The applicant applies for amnesty in terms of Section 18 of Act 34 of 1995 in respect of two counts of attempted murder and of being in possession of an unlicensed firearm and ammunition on the 25th of May 1991 in Johannesburg. In respect of these offences, the applicant was convicted and sentenced to thirteen (13) years' imprisonment.

The applicant was a member of Special Operations of Umkhonto weSizwe, the Military wing of the African National Congress (the ANC). He received extensive military training abroad. In 1991 he was instructed by the army commander, Mr Joe Modise to establish Self Defence Units in order to protect the people in the township from the violence which had engulfed many townships after the ANC had suspended its armed struggle. He established such a unit in Orlando West and was a Commander thereof, responsible for recruiting and general training of the members of such units in Orlando West.

On or about the 25th of May 1991, the applicant was a passenger in a Kadet motor vehicle and was proceeding from Soweto to town in order to have a meeting with an agent who was going to facilitate the deployment of arms to his unit. When the car was next to Booysens, the driver began to swerve the car from one end of the road to the other. The applicant pleaded with the driver to stop driving recklessly or else stop the car and allow the applicant to alight therefrom. Whilst this altercation was going on, the car came to an abrupt stop and the applicant noticed a Citi Golf with two persons therein, had stopped next to them. One person came out of the car and approached the car in which the applicant was the passenger, and ordered the occupants in the Kadet to come out. It was about this time that the applicant suddenly realised that the persons were members of the Police. He became horrified of being arrested and of what stood to be unravelled by the Police if he were arrested, as he had at that time an unlicensed firearm. In his panic, he decided to shoot his way out to avoid being arrested for possessing a firearm.

Mr Van Heerden deposed to an affidavit which was tendered in an evidence. He explained the circumstances under which he was shot, and in particular what happened when the Police stopped the car. Whilst his evidence is different to that given by the applicant in this regard, we do not regard such differences as being material. It is common cause that the applicant fired several shots at Mr Van Heerden and his companion, thereby injuring them and that they in return fired and also injured the applicant. The applicant attempted to run away from the scene but was later arrested by the Police who were called in to reinforce Mr Van Heerden and his companion.

The pertinent question to consider is why the applicant shot at the Police on the day in question. It was contended by the applicant that the reason why he shot at the police, was to avoid being arrested, because if he were arrested he feared that a lot of the SDU activities (which at the time had been undertaken sub rosa) would be revealed and that his important duties which he had been instructed to carry out by his Commander, namely to create SDU and train new recruits in the use of weaponry in order to protect the community, would not be capable of being achieved.

The applicant testified that when the Police approached his car, he believed at the time that he would be arrested because he was in possession of an unlicensed firearm, which had been given to him by the ANC for SDU activities, and "upon my arrest, I would be identified as was the case with the Special Branch ... and would be killed." He averred that his greatest fear was that once he was arrested for possession of an unlicensed firearm, his arrest would easily reach the Security Police since the uniformed police worked hand in glove with the Security Police. He also feared that sensitive information would be extracted through torture concerning the operations of the SDU's, which were at that stage unknown to the Police. Moreover many of his compatriots who were involved in the armed struggle, had been killed by the Police.

He stated that he was well known by the Security Police as a high profile activist as he had previously been detained and that during his detention, he had been tortured.

This Committee has already heard significant evidence from the Security Police in their amnesty applications on who qualified as a high profile activist and how such activists were tortured to extract information of their activities and how they were eliminated because such an elimination was considered cost and time effective instead of a criminal trial.

It is common cause that the military wing of the ANC waged a fierce struggle against the State using firearms which were not licensed. The applicant stated that the SDU's objective was to protect the Black Community from the violence which the ANC believed was perpetrated by the Government, and for this purpose he was issued with a firearm. We therefore accept that the firearm and ammunition which was given to the applicant by MK, was given to him in the context of his activities with the SDU's since he was a Commander of that Unit.

The applicant has contended that the objective which he sought to achieve in shooting the Police, was to avoid arrest in order to continue with the critical task of creating the SDU since the objective attendant to its creations, was at the time profoundly important to the ANC in the maintenance of the balance of power outside the negotiations which were taking place between the State and the ANC. We therefore find that it was not unreasonable for the applicant to have feared that his arrest for possessing an unlicensed firearm would lead to his identity as an MK soldier and ultimately to his SDU activities.

This Committee has already heard direct evidence from the Security Police of how they set up a fine web of network for collecting information about political activists. The evidence led by them clearly shows that an activist such as the applicant, involved in training others in the use of arms against the State, was considered as a high profile activist and could be eligible for elimination by the Security Police. It was therefore not unreasonable for the applicant to have believed that once arrested, it would be almost impossible for him to carry out his duties in the SDU, which he considered critical in the protection of the community which had been engulfed by violence which the ANC believed that the Government and its structures had a hand in, in order to destabilise the Black Community.

This application is clearly distinguishable from the case of a person who possessed a firearm for personal use and shot at the Police in order to avoid being arrested for possessing such a firearm without a license. In this instance the motive for avoiding an arrest is purely personal whilst in the case of the applicant, he has shown that his motive was political.

Having considered all the material evidence herein, we are therefore satisfied that the offences committed were acts associated with a political objective, committed in the course of the conflict of the past. The applicant has accordingly met the requirements of Section 20 of the Act and his application for AMNESTY IS GRANTED.

B. NGOEPE, J:

MS S. KHAMPEPE:

ADV C. DE JAGER (SC):

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