decisions AMNESTY DECISIONS 1998-10-30 JERRY CHIMANYANA MOTAUNG AC/98/0079 AM 5594/97 GRANTED https://sabctrc.saha.org.za/hearing.php?id=58637&t=&tab=hearings https://sabctrc.saha.org.za/originals/decisions/1998/981030_motaung.htm DECISION Applicant applies for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995, (the "Act"), as amended. Applicant was convicted of two counts of assault with intent to do grievous bodily harm; one count of murder; and one count of attempted murder in 1996. These convictions arose out of incidents relating to two victims, one Patricia Motshwene and one Gladness Mvelase. The former was killed. Applicant was further convicted of the unlawful possession of ammunition. He is serving an effective eighteen years of imprisonment. In his application for amnesty, Applicant inadvertently omitted to stipulate the counts of assault with intent to do grievous bodily harm as being included in his application for amnesty. Having presented a fully motivated argument as to why the application should be formally amended to reflect these offences, the application to amend was GRANTED . SUMMARY OF THE EVIDENCE Applicant was recruited in Standard Six to join the Congress of South African Students (COSAS). In 1989 he left the country to join the African National Congress (ANC) in exile, returning in December 1991 when the armed struggle had been suspended. On his return, he found that the situation in the country was very unstable and unsettling. The violence between members of the ANC and the Inkatha Freedom Party (IFP), particularly in the East Rand where he came from, was a focal issue. He was drawn into this conflict as a member of the Vosloorus community. He and some of his local comrades bought firearms with money that in part came from business people in the community. The purpose of purchasing these firearms was to protect the community against the attacks of the IFP members. Applicant believed that the IFP were successfully able to attack their township because of informers who resided in the township and who kept the enemy informed of all relevant developments in the township. Amongst these, Applicant and his comrades had identified the victims, Patricia Motshwene and Gladness Mvelase. Applicant further testified that even the brother to Patricia was known to be an IFP member as were other members of her family. The perception of the political leanings of the victims was further supported by the fact that they were seen at IFP funerals, and when they were killed, they were buried by the IFP. On the 16 April 1994, Applicant and his comrades came across the two victims as they were boarding a taxi. Applicant assaulted the victims and threw stones at them. He wanted to shoot, but was prevented from doing so by the number of people in the area. They were able to find the victims later that day. They shot the victims. Patricia was killed. Applicant testified that the situation improved after they had shot the victims. The ANC did not send him to kill the victims, he testified. He had used his own initiative based on the perception that the activities of the victims were aimed at frustrating the activities of the ANC in the township. ASSESSMENT OF THE EVIDENCE In legal argument presented to the Committee, Applicant submitted that the primary focus of the times was the violence that had engulfed the country, and the East Rand in particular. The period of the killing was the immediate pre-election period, when all parties were focused on winning the first all inclusive general election held in this country. Due to the acute tensions between the ANC and the IFP, anyone who appeared to be supporting the IFP was seen by the Applicant and his fellow comrades as frustrating the aims and objectives of the ANC. Applicant submitted that the test to be used should be a subjective one, grounded in what Applicant believed. He believed that these victims were enemies of his party and his community and acted within this context. Similarly on the question of proportionality, the context must be considered, he submitted. In those days, Applicant argued, the mere suspicion that one was an informer attracted the most dire consequences, because people's lives and livelihood were at stake. An informer could thus not be ignored. Applicant's own assessment was that due to their actions, fewer members of the community were killed as the attacks on the township abated soon after the victims were attacked. Gladness Mvelase could not be traced. The family of Patricia Motshwene attended the hearing. Their opposition, they argued, centred on the lack of political motivation and political objective. The victims family argued that there could not have been a political motive in these attacks. They argue that the victims were not members of the IFP, and that the killing and assaults were totally out of proportion with the information that might have been available to the Applicant. The Committee has considered these submissions. The context of the actions of the Applicant, his past experiences, both before he left for exile and during exile, as well as the conflict he found raging in the country on his return, are factors that the Committee has to take into consideration in assessing this application. The Committee accepts that the Applicant was a member of the ANC. Applicant was only nineteen years of age when this incident occurred. The incident occurred in the immediate pre-election period. In this period of our history, informers were indeed harshly dealt with, as submitted by the Applicant. It took very little for a perception to be created that a particular person, acting in a particular manner, was indeed an informer who should be eliminated. The Committee considers that the Applicant was bona fide in seeking to protect his political party and its members. The objective of his actions on that fateful day was politically motivated. Applicant has therefore complied with the requirements set out in Section 20 of the Act. In the premises, the Committee is satisfied that the Applicant has met the requirements of the Act. Amnesty is accordingly hereby granted to Applicant in respect of the following offences committed on the 16th April 1994 at or near Vosloorus: 1. the assault, with intent to do grievous bodily harm, of Patricia Motshwene; 2. the murder of Patricia Motshwene; 3. the assault, with intent to do grievous bodily harm, of Gladness Mvelase; 4. the attempted murder of Gladness Mvelase; 5. the unlawful possession of ammunition. The matter of the death of Patricia Motshwene and the attempted murder of Gladness Mvelase are referred to the Reparations and Rehabilitation Committee for its consideration in terms of Section 26 of Act 34 of 1995. DATED at CAPE TOWN THIS 30TH DAY OF OCTOBER 1998. DENZIL POTGIETER, A.J. ADV. L. GCABASHE MR J.B. SIBANYONI