: DECISION
This is an application for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act, No.34 of 1995 ("the Act"). The matter relates to the following incidents:
1. The attempted murder of Leonard Nxumalo on or about 23 October 1982 at or near Zondo Street, eThandakukhanya in the district of Piet Retief;
2. The murder of Pat Mafuna at or near Baragwanath Hospital, Soweto during or about the period 1982 - 1986.
The Applicant was charged only in respect of the attempted murder. He appeared in the Piet Retief Magistrate's Court where the matter was referred for trial in the Regional Court on 9 January 1997. The matter has not yet been finalised.
We have been informed by the Leader of Evidence, Mr Mapoma, that despite various attempts to locate the whereabouts of the victim and the next-of-kin in respect of the two incidents, the Investigative Unit of the Amnesty Committee had been unable to trace any of these parties. Even a newspaper advertisement proved to be ineffectual in this regard. In the circumstances the hearing proceeded with only an implicated party, Mr Jimmy Mbane, in attendance. No other evidence save that of Applicant, was tendered at the hearing. Applicant's version in respect of the two incidents will be set out briefly.
ATTEMPTED MURDER OF MR NXUMALO
Applicant joined the African National Congress ("ANC") in exile during 1978. he received military training in Angola and the former German Democratic Republic. During 1981 he became disenchanted with the ANC and returned to South Africa where he joined the South African Police. He became what is generally referred to as an askari. These are former members of the liberation movements who had joined the South African Security Forces and were deployed, amongst others, in the tracing and identification of liberation force operatives. Applicant initially worked with the Newcastle Police and was transferred during 1982 to the Security Police unit stationed at Vlakplaas. Here hew as eventually appointed as a Constable in the South African Police.
At some stage during 1982 Applicant was deployed in Piet Retief where his orders were to search for members of the liberation forces as well as illegal weapons. He was deployed together with a member of the South African Police also stationed at Vlakplaas, one Mutwa. They were dropped off in eThandakukhanya township by the vehicle that was transporting the personnel from Vlakplaas and had to meet up with the vehicle at a pre-arranged point. They moved on foot through the township and at some stage Mutwa entered a house that was targeted for a raid by members of the Vlakplaas unit later that evening. Applicant waited outside. After a while Mutwa came running out of the house and the two of them started running out of the township. They were confronted by a group of people who attacked them with stones. Applicant was in possession of the firearm of Mutwa who had been drinking and had handed over the firearm to Applicant. Applicant fired two warning shots into the air and another shot into the ground in an attempt to ward off the attack. This did not have the desired effect since the crowd grew in numbers and continued stoning them. At some stage Applicant fell to the ground whereafter he heard Mutwa firing shots. Applicant lost consciousness and eventually found himself in hospital.
Applicant did not know any of the attackers but was informed by Mutwa that they were people opposed to the police. After his discharge from hospital Applicant and Mutwa were reprimanded and assaulted by their Commander Captain Vermeulen who was upset by the incident.
In evaluating Applicant's version, we merely wish to point out that Applicant has failed to make a favourable impression upon us and that we find his version unsatisfactory. We do not regard it necessary to deal with the matter in any greater detail. In our view, the application can be decided on the material aspects of Applicant's own version. It is clear from his testimony that Applicant is unable to identify either the complainant or any of their attackers.
Furthermore, there is absolutely no indication that the complainant was indeed one of the attackers. There is, moreover, no persuasive evidence indicating that the complainant or any of the attackers could be regarded as political enemies of the Applicant at the time. There is no indication why Applicant and Mutwa were attacked and there is no credible or persuasive evidence linking the incident to politics. Applicant never indicated that he at any stage intended to attack or act against a political enemy. On his version, he simply fired warning shots in an attempt to ward off the attack upon himself and Mutwa. There is no indication that he fired any shots at the crowd or any individual.
Having carefully considered the matter, we are not satisfied that the incident constitutes an act associated with a political objective as envisaged in Section 20 of the Act. In the circumstances the application is REFUSED.
MURDER OF PAT MAFUNA
Applicant is unable to place a more specific date on this incident save to indicate that it occurred during the period 1982 until 1986. On the day in question, he and Jimmy Mbane were deployed at the taxi rank at the Baragwanath Hospital in Soweto. They were both former askaris who had been appointed as members of the South African Police. They were in search of liberation force operatives or illegal arms. At some stage prior to his joining Vlakplaas, Applicant noticed a former fellow ANC member, who had received military training together with him, in the company of the members of Vlakplaas. He had recognised he person as one, Pat Mafuna. At a later stage after having joined Vlakplaas, the superiors at Vlakplaas indicated that Mafuna had defected from Vlakplaas and was no longer an askari attached to the South African Security Police. The Vlakplaas superiors indicated that Mafuna had to be apprehended and if it was impossible to do so, he should even be killed.
At some stage, Applicant noticed Mafuna at the taxi rank and conveyed this information to his companion, Jimmy Mbane. Applicant thereafter called Mafuna who caught a fright and started running away. Applicant and Mbane followed Mafuna who was running towards a nearby shopping centre. Mbane managed to catch up with Mafuna and when Applicant joined up with them he found them wrestling on the ground. Applicant noticed that Mafuna was overpowering Mbane and was in fact in possession of Mbane's firearm. At some stage during the chase, Mafuna was in possession of a suspicious looking paper bag. Mafuna dropped the paper bag while he was running away. Upon reaching the point where Mafuna and Mbane were wrestling on the ground, Applicant immediately removed the firearm from Mafuna's hand and ordered Mbane to move away from Mafuna. Mafuna then started moving towards the paper bag whereupon Applicant shot him once in the shoulder and twice in the chest to stop him reaching the paper bag. After the security guards at the shopping centre started firing at them, Applicant and Mbane ran to a nearby filling station where they arranged for the police to be summoned from Protea Police Station. They were later removed from the scene by the police and subsequently learnt that Mafuna had died as a result of his injuries.
In assessing the application, we point out that the version of the Applicant concerning the shooting incident is peppered with contradictions, improbabilities and numerous unsatisfactory aspects. His attempts to link the shooting of Mafuna to the latter's alleged attempts to reach the suspicious looking paper bag are wholly unconvincing. We are indeed, satisfied that this is a story concocted by the Applicant to create some reason for having shot and killed Mafuna. His evidence in this regard is patently untruthful. We are satisfied that the Applicant simply executed Mafuna after the latter was apprehended. However, we bear in mind that the orders were given by Applicant's superiors at Vlakplaas encompassed the killing of Mafuna who clearly posed a considerable threat to the Security Police and could be regarded as their political enemy at the relevant time. The summary execution of Mafuna consequently fell within the ambit of the orders that were given by Applicant's superiors. Applicant would accordingly have been acting within the course and scope of his duties in attacking and killing Mafuna. Although Applicant added the fabricated version concerning Mafuna's alleged attempts to get to the suspicious looking paper bag, he did indicate in his testimony that their orders were, amongst others, to kill Mafuna and that this motivated his actions. In spite of the untruthful aspect in his testimony, we are prepared to hold that Applicant has indeed made a full disclosure of the relevant facts. Accordingly amnesty is hereby GRANTED to the Applicant in respect of the murder of Pat Mafuna during or about the period 1982 - 1986 at or near Baragwanath Hospital, Soweto.
DATED AT CAPE TOWN THIS 11TH DAY OF DECEMBER 2000
JUDGE D POTGIETER
ADV F BOSMAN
ADV N SANDI
