DECISION
These are applications for amnesty in respect of the following offences:-
1. The Murder of John Jerling;
2. Malicious Damage to Property;
3. Unlawful Possession of the following Arms and Ammunition:
3.1 1 x R5 rifle with two (2) magazines;
3.2 1 x R4 rifle with two (2) magazines;
3.3 1 x Uzi SM 6 Pistol with magazines;
3.4 1 x F1 Handgrenade and
3.5 2 x .38 revolvers;
4. Robbery and Theft on the 12 March 1993 at Alice, of a Mazda Marathon motor vehicle registration number GCD 1616, belonging to Thandisile Vena;
5. Robbery and Theft during March 1993 at Mdantsane, of a Nissan Langley motor vehicle registration number CAU 3547 belonging to Albert Maboys Ndingane;
6. Robbery and Theft on the 20 March 1993 at Alice, of a Nissan Sentra motor vehicle belonging to Kenneth Mashalaba.
At the relevant time all the applicants were cadres of the Azanian People's Liberation Army ("APLA"), the military wing of the Pan Africanist Congress ("PAC") and claimed to be acting on its behalf.
At the hearing, and before the commencement of the proceedings, the Committee was advised by Mr Mbandazayo who appeared for the applicants, that Thembinkosi Diesel Siyoni was withdrawing his application. The matter was accordingly proceeded with on the basis that Diaho-Monaheng, Madasi and Ntintili were the only applicants.
The applications arise out of an incident which occurred at Yellowwoods Hotel, Fort Beaufort, on 20 March 1993. On that day armed gunmen stormed the place with firearms and a hand grenade was thrown at the patrons. One of the patrons John Jerling (the deceased) was shot. He died instantly. Madasi acted as the Commander of the attackers. No person was charged and/or convicted of the offences flowing from the attack.
The evidence is as follows: At the beginning of 1993 Madasi, who had hailed from Cape Town, came to the Eastern Cape where he carried out a number of operations for APLA. He had received instructions from the late Sichumiso who was a member of the APLA High Command. His orders were to go to Fort Beaufort to carry out an attack at the Yellowwoods Hotel which had been identified as a target. It was believed in APLA circles that the place was frequented by members of the South African Defence Force ("SADF"), more particularly on Friday and Saturday evenings. One "Sky" (alias) was going to meet him at King Williamstown and provide him with accommodation. It later transpired that this is Zuko Camagu whose application is being dealt with separately from these applicants. He did not eventually get involved in the present attack. He was involved in the earlier attempted attack which was aborted. That was the end of his involvement in the matter.
Siyoni, was going to give Madasi information about the target since he came from the area. Their instruction was further that the place would have to be stormed on a Friday or Saturday evening. Before executing the operation Madasi was harboured at Mxhelo Village, Alice, and later he was joined by "Nceba" (alias) and "Mlungisi" (Nkopane Diaho-Monaheng). Nceba was to be the driver to transport the operatives to the place of the attack. Diaho-Monaheng was to act as deputy to Madasi. Siyoni was going to act as a link between Sichumiso and the applicants' unit. He was also going to be the person responsible to secure the necessary logistics. At that time he did not know Siyoni by any other name except Diesel.
Before they launched the attack Madasi and Nceba went to reconnoitre the Yellowwoods Hotel. This was important because Madasi was not acquainted with the area and Nceba was going to be driving the getaway vehicle on the day of the attack, so they had to fully familiarise themselves with the place. After the reconnaissance he had been conducted Ntintili and Sky came with the arms referred to in 3 above. Ntintili testified and confirmed that on 16 March 1993 he supplied the applicants with these arms in terms of orders from APLA. High Command. At that stage he only knew Madasi as "Shooter". On the same day he was arrested on the way to Transkei by members of the South African Police ("SAP"). He claims he was so severely tortured that he filed a civil claim against the SAP but the matter could not go any further when he became aware that the police were plotting to re-arrest him. He then fled to the Transkei.
When Madasi was about to decide on the exact day of the attack, they became aware that Ntintili had been arrested. This necessitated that they relocate to Mdantsane where they were accommodated by a comrade "Law" (alias), a relative of Nceba. Law was a student at the University of Fort Hare where they subsequently met in his room on a Friday evening to discuss and prepare for the attack. It was Madasi, Diaho-Monaheng, Nceba, Diesel and Sky. That evening Diahamonaheng, Sky and Nceba went to steal a Mazda car at Alice. They returned to fetch Madasi and Diesel. They were observed and followed by the police. They abandoned the operation for that evening, and they went back to Fort Hare where they left the arms and ammunition with Law. They returned to Mdantsane where they had been hiding.
The following Friday Madasi, Nceba and Diaho-Monaheng hijacked and robbed a red Langley vehicle from an unknown driver in Mdantsane. They drove to Alice where they fetched the arms. They proceeded to Fort Beaufort, but when they came to Yellow Wood Hotel the place was closed. They then returned to Mxhelo Village where they left the arms. The Langley vehicle was abandoned near Alice.
On a subsequent Saturday evening they again went to Alice where they hijacked and robbed a Nissan Sentra vehicle belonging to Kenneth Mashalaba. Virginia Khatshwa was also present in the vehicle at the time and the applicants pointed a firearm at them to ensure their co-operation. The applicants promised not to damage the vehicle. Mashalaba and Khatshwa were dropped off between Alice and Fort Beaufort. This is the vehicle they used to fetch the arms from Mxhelo Village whereafter they proceeded to the Yellowwoods Hotel.
Madasi was armed with an R5 rifle; Diaho-Monaheng with an R4 rifle and Nceba with an Uzi pistol. On their arrival at the Hotel, Nceba parked the car and he and Madasi went to the front door. This was to prevent any person from escaping. Diaho-Monaheng proceeded towards the window. He stood there ready to fire. The applicants then opened fire on the patrons who were drinking and playing darts in the bar. The shooting lasted for about three (3) minutes whereafter they retreated. They left for Machuleni Village, Peddie, where they left the arms. The vehicle had a punctured tyre and was abandoned at King Williamstown. The following day they left for Transkei where Madasi gave a report to "Mandla Power" (alias) and Letlapa Mphahlele, members of the High Command of APLA.
Tragically, the place was not frequented by SADF members as the applicants had believed and worse of all the patrons were Jerling and some other youthful civilians who had nothing to do with the South African Security Forces. These were Abraham Johannes Wiese Herbst, Pieter Augustyn, Jan Johannes Nel, Henry Shaun Ferreira and Jonathan Spargs. Also present at the time were hotel staff: Collete Binala, Patricia Komani and Clyde Schwartz who was the assistant manager. All these persons were not injured and Jerling was the only fatal victim.
The applicants have testified that they had no intention of shooting the black staff. At the hearing the mother of the deceased, Anna Helena Jerling, testified that her son had no interest in politics and was still a student. He was 18 and had friends across the racial spectrum. When he was killed the family received condolences and messages of support from members of the ANC Youth League who even called off a protest demonstration that had been planned, in an expression of sympathy with the bereaved. She opposes the applications on the basis that no full disclosure has been made. Nel testified and said he was deeply traumatised by the incident and sometimes has difficulty sleeping. It also emerged from his evidence that there was a SADF Command Base about 15 to 20 kilometres away from the hotel. Although some of these soldiers occasionally visited the hotel to enjoy themselves, the place was not exclusively patronised by SADF members. All members of the public were welcome. He also said that Jerling was such an intimate friend of his that his death was a great emotional loss and suffering to him.
Subsequent to the incident Diaho-Monaheng was arrested in Lesotho. He made a confession and pointings-out pertaining to the attack. When the others were also arrested they co-operated with the police by admitting their involvement in the attack. They also made a number of pointings out.
Having considered the evidence as a whole, we are satisfied that the applicants were acting on instructions of the PAC and APLA. Their actions as aforesaid were in line with the policies and activities of the PAC and APLA and were aimed at making white people and the Government of the day aware of the urgent need for political change. We are further satisfied that the actions of the applicants occurred during the conflicts of the past as contemplated by the Act and that they have made full disclosure of all relevant facts. Accordingly they have complied with the requirements of the Act.
Amnesty is GRANTED to the applicants for the following offences:-
1. The murder of John Jerling;
2. The attempted murders of Abraham Johannes Wiese Herbst, Pieter Augustyn, Jan Johannes Nel, Henry Shaun Ferreira, Jonathan Spargs, Collete Binala, Patricia Komani and Clyde Schwartz;
3. Malicious damage to Property;
4. Unlawful Possession of the Arms and Ammunition referred to in paragraph 3. above;
5. The theft and robbery of the three (3) vehicles referred to in paragraph 4, 5 and 6 above.
The Committee is of the opinion that Anna Helen Jerling, Abraham Johannes Wiese Herbst, Pieter Augustyn, Jan Johannes Nel, Henry Shaun Ferreira, Jonathan Spargs, Collete Binala, Patricia Komani and Clyde Schwartz are victims and they are referred to the Reparations and Rehabilitation Committee for consideration as in terms of Section 22(1) of the Act.
SIGNED AT CAPE TOWN ON THIS
: DAY OF
: 2000.
JUDGE A WILSON
ADV L GCABASHE
ADV N SANDI
MR I LAX
