Harrington, Erasmus and Madlala were charged with and convicted of the crime of the murder of Mbongeni Jama. The offence was committed on the 24th of February 1991 at or near Elandskop. They were sentenced by the Trial Court to imprisonment for eight (8) years, six (6) years and eight (8) years respectively. On appeal at the instance of the Attorney General of Natal, the Appellate division increased their sentences. Harrington was sentenced to eighteen (18) years, Erasmus to twelve (12) years and Madlala to fifteen (15) years' imprisonment.
They now apply for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act, 34 of 1995.
Harrington and Erasmus were Constables in the South African Police. Madlala was recruited from the ranks of the Inkatha Freedom Party (IFP) and after training which lasted only six weeks, he was employed as a Special Constable. The three of them were deployed to the Riot Squad in Pietermaritzburg which was then under the command of Major Deon Terblanche. On the 24th of February 1991 a meeting of the African National Congress (ANC) attended by about two thousand members, was held in the Noshesi area. This meeting was monitored by a unit of the Riot Squad which comprised the three applicants, Constable Van der Hoogen and four other Special Constables. The leader of this squad was Harrington and the police van in which they travelled was driven by Erasmus. They stayed at the meeting until it ended at about 4pm when they left to return to their base. After they had travelled some distance, they came across a group of about ten young people, some of whom were wearing ANC T-shirts. Erasmus stopped the van because either he or Harrington decided to search this group for weapons or drugs. When the search commenced, Mbongeni Jama, who was one of this group, did not submit to the search. Erasmus slapped him and he had to be held by some of the Special Constables and searched. Nothing was found on these people. However, Madlala says that during the search he heard Jama saying to his companions: "These policemen, we must shoot them and we must kill them like we killed the IFP people at Shanga." This angered Madlala who immediately reported it to Harrington whereupon Erasmus and Harrington got hold of Jama and bundled him into the back of the van. Jama's companions were left behind as the van drove off. Inside the van Harrington started to assault Jama and to question him about his activities. At some stage while Jama was being roughed up, a pocket book was found on him. It seems that Special Constable Dlamini read and translated its contents from Zulu into English. It is not at all clear what its precise contents were. Harrington says that the entry in the pocket book recorded Jama's involvement in some acts of terror in the Richmond area. Madlala did not read the pocket book, but according to his evidence he heard Dlamini say that it contained the names of prominent IFP members and identified IFP houses to be burnt down. We will never know what was actually recorded in the pocket book, because Harrington threw it out of the window of the van. Why he did this is a matter to which we will come back later.
Whatever the contents of the diary were, it is clear that it led to further interrogation and an intensification of the assault on Jama. This consisted of Harrington tying Jama's belt around his neck and throttling him. This continued until the van reached a bottle store where it stopped to enable some of the Special Constables who were going off duty, to get out of the van. All the policemen alighted from the van and according to the evidence of Harrington, Jama jumped out of the van and attempted to run away. It was a vain effort for he was immediately apprehended and put back into the van. It seems that it was while the vehicle was still stationery that Erasmus was told by Harrington about what was contained in Jama's pocket book. They talked about it and Erasmus then suggested that Jama should be killed. According to the evidence of madlala he and Harrington and all the others had no hesitation in agreeing with Erasmus' suggestion. It seems that at that moment, they had passed a sentence of death of Jama and all that was left was to execute it.
The vehicle was then driven to a secluded spot where it stopped. Jama was dragged out with the belt around his neck. He fell to the ground. Harrington and Madlala say that Jama got up and tried to run away. At that stage, Erasmus drew his pistol and aimed at Jama, but Harrington stopped him from doing so. Harrington ran after Jama, got hold of him and pulled him to the ground. The others gathered around and Madlala says that Harrington then banged Jama's head against some rocks. In his evidence Harrington said that he had no recollection of banging Jama's head against the rocks and Erasmus said that he did not see this. Harrington says that he then told Madlala to shoot Jama. Although Madlala thought that Jama might already be dead, he took Dlamini's shotgun and shot Jama on his forehead. They left Jama's body lying there, got into their van and drove off. Before doing so, Harrington took some loose branches and swept the ground in order to erase the track marks made by the wheels of the van. They decided among themselves that the shooting of Jama was to remain a secret. This is a brief account of the relevant facts which provide the context in which the offence was committed.
Counsel for the applicants submitted that the killing of Jama was an act associated with a political objective as required by Section 20(1)(b) of the Act. We proceed to examine this submission. It was urged on their behalf that they had been indoctrinated to treat the ANC as the enemy. Jama was a member of the ANC. He was therefore perceived to be an enemy. That may well be so, but they had on the day monitored an ANC mass meeting which had lasted for nearly two hours. During that meeting there was the usual toy-toying, shouting of ANC slogans and the making of anti-government speeches. Yet applicants took no action against the organisers or speakers at the meeting. This must have been because they knew that the ANC was no longer a banned organisation and it was no longer a criminal offence to be a member of that organisation.
According to Harrington and Madlala Jama was killed because his pocket book revealed that he had been involved in an attack on Inkatha members. There was no evidence that it was in Jama's handwriting and despite the torture and assault to which Jama had been subjected, no confession or admission was extracted from him by Harrington. If the pocket book did in fact contain incriminating evidence against Jama, Harrington would most certainly have retained it. It is inconceivable that he would have thrown away vital evidence of a serious crime against Inkatha by a member of the ANC. The fact that Harrington did not even bother to show it to Erasmus or Van der Hoogen lends probability to the view that the contents of the pocket book were totally innocuous and that is why it was thrown out of the window.
So why was Jama killed? The evidence leads us to the conclusion that Jama had been beaten up so badly that the applicants would never have been able to justify it to their superior. And this was the reason for subsequently killing him. After killing him, they set about destroying any evidence of their illegal conduct and agreed among themselves that the killing of Jama was to remain their secret. It was his misfortune that he fell in the clutches of the applicants who, according to the evidence of Harrington and Erasmus, regarded it as justifiable procedure to search, detain, interrogate and perhaps assault ANC people. If satisfactory answers were obtained from t heir victims then he would be brought before a Court in the ordinary course. When satisfactory answers were not obtained, the victims were beaten up and sometimes dropped off in an Inkatha area and left to the mercy of Inkatha supporters. Harrington even admitted that on various occasions after assaulting ANC members, he had thrown them into a river without bothering to look back to see if they could get out of the water. If firearms were found on ANC members or in their homes, they were taken away from them and sold to Inkatha supporters. In this way he had sold between one hundred and one hundred and fifty firearms to Inkatha and used the money to buy alcohol and meat for braai's. This was never reported to this superiors because he believed that in selling these firearms to Inkatha, he was rendering a service to them. He said that this was common practice among members of the Riot Squad.
Applicants were quite clearly a law unto themselves as appears from the following questions and answers:
"Question: Is the position that because a man is a member of a political organisation such as the ANC and if you come to hear about him being a member of the ANC, then you would be entitled to do anything you like with him, torture him, assault him, let him go and if need be, kill him?
Question: Is that all part of the training:
Answer: Well, that was the impression which I got.
Question: Could you please repeat your answer?
Answer: That was the impression which was conveyed to me and that is the way I accepted it."
Further on the evidence appear the following questions and answers:
"Question: Can you explain why you would not have arrested or have prosecuted one if you came across him?
Answer: It would have taken up too much time and that was, it was not sufficient to do that, it was a waste of time to do that."
We have no hesitation in coming to the conclusion that the murder of Jama cannot be said to be an act associated with a political objective and they do not fall within the ambit of the provisions of Section 20(1)(b) of the Act. They were clearly not acting under the instructions of their superiors. On being questioned in this regard, Harrington replied:
"Question: Are you saying that you got instructions from somebody or are you saying that you just decided so yourself?
"Question: (The decision) to kill the deceased was taken amongst yourselves there at the scene, am I right?
Question: You never received any instructions from anybody, any of your superiors at all?
Answer: That is correct, I was not instructed."
Therefore it is quite clear that they do not fall under Section 29(2)(b) of the Act. They are accordingly