DECISION
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This application flows from the killing of W/O D W Van der Spuy a member of the motor vehicle crime investigation section of the South African Police in or near Komatipoort Mpumalanga on 29 October 1992.
The hearing of the application commenced on 7 December 1999. It was duly completed and full argument was heard. Sometime hereafter, the applicant, a member of the ANC and former MK commander, applied for the reopening of the hearing on the basis that he did not have a full understanding of the amnesty process at the time that the matter was heard. He had for this purpose obtained the services of another legal representative. The application for a reopening of the hearing was granted on 4 February 2000, whereafter the applicant indicated that he was also applying for amnesty for the attempted murder of one O’Farrell, then a constable, who had accompanied Van der Spuy on the day of the incident. The applicant then proceeded to present supplementary evidence.
Originally the applicant had only applied for amnesty for the murder of Van der Spuy. Obstructing the course of justice, illegal possession of a firearm and illegal possession of ammunition. There was no mentioned of the attempted murder. In this regard it is significant that he was never charged with attempted murder but only the other offences in respect of which he applied for amnesty and of which he was convicted and sentenced to forty years imprisonment. This leads to an inference that the attempted murder is something knew introduced by the applicant to favour his amnesty application.
Both the applicant and O’Farrell testified at the hearing. His application was opposed by O’Farrell who claimed to have been severely assaulted by bystanders after the shooting of his colleague. O’Farrell based his opposition on the lack of a political objective on the part of the applicant. According to his evidence he and the deceased, Van der Spuy, had gone to the applicant’s residence in broad daylight to investigate possible motor vehicle theft. They informed the applicant hat they were policemen, whereupon the applicant grabbed the deceased’s firearm and shot him. The applicant’s version lacked consistency in respect of various aspects relating to the incident and the reason for killing the deceased. In the end he averred that there was a general instruction from the MK leadership that policemen should be killed. This evidence was offered at a very late stage of the reopened hearing and only after extensive questioning by members of the panel. He also conceded that he had not, prior to the incident, killed or known of any killing of a policeman by any of those under his command as a result of the alleged instruction.
The panel, in assessing the political objective of the applicant, viewed the incident against the background of the evidence of the applicant that he had continually been harassed by members of the security police and given the history of the applicant’s political background, had little difficulty in accepting his evidence, even at that late stage of the political struggle. However, many other aspect of the applicant’s evidence was contradictory and extremely unsatisfactory.
In his written application, the applicant stated that he thought the two plain-clothes policemen who come to his home in a tow truck were thieves who wanted to steal from him. When questioned at the hearing he attributed this to a misunderstanding between him and the person who assisted him in filling out the application form. He also explained that he did not mean thieves but criminals because he regarded all policemen as criminals. It is significant that at the criminal trial he also stated that he thought they were there to steal. Although he testified at the amnesty hearing that he had lied at the criminal trial, the evidence at the trail is confirmed by the statement in his application form and leads to an inference that this probably the true state of affairs. Furthermore, the applicant conceded, after his rather belated claim that there was a general instruction to kill policemen, that he knew of no policeman who had been killed either by him or anybody under his command.
When questioned about the group of people who were allegedly present at the time of the killing, the applicant vehemently denied their presence and called it a "blue lie". Only later after much cross-examination he conceded their presence and rather unconvincingly explained that he did not want to implicate them in the incident. This reflected very negatively on the applicant’s credibility in general.
This in the light of the many inconsistencies, contradictions and the differing versions of the applicant as set out above, the committee is of the view that the applicant has failed to make full disclosure of all relevant facts and accordingly the application is REFUSED.
Despite our refusal of this application, the committee is of the view that in the light of the continued and considerable harassment that the applicant was subjected to and particularly in the light of the extremely harsh sentence, that the applicant received this is an appropriate case for executive intervention.
Accordingly, we recommend that the ministries of Justice and Correctional Services investigate the matter with a view to affording the applicant an appropriate reduction in sentence.
SIGNED AT CAPE TOWN ON THIS THE 27th DAY OF NOVEMBER 2000
________________________ KHAMPEPE S A J
________________________ ADV F J BOSMAN
___________________________MR I LAX
