decisions AMNESTY DECISIONS NZIMENI DANSTER, MONWABISI ERIC KHUNDULU AM 0040/96; AM 0050/96; AM 4296/96 GRANTED/REFUSED https://sabctrc.saha.org.za/hearing.php?id=59119&t=&tab=hearings https://sabctrc.saha.org.za/originals/decisions/2000/ac200137.htm DECISION The applicants applied for amnesty in respect of the following offences: 1. Housebreaking with the intent to rob and murder, with aggravating circumstances on 6 February 1987; 2. The murder of Matheus Gideon Palvie a 63 year old male on 6 February 1987 on the farm Leeukloof in the district of Cradock; 3. The murder of Jeanette Johanna Palvie, a 54 year old female who died on 15 March 1987 as a result of injuries sustained during an assault on her on 6 February 1987 on the foresaid farm; 4. The robbery of the following goods: One blessing wall clock; One antique "Wilson goggies tin containing 26 keys"; One black suit; One shirt; One seven star alarm clock; One 22 rifle serial no. 94980; One Polaroid camera; One box containing ten camera flashes; One key attached to a piece of wood; One brown belt; One screwdriver; One doorknob; Two bunches of keys; One blue shirt; One silver coloured cigarette lighter; One black case containing nine cassette tapes and eleven empty cassette tape containers; Eleven rounds of 6.35mm ammunition; One Parker pen engraved Rustenberg Bottle Store; A selection of tools; Four tool boxes; Two padlocks; One grey belt; One brown bag; One pair of grey underpants; One black ladies jersey; Two pairs of grey trousers; One grey jacket; One grey short sleeved shirt; One peach ladies jersey; One pink sheet; One striped tie; Two pink pillow slips; One beige suitcase; One pair of brown trousers; One pair of white underpants; One pair of blue underpants; One blue notebook; Three pairs of pyjamas; One washcloth; One khaki shirt; Four ritmeester senior cigars; One Volkswagen Golf motor vehicle registration no. CAT12884. 5. The illegal possession of a firearm in contravention of Section 2 of Act 75 of 1969 on 6 and 7 February 1987 to wit a 6.35mm Pistol serial no. 192710; 6. The illegal possession of .22 rifle serial no. 94980 on the aforementioned dates; 7. The illegal possession of ammunition on the aforesaid dates; 8. The malicious damage of the property of MG Palvie namely a VW Golf motor vehicle registration no. CAT12884 on 6 February 1987 at Cradock. At the start of the hearing the third applicant informed the Committee that he is withdrawing his application. The Committee fully explained the consequences of such a withdrawal to him, but he persisted in his request. His application was then ruled to be withdrawn and removed from the role. It should be mentioned that at the time of the hearing he had already received parole. He originally was sentenced to 10 years imprisonment, his youth being considered as a mitigating factor. The two other applicants were serving life imprisonment sentences after the death penalties imposed were altered to life imprisonment. Their sentences on the other charges were to run concurrently with the sentence of 20 years imprisonment imposed on the first charge. "The motivation is that he responded to a call by the then banned ANC (African National Congress) that the Youth should make our Townships a no go area for Police and informers. Although they exceeded the bound of the call we strongly feel it was because of their political immaturity that they adopted extreme measures. Further the militant mood of the times, added to their actions but it does not detract from the fact that their actions were politically motivated." The letters written were identical and dated 20 February 1996 and signed by Messrs. Ntombela and Ngale who indicated that they were respectively the chairperson and treasurer of Cradoya who was then affiliated to the UDF. Danster stated in his application that he acted with political motivation because of the oppression by the apartheid regime resulting in the killing of some of their leaders. The youth in Cradock then decided to organise themselves and to attack farmers in order to get firearms and ammunition. He further stated on a request to state whether he acted under orders or on behalf of or with the approval of an organisation: "We committed the offences voluntarily through the decisions of the youth which was decided at the absence of our leaders who were killed and some were detained." He further stated that no order or approval was applicable and a similar answer given to the question whether he benefited financially or otherwise. The applicants at the hearing filed exhibits "A" and "B" the contents of which is for the greater part verbatim the same. "A decision to disarm the said farmer had been taken at a youth meeting (Cradoya) and a SDU meeting." This was not confirmed in exhibits "A" and "B". If any instructions were issued by the said organisation it is clear that they exceeded the bounds of the call made by the ANC. The ANC on various occasions stated that criminal activities like fraud and robbery was never their policy. The Committee was not satisfied that they indeed acted under instructions of their organisation. No member of the organisation came forward to testify to that effect and the only "evidence" produced by the applicants in support of their contention, namely Exhibits "C" and "D", stated that they exceeded the bounds of the call made by the ANC. It is necessary to deal with the evidence of the applicants as to what exactly happened on 5 and 6 February 1987. In paragraph 3 of their affidavits, "A" and "B", they allege that Xolile Sithungu instructed them to go to the particular farmer who was a police reservist. It later became clear that the owner of the farm was Mr Boy Jordaan. He had moved to Cradock and the two deceased were allowed to live in the farm house who stood empty for a while. Mr Palvie was according to the evidence given at the trial a railway pensioner. This was confirmed by his daughter, Mrs vd Merwe, who also stated that he had a loss of hearing since childhood. As a result thereof he never served and could not serve as a member of the commando or police reservist. His hearing ability deteriorated as he grew older. This indeed happened the next day. Jordaan came and left. The Palvies later left for Cradock. While they were away Khundulu and Lollie Kwakwari gained entrance into the house by breaking a window whilst Danster kept guard. In a statement by Khundulu, received by the Amnesty Committee on 5 June 1997, Khundulu then stated:- "The farmers returned unexpectedly. They took everyone by surprise. Lollie and I had to use violence to get out of the situation, and also obtain the guns. We used a hammer and one of the big knives when hitting the farmer and his wife thus killing them." This is quite a different story from the one reflected in exhibit "B", and his evidence before the Committee. He told the Committee that after entering the house through the window which he broke they searched the house for weapons. They found a rifle in one bedroom but no bullets. They saw boxes and broke the padlocks with an axe. There were plates wrapped in newspapers in the boxes and in one of the boxes was a small safe and on opening it he found it contained buttons or police badges. He took this box with the badges to show it to Danster "because it was clear that the farmer was also a policeman because those badges were South African badges. We continued the search. We took two or three hours searching the house but we did not get any weapons or firearms." Lollie thereupon in the presence of Khundulu packed the goods referred to in the indictment in two suit cases. They then left the house and went back to the house where they have slept the previous night. They enquired from one Dumezweni (a brother of Lololo who directed them to the farm) who they took into their confidence, where they could find the weapons which were supposed to be on the farm. He informed them that the owner of the farm took the weapons with him when he left the farm to stay in town and that the only firearms left were the rifle and two small guns which were presumably taken by the deceased when they left for town. They then decided to wait for the deceased to return in order to get the weapons. His explanation for taking two suit cases of clothing, the selling of a suite and a clock and why he did not keep the police buttons to hand it over to his commander as he was obliged to do with everything they took, is to say the least, unconvincing. The Committee had to decide whether the murders and relevant other offences were associated with a political objective, or whether they were ordinary criminal offences like numerous other robberies which prevailed then and are still prevailing today. Not one of the applicants had a history associated with politics. Mr Khundulu had three previous convictions for theft, two previous convictions for housebreaking with intent to steal and theft and two previous convictions for assault with intent to commit grievous bodily harm. He was in fact released from prison only nine months before he committed the crimes relevant to this application. Danster was released approximately at the same time after serving a 12 year sentence for robbery with aggravating circumstances. It is also hard to believe that items such as one pair of grey underpants, one pink sheet, one blue notebook, one washcloth, four ritmeester cigars and the majority of items stolen, would have been taken to be sold to get money for the benefit of the political movement to which they belonged. The items robbed are rather indicative of the fact that the deceased people did not possess any valuable articles and were pensioners living by grace of the farm owner on his property. There is not a shred of evidence that they were political involved. Even if one would accept that the applicants mistakenly believed that Mr Palvie was involved as a police reservist and was targeted because of that, it still remains a mystery why Mrs Palvie was hammered to death, even after she was rendered harmless by Danster. Even if they decided at the scene to take some items for personal gain the fact remains that they went to the farm with the motive of getting weapons to be used against the police in the political struggle and not with the motive to kill people not resisting their attempt. The questions still to be answered are whether the other criteria mentioned in Section 20 (3) of Act 34 of 1995 have been met in the light of the fact that they are not only applying for amnesty in respect of the robbery of the weapons but also for two murders. The act of disarming farmers might have been approved of by the Cradock Advice Office but they clearly disapproved of the fact that the applicants exceeded the bounds of the call to make the township a no go area. In the result the Committee finds:- "but does not include any act, omission or offence committed by any person referred to in subsection (2) who acted:- (i) for personal gain-----------------". As stated applicant Kwakwari withdrew his application. As far as Danster and Khundulu are concerned: Amnesty is therefore REFUSED on counts 1 and 4. 2. That the applicants believed, albeit mistakenly, that Mr Palvie, was an opponent in the political struggle and he, in the process of obtaining weapons from him, was attacked, resisted their efforts and was killed. Amnesty is GRANTED to them in respect of the murder of Mr Palvie. 3. That the murder of Mrs Palvie was disproportionate to the objective of stealing the weapons. That no evidence exists that she was a political opponent in any way involved in the struggle, that she was already rendered harmless, when she was killed and that she was killed out of malice. Amnesty is REFUSED in respect of the murder of Mrs Palvie. Amnesty is GRANTED in respect of counts 5 to 8. It is recommended that the dependants of the deceased be declared as victims in terms of the Act. SIGNED AT CAPE TOWN ON THIS THE ________ DAY OF ___________ 2000. _______________________________ JUDGE A. WILSON _______________________________ ACTING JUDGE D. POTGIETER _______________________________ ACTING JUDGE C. DE JAGER