DECISION
______________________________________________________Isaac Semela Mohamane (the 1st Applicant), Solomon Nqaqome Sere (the 2nd Applicant), Jack Tumi Mofokeng (the 3rd Applicant) and Phillip Taemane Mosia (the 4th Applicant) all apply for amnesty in respect of the murder of two members of the Qwa Qwa police force, namely Mokete Benjamin Makau and Tselane Jacobine Mosebi as well as of being in the unlawful possession of firearms and ammunition. The crimes in question took place on or about 5 June 1993 at or near Phuthaditjhaba in the district of Witsieshoek.
The Applicants testified that they were all members of the African National Congress (the ANC) and that the four of them constituted a Self Defence Unit (SDU). The 1st Applicant was the commander of the unit.
The 1st Applicant testified at the hearing of this matter that he received an order from his commander, one Simon Mofokeng, also known as Grey Khumalo, who was the Chief of Staff of the SDU's in the Free State. The order that he received was that his unit should shoot and kill policemen but not to take their weapons. He also received firearms from the said Mofokeng.
The 1st Applicant, according to the evidence of the Applicants given at the hearing, thereafter relayed the order to the other Applicants and they planned an operation to carry out such orders. During the night of 4th June 1993 the 1st and 2nd Applicant decided to go on a patrol. They went to a shopping centre where they identified a motor vehicle that was used by the police. It was parked in the parking lot of the shopping centre. They went to fetch the other Applicants and returned to the parking lot at approximately 22h00.
The 2nd Applicant, who was the driver of the vehicle they were using, was instructed to go and park at a specified place about one kilometre away and to wait for the others there.
The 4th Applicant then went into a restaurant in the shopping centre and shortly thereafter returned to the 1st and 3rd Applicants and informed them that members of the police force were in the restaurant. They then waited until after midnight when a policeman, Moketi Makau and a policewoman, Tselani Mosebi, returned to their vehicle in the parking lot. When they were in the process of entering the vehicle both the 1st Applicant and the 3rd Applicant fired several shots at them. Both Moketi Makau and Tselani Mosebi were killed in the shooting.
The Applicants fled the scene but were arrested a few days later. They were all convicted of the murders and of being in unlawful possession of firearms. They were all sentenced to long terms of imprisonment.
Section 20(1) of the Promotion of National Unity and Reconciliation Act, No.34 of 1995 (the Act) provides that amnesty shall be granted if the Committee is satisfied that
(a) the application complies with the requirements of the Act,
(b) the offences to which the application relates are acts associated with a political objective committed in the course of the conflicts of the past, and
(c) the applicant has made a full disclosure of all relevant facts.
The first of the abovementioned requirements has been complied with in that all the applications of the Applicants were timeously submitted in the proper form.
We are, however, not satisfied that the offences committed by the Applicant were acts associated with a political objective as contemplated by the provisions of the Act. It is apparent from both the judgement delivered at the trial of the Applicants and that of the then Appellate Division of the Supreme Court that one of the police force members murdered by the Applicants, namely Mokete Benjamin Makau, was the investigating officer in a case of armed robbery in which the 1st Applicant was a suspect.
The probabilities are, in our view, overwhelming that the Applicants specifically targeted and killed Mr Makau in an attempt to hamper the police investigation against the 1st Applicant. This is particularly so when one takes into account that at that stage, June 1992, the ANC had terminated the armed struggle against the government and it was not the policy of the ANC to murder policemen and policewomen.
The evidence of the 1st Applicant, that he received orders from a high-ranking ANC official that he must kill members and not take their firearms is accordingly rejected.
We are also not satisfied that the Applicants have made a full disclosure of all the relevant facts. All of the Applicants were unsatisfactory witnesses. Serious contradictions existed between what they stated in their application forms and their testimony at the hearing. As stated above, they testified at the hearing that the killing of the deceased persons was done in the execution of an order received from Simon Mofokeng and that it was also ordered not to take firearms from their victims.
The 1st Applicant stated in his application form that the murders were "stimulated by political patriotism and nationalism within me". He made no mention therein of having received an order.
The 2nd Applicant also made no mention in his application form of acting upon orders. On the contrary he stated "I was not ordered and this was stimulated by political patriotism within myself".
The 3rd Applicant also made no mention of acting on orders in his application form and stated that he and his fellow Applicants acted on their own initiative.
The 4th Applicant stated in his application form that the deceased persons were murdered for the purpose of disarming them. he also specifically stated that "there was no direct order from any leader of the ANC".
In the circumstances the applications do not succeed and accordingly the amnesty applications of all the Applicants are REFUSED.
Dated at this day of 2000.
______________________JUDGE S MILLER
______________________MR J B SIBANYONI
______________________DR W TSOTSI
