple in which they were transporting their son Shaun and his two friends was fired upon by assaillants in a green BMW who pulled up alongside the vehicle at the intersection.
The matter has a long and controversial history which needs to be set out. Pursuant to the incident three members of the African National Congress ("ANC") were arrested. They confessed to the attack whilst in police custody and were eventually convicted in the Transvaal Provincial Division of the then Supreme Court after they unsuccessfully attempted to contest the admissibility of the confessions made by them. The trial Court found that the confessions were freely and voluntarily made and took the contents into account in convincing the accused. Two of the accused were sentenced to death and the remaining accused to long term imprisonment. Given the subsequent turn of events and the merits of the present amnesty application, these death sentences were mercifully never executed. Some time after the abovementioned convictions and sentences, the present applicant submitted an application for amnesty taking responsibility for the Eikenhof incident. This led to the three ANC accused successfully petitioning the Supreme Court of Appeal to re-open their case and to lead further evidence concerning the merits of the Eikenhof incident. We have been informed at the hearing by Mr Mbandazayo, who appeared on behalf of the present Applicant, that the National Director of Public Prosecutions instituted his own investigation into the matter and concluded that there was no basis for continuing with the prosecution of the three ANC accused who were eventually released during or about November 1999.
Given the real prospect of further litigation relating to the matter of the three ANC members, we refrain from commenting extensively on the merits of that matter. It is, moreover, not necessary for present purposes to decide any issue relating to the merits of that matter. We merely point out that in view of our decision on the present application for amnesty, it is clear that the three ANC members were not responsible for committing the Eikenhof attack. This view is reinforced by the facts which emanated from the police investigation as reflected in the voluminous documents and records placed before us. It is now necessary to revert to the merits of the matter at hand.
The facts of the matter are largely uncontested and appear from the application as well as the testimony of Applicant as corroborated by Brigadier General R.M. Fihla, a former member of the Apla High Command. Although two victims, Norman Mitchley and Craig Lamprecht, appeared at the hearing, they did not strenuously oppose the application.
Applicant is a seasoned member of the Pan Africanist Congress ("PAC") which he effectively joined in 1984. He left South Africa as a high school student during 1989 and joined the Azanian Peoples Liberation Army ("Apla"), the military wing of the PAC, in exile in the same year. After receiving military training, Applicant was infiltrated into the country. During or about the period January – February 1993, Applicant was deployed as the regional commander of Special Operations in Gauteng by the then Apla Director of Special Operations, Sipho Bulelani Xuma.
On Applicant’s orders, a unit of Apla based in the Eikenhof area, identified a target for attack during March 1993. The objective of the attack was to disrupt the multiparty political negotiations being conducted at the time and thus to advance the position of the PAC and Apla who were strenuously opposed to and were not participating in these negotiations. The initial target was a school bus transporting white scholars. After the target was identified, Applicant reported to and obtained approval for the attack from the Director of Special Operations. Applicant himself participated in the final reconnoitering a few days before the actual attack on 19 March 1993. The unit subsequently reported to Applicant that due to operational circumstances it was impossible to attack the school bus and that they attacked the Mitchley vehicle instead. Both Applicant and Brigadier General Fihla confirmed that the attack was duly reported to the Apla High Command who approved thereof. They indicated that the attack fell clearly within the policy of Apla at the time which made no distinction between what were termed hard or soft targets. The attack in question presumably fell into the latter category. White civilians in particular were legitimate targets for attack as they were regarded as extensions of the apartheid regime.
Applicant confirmed that the attack was the first operation carried out by the Gauteng Special Operations structure and that the operatives were members of an Apla unit under his command. He stated unequivocally that no members of the ANC were involved in the operation and that the members of the relevant Apla unit submitted a written report to him on the attack. It is also common cause that the written report submitted by Applicant to the Apla High Command was eventually confiscated by the South African Police in raids upon the PAC offices in 1995 long before Applicant lodged his amnesty application.
Having carefully considered the matter, we are satisfied that the application complies with all of the requirements of the Act. Applicant has clearly made a full disclosure of all relevant and material facts. We are, moreover, satisfied that the Eikenhof incident constitutes an act associated with a political objective as envisaged in the Act.
In the circumstances, amnesty is hereby
GRANTED: to the Applicant, in respect of all of the offences and delicts resulting from the Eikenhof incident and in particular
1. The killing of Zandra Mitchley, her son Shaun Mitchley and the latter’s friend Claire Silberbauer;
2. The attempted killing of Norman Mitchley and Craig Lamprecht.
In our opinion the next-of-kin of the deceased as well as Norman Mitchley and Craig Lamprecht are victims in respect of the incident and they are accordingly referred for consideration in terms of the provisions of Section 22 of the Act.
DATED AT CAPE TOWN ON THIS __________ DAY OF
______________ 2000.
___________________
D. POTGIETER, A.J.
___________________
J. MOTATA, A.J.
___________________
ADV. N. SANDI
