DECISION
The applicant was a Lieutenant-General in the Ciskeian Police and was the Commander of its Elite Unit, which was basically an Intelligence Unit. As such he was directly accountable to his father, who was the President of Ciskei. On 14 September 1990 he was sentenced to imprisonment for nine years on a charge of malicious injury to property, namely the Nomendy Bottle Store at Keiskammahoek. It belonged to Mr Fikile Gatya and Mr Zandisile Nygwanya. Thereafter, on 11th December 1990, he was convicted of malicious injury to property and sentenced to twelve years' imprisonment. The property in question was a residential building in Peddie and belonging to Mr Nygwanya. The two offences were committed on 11th May 1989 and 11 December 1989. He now applies for amnesty in respect of his conviction for both offences.
In his evidence had admitted that he had given the instructions for the destruction of the bottle store and the house in Peddie. The actual destruction of the bottle store and the house was done by the army with explosives which the army obtained from its stores. For this purpose, applicant provided the transport to those who carried out the operations.
Applicant himself did not participate in the explosions, but he was the ultimate person to whom everybody in the end had to report.
In his evidence the applicant said that the house in Peddie and the bottle store were bombed as part of intelligence operations initiated by him. He believed that an organisation known as Iliso-Lomzwi was engaged in activities directed at destabilising the Ciskei.
According to the reports he received, the bottle store was used to channel funds to be used by that organisation and the house which was being constructed in Peddie, was intended to be used as a safe house by the organisation. The purpose of bombing these buildings was to send out a signal to members of Iliso-Lomzwi that their plans were known to the Elite Unit and to discourage them from persisting in their activities. He believed that Iliso-Lomzwi was composed of certain misguided individuals and dissidents who were based in the Transkei. The organisation was used as a front by the South African Defence Force Military Intelligence. He claimed that the offences he committed were associated with a political objective.
Mr Nygwanya and Mr Gatya were at the time, two highly placed officials of the Ciskei Government. The former was a Major-General in the Ciskeian Police Force and was second in command in the Elite Unit. The latter was a Secretary-General in the office of the former President of Ciskei. They jointly owned the Nomendy Bottle Store which business they had started in November 1987.
Applicant said that during February or March 1988 he received a report that Mr Nygwanya was involved with the Iliso-Lomzwi. He did not question Nygwanya, but decided to keep him under observation. Applicant said that at first the working relationship between himself and Nygwanya was quite good, until some differences arose which were purely work related.
According to the evidence of Nygwanya, what had started off as a good relationship between himself and the applicant later changed because the applicant had a tendency to detain people without evidence and he also tended to misuse government moneys.
Nygwanya says that he spoke to the applicant about these matters, but the latter reacted negatively to these complaints. Nygwanya says he reported the matter to the former President, but nothing happened. He says that the relationship between himself and the applicant deteriorated to such an extent that he made an application to be transferred from the Elite Unit to the Police Force, but the applicant refused to accept his application.
During 1988 Nygwanya was arrested on a charge of defeating the ends of justice. Shortly after his arrest Nygwanya made an application for bail and in those proceedings, he asked the Court why he alone was charged when General Sebe, the applicant, was also involved.
Nygwanya's application for bail was refused. While he was in jail waiting for his trail to commence, he was visited by one of applicant's juniors who warned him not to mention applicant's name in the trial and if he did so, the applicant would take the matter further. Nygwanya's trial commenced in December 1988 and after the State's case was closed, he was released on bail.
On that very day, he was detained by the Security Police, released a few days later only to be detained once again on the instructions of the applicant. Applicant said that he had ordered the detention because he wanted Nygwanya to be questioned about his activities at the bottle store. He was detained for 51 days during the court vacation. The day after his trial recommenced, he was released on bail once again, but at the conclusion of the trial, he was found guilty and sentenced to a term of imprisonment. It was while he was in prison that the applicant came to see him. His evidence about the purpose of that visit is as follows:
"Mr Brink: While you were in prison, did you come across the applicant?
Mr Nygwanya: Yes. The applicant went to the prison and I was called. He was there with some of his members. What he wanted from me, he had the extras of the paper - the Daily Despatch and other newspapers, of the case, the evidence that I gave in court. Now what he said to me, he wanted me to clear his name on what I have said - I have said in court, which I refused to do. After that, we had a quarrel with him. We had a quarrel to an extent that the prison warder had to intervene. But he made mention of this on that day, that he will destroy my property and he will wait for me until I'm released from prison. As a result of that, on the same day I made an oath about what he said to me and handed it over to the prison authorities, requesting them anyway to send a copy of the letter to the Attorney General's office, because I'm being harassed in prison while I'm sentenced for the case which was apparently over."
The applicant carried out that threat, because while Nygwanya was in prison, his bottle store was bombed and some months later, his house in Peddie was bombed.
We proceed now with the circumstances concerning Mr Gatya. Applicant wanted Mr Gatya to buy out Mr Nygwanya's share in the bottle store. Despite considerable pressure exerted by him, Mr Gatya declined to do so. Shortly thereafter, on the 30th of September 1988, Mr Gatya was demoted from his position as the Secretary-General in the office of the President, to the rank of Principal/Clerk. This was a demotion of seven ranks. Mr Gatya's problems did not end there, because on the 12th of December 1988, applicant ordered his arrest and detention in terms of the Security Legislation.
Applicant said that this had become necessary in order to have Mr Gatya interrogated as he was suspected of engaging in illegal political activities. Mr Gatya was held in detention for 108 days without being interrogated once. Applicant's explanation for the fact that no interrogation took place over this long period, was that the Security Police who were assigned to question Mr Gatya could not do so, because they were short of manpower. At no stage was Mr Gatya told why he was being detained.
Both Nygwanya and Gatya denied that they were members of Iliso-Lomzwi or had anything to do with its activities.
The applicant claims to have acted within the course and scope of his duties as a member of the Security Forces of a former State. Even if we assume for the purpose of this case that Iliso-Lomzwi was a publicly known liberation movement engaged in a political struggle against that State, there has to be proof that Mr Gatya and Mr Nygwanya were members or supporters of that organisation, as required by Sec 20(2)(b) of Act 34 of 1995.
The applicant's case goes no further than saying that he received a report that they were involved in some way with Iliso-Lomzwi. The nature of that report and the source of the applicant's information are matters on which there was no evidence. In the absence of clear evidence that Mr Gatya and Mr Nygwanya were members or supporters of Iliso-Lomzwi, the applicant's offences cannot be said to be associated with a political objective.
The extraordinary lengths to which he went to ensure that Mr Nygwanya remained in custody despite the fact that he had been released on bail, coupled with the fact that he threatened to destroy Mr Nygwanya's property because of the latter's refusal to "clear his name", indicated that his motive for committing the offence was anything but political.
Mr Gatya's humiliating demotion and his subsequent detention on the orders of the applicant reinforces the belief that applicant was determined to hurt those who did not comply with his wishes. We are driven to the conclusion that applicant acted against both of them out of malice, ill-will or spite.
His application for
AMNESTY IS THEREFORE REFUSED: .
(Signed)
MALL, J
WILSON, J
NGOEPE, J
ADV C. DE JAGER
MS S. KHAMPEPE
