DECISION
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The Applicant is applying for amnesty in respect of offences set out in the indictment, Annexure "A" hereto, excluding charge 9, which have been summarised as follows under the heading:
THE STATE VERSUS MPASA JACOB RAPHOLO
A 30 year old Black male and a South African Citizen of Plot No. 3, Uitkyk, Bochum (hereafter referred to as the accused) is guilty of the following counts:
i. Murder;
ii. Attempted murder;
iii. Attempted murder;
iv. Attempted murder;
v. Attempted murder;
vi. Contravention of Section 32(1) read with Sections 1, 32(6), 32(), 39 and 40 of Act 0 of 1969;
vii. Contravention of Section 25(1) read with Sections 1, 39 and 40 of Act 70 of 1969;
viii. Contravention of Section 32(1) read with Sections 1, 32(6) 32(7), 39 and 40 of Act 75 of 1969;
ix. Robbery with aggravating circumstances, as defined in Section 1 of Act 51 of 1977;
x. Attempted theft;
xi. Attempted murder;
xii. Attempted murder;
xiii. Attempted robbery with aggravating circumstances as defined in Section 1 of Act 51 of 1977;
xiv. Attempted murder;
xv. Contravention of Section 2, read with Section 1, 39 and 40 of Act 75 of 1969;
xvi. Contravention of Section 36, read with Sections 1, 39 and 40 of Act 75 of 1969;
xvii Contravention of Section 32(1) read with Sections 1, 32(6), 32(7), 39 and 40 of Act 75 of 1969.
Alternatively, to charges 1 - 8 and 15 - 17 Terrorism in contravention of Section 54(1) read with Sections 1, 54(4), 54(6), 54(7), 64, 68, 69 and 73 of the Internal Security Act 74 of 1982.
The Applicant testified that he joined uMkhonto weSizwe in 1985, received training in Angola and Yugoslavia and returned to Angola in 1986.
In 1988 he received instructions from Chris Hani to infiltrate the Republic of South Africa through Botswana. He was appointed as commander of a unit of seven who crossed the border in the vicinity of Ellisras and based themselves near Beauty on the banks of the Palala River. On the morning of 8 August 1988 they were surprised by a tracking unit of the SAP and a battle ensued around about 16h00. One member of the Unit, James Kgwatlha as well as Constable N C Claasen of the SAP were killed whilst the Applicant and his deputy, Mike Makwena, as well as W J van Rooyen of the SAP were wounded. The Applicant and the other five members of the unit managed to escape during the following night and managed to cross the border back into Botswana. They had to abandon the weaponry referred to in charges 6 and 7 which they brought with them into the RSA. They were arrested in Botswana and deported to Zambia. This incident is dealt with under charges 1 to 7.
The Applicant and his unit infiltrated the RSA with the political objective to destabilise the then government.
The Applicant and a comrade, Willy Maditsi, again managed to infiltrate the RSA through Swaziland towards the end of 1989 to prepare underground bases for future attacks on the RSA government. The Applicant, who was born on the farm Uitkyk near Bochum in the Pietersburg district, decided to operate in that area. They managed to bring handgrenades into the country which were later found by the police and which formed the basis of charge 8.
The Applicant testified that he and Willy Maditsi separated and agreed to meet again at a certain venue near Groblersdal after December 1989. Before separating they discussed the problem of getting funds necessary for their own maintenance and the carrying out of operations. They agreed that they should attempt to obtain money by robbing government institutions. The Applicant didn't approve of robbing private institutions or ordinary civilians. Maditsi later reported to him that the robbed a filling station at Roedtan. The Applicant was not present and did not approve of this. Up to the present time he disassociates himself with this incident and maintains that he is not guilty of the offence reflected in charge 9 and doesn't apply for amnesty in this regard.
The Applicant accepts responsibility for the offences reflected in charges 10 to 13. The victims Gilau and Van Dyk were employees of the government serving in the Railway Department. The offences were related to an attempt to rob a motor vehicle belonging to the department which they needed for their operations. Gilau attended the hearing and after hearing the evidence, accepted the Applicant's apology and reasons for his involvement.
On 12 January 1990 the Applicant and Maditsi were in a park in Pietersburg. They intended to move into Shesego, a Black residential area after dark as they were afraid of being spotted by Askaris who operated in the township. Whilst sitting in the park they were arrested together with other persons for contravening the Separate Amenities Act. While being transported in the police van, they decided to escape. The Applicant, who had a Makarov pistol hidden in a food bag, decided to use the pistol to facilitate the escape. The police van stopped and the door was opened to allow further arrestees to enter. Applicant fired the pistol, wounded the policeman, Vorster, who was in charge and he and Maditsi managed to escape. They immediately separated and fled in different directions agreeing to meet as soon as possible at a safe house near Boyne in the district of Mankweng. It later transpired that Maditsi in fact reached the safe house on 13 January 1990 where he was shot. The Applicant reached the safe house on 15 January 1990 unaware of the fate of Maditsi. On going into the house, he found the police inside waiting for him. He was arrested during the ensuing struggle after being wounded in the leg.
The Committee is satisfied that the Applicant made a full disclosure of all relevant facts, that the offences were associated with a political objective and that all the requirements of the Act entitling the Applicant to amnesty were met.
The Committee is further of the opinion that the following persons should be considered to be declared victims in terms of Section 22 of Act 34 of 1995:
1. The next-of-kin of Nicolaas Cornelius Claasen who was killed on the farm first Hope in the district of Ellisras on 8 August 1988;
2. Willem Johannes Jacobus van Rooyen who was wounded, Lenya Alpheus Mashabela, Pieter du Plessis and Machiel Andries Stephanus Pretorius who survived the attempt to kill them on the above-mentioned occasion;
3. Otto Bousema van Dyk and Gert Cornelius Johannes Bilau, victims who were employees of the SARS at Cordelfos Railway Station on 9 January 1990;
4. Franci Phillip Vorster, a member of the SAP stationed at Pietersburg on 12 January 1990.
For the reasons mentioned above, amnesty is GRANTED to the Applicant in respect of all the offences listed in Annexure "A" hereto, excluding charge 9, in respect of which guilt is denied and no amnesty was sought.
SIGNED at CAPE TOWN this day of 2000
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JUDGE S MILLER
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ADV N SANDI
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MR J B SIBANYONI
