DECISION
______________________________________________________
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995, as amended (hereinafter referred to as "the Act").
The application relates to an incident which occurred on the 5th July 1990 at about 22h45 where the Applicant and two of his fellow uMkhonto weSizwe ("MK") cadres attempted to rob the Emthonjeni Police Station of weapons but the operation went wrong and an exchange of fire ensued between the police and MK operatives.
The Applicant testified before the Committee that he joined the African National Congress ("ANC") in 1982. He underwent military training in Angola and the German Democratic Republic. In 1989 he was infiltrated into South Africa on a mission in the then Bophuthatswana homeland, presently the North-West Province. The late Chris Hani, Chief-of-Staff, deployed him in the then North-Eastern Transvaal to establish and command units of MK.
While operating in the then Eastern Transvaal, MK discovered that Emthonjeni Police Station, next to Machadodorp was used by askaris to hide their weapons. The presence of askaris in the area presented a threat to their operations and safety. As a MK commander, the Applicant used his initiative and discretion to launch an operation to rob the police station of firearms.
He reconnoitred the police station and drew a sketch. Following their planning and arrangements one member of his unit, namely Solomon Lapulana Chiloane entered the police station through the main entrance. His aim was to execute a hold up of the police and compel them to open the safe containing firearms at the back of the police station. Another member, Shadrack Shakoane was left at the car to keep a lookout. The Applicant went behind the police station and obtained access thereto by jumping over the fence.
Suddenly he heard a shot being fired from a pistol. He immediately knew that they were being fired at because none of the members of his unit had a pistol in their possession. They were armed with shotguns and AK-47's. He immediately proceeded to the reception area where he found Chiloane lying down on the floor, having been shot. He opened fire and one police officer, Mr Solomon Sipho Mbatha, was fatally wounded in the process.
The Applicant retreated to the dead letter box ("DLB") where he hid his weapons. Thereafter he proceeded to Johannesburg and gave a report of the incident to Chris Hani. He then left the country to Botswana and thereafter to Zambia. He left his comrade, Shadrack Shakoane in South Africa. He has never seen him since then. He returned to South Africa in 1991 when the police were still looking for him.
On the advice of the ANC's legal representative, Mr Matthew Phosa, he handed himself over to the Belfast police and was arrested and charged. He was released on R500.00 bail. He applied for indemnity. Since then he has heard nothing about the result of his indemnity application.
The Applicant and members of his unit never intended to kill the police. They were, however, armed so that if they meet with resistance they should be able to use the firearms and escape to evade arrest.
The evidence leader, Ms Mtanga, informed the Committee that she consulted with the policemen who were at the Emthonjeni police station on the night in question, namely Messrs Malope and Mr Mbatha. Both indicated that they do not oppose the application. The necessary notice was served on Sgt. Mahlakoane who was also at the police station. He chose not to attend the hearing.
The evidence leader stated that according to the version of the police the MK member who was killed, Mr Chiloane, asked for water when he entered the police station. The Applicant responded by saying he cannot dispute that but said if that happened, it was not according to the plan. Chiloane was supposed to engage the police in a hold up and drive them behind the police station where there was the safe containing weapons.
When it was put to him that according to the police who were sleeping at the police station, they were woken up by gun shots when their colleague, Mbatha, was fired at, the Applicant disputed that and reiterated that the first shots came from a pistol in the possession of the police.
Having carefully considered the matter, we are satisfied that the Applicant has complied with all of requirements of the Act. He has fully disclosed all the facts relevant to this matter and his conduct constituted an act associated with a political objective. The attempted robbing and stealing of firearms was intended to benefit the ANC and not the Applicant personally.
In the result, the Applicant is GRANTED amnesty as follows:
(a) The murder of Solomon Sipho Mbatha at Emthonjeni Police Station, Machadodorp, on the 5th July 1990.
(b) Sabotage and malicious damage caused to the said police station on the said date;
(c) Attempted robbery and theft of firearms;
(d) Any offence or delict directly arising out of the aforesaid incident.
It is recommended that the next-of-kin of Solomon Sipho Mbatha and the policemen who were present on the scene, namely Messrs Malope, Mahlakoane and Mbatha be declared as victims and are hereby referred to the Committee on Reparations and Rehabilitation accordingly.
DATED at CAPE TOWN this day of 2000
_______________________JUDGE DENZIL POTGIETER
_______________________ADV N SANDI
_______________________MR J B SIBANYONI
