DECISION
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The applicant applies for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act, No 34 of 1995 (The Act), in respect of a number of offences committed during the period June to November 1991. These offences are set out in the body of this judgment. The applicant stood trial in the Supreme Court, Transvaal Provincial Division, and was convicted and duly sentenced. The applicant's application, together with that of his erstwhile co-accused, were heard by the Amnesty Committee during the week of 15 - 19 July 1996 in Pretoria. Evidence was led both in support of and in opposition to the applications.
At the commencement of the hearing, Advocate De Jager SC, a member of the Amnesty Committee, recused himself as he had previously rendered legal assistance to Jean Prieur Du Plessis, whose application for amnesty was being heard jointly by us with that of the applicant.
1. The applicant belonged to an organisation or movement which he said was known as the Nasionale Sosialistiese Partisane (NSP). The organisation consisted of only four people. A question which immediately arises is whether NSP is or was a "publicly known political organisation or liberation movement", as required by Section 20(2) (a) and (d) of the Act; (see also (b) which of course, does not apply to the applicant). The NSP was a group of only four people and, on the evidence before us was neither a publicly known political organisation or liberation movement. Newspaper cuttings were handed in as exhibits, in an attempt to show that this group was a publicly known political organisation or liberation movement. Far from showing this, the newspapers paint a picture of religious fanatics under the influence of the Church of the Creator apparently bent on purging the country of "inferior" races.
It was submitted on behalf of the applicant that the
words "publicly known" are descriptive of "political organisation" only and that they had no application to "liberation movement". The argument was of course meant to overcome the difficulty raised above. Such a construction would constitute a gross and unnecessary grammatical distortion of the section: the descriptive clause "publicly known" precedes both "political organisation" and "liberation movement"; had the legislature's intention been that the descriptive clause should not apply to "liberation movement" as well, the legislature would have introduced some kind of words or wording to deflect the force of this descriptive clause away from "liberation movement"; in particular in article "a" which comes immediately before "publicly known" would have again been inserted immediately before the words "liberation movement"; that is, immediately after the conjunction "or". In our view therefore, the contention that a liberation movement need not, as opposed to a political organisation, be publicly known, cannot stand.
In the light of the aforegoing, the applicant has not been able to show that when he committed the offences in question, he did so as one of the people described in Section 20(2) of the Act. For this reason alone, his application fails in respect of all the offences.
2. With regard to some of the offences, there are additional reasons why the application should fail. It is therefore necessary to deal with these offences individually.
3. Regarding the killing, on or about 14 October 1991 in the district of Louis Trichardt, of the following people (counts 2, 3 and 4 of the indictment).
Makwarela Dobani;
Wilson Dobani;
Maria Claudine Roux.
Summary of facts: The applicant and one White went to the house of the third victim for purposes of stealing firearms and ammunition. They expected to find the first victim, who was the domestic worker. The plan was to tie her up. Instead, they shot her and then cut her throat. The second victim, her husband, unexpectedly arrived at the house; he tried to run away when he saw his wife's corpse. He was also shot and again, his throat cut. After entering the house, the applicant and White noticed that there was somebody inside a cupboard or wardrobe. Without examining closely, they opened fire. It turned out to be the third victim. Again, White cut her throat. The applicant says he became unhappy when he noticed that they had killed a white person, whom he regarded as one of their own. He was not worried about the other two black victims, as he did not value the life of a black person then. The applicant and White wanted firearms in order to enable themselves to raid other places for more arms and eventually recruit and arm enough people to overthrow the government.
3.1 These offences cannot, in our view, be described as acts committed for a purpose associated with a political objective
3.1.1 The applicant and his colleague could have avoided killing the deceased. Had they tied up the first victim as initially planned by them, instead of killing her, the murder of the second victim could most probably have been avoided. The random shooting in the wardrobe was also not necessary as the victim was hiding. Furthermore the fact that the victims' throats were cut (an act from which the applicant cannot dissociate himself), is indicative of the fact that the applicant and his colleagues were not interested in merely incapacitating the victims for the purpose of removing the weapons, rather, it shows that they were out to kill. Considering that their objective was to steal firearms, the three acts of murder ware grossly out of proportion with that objective. The relationship between the three murders (all civilians in a private house) is likewise far from being either direct or proximate to the applicant's stated political objective, vide Section 20(3)(f) of the Act.
3.1.2 The evidence given by the applicant regarding his racial views, indicates that he was driven to a large extent by his lack of respect for the life of a black person; vide Section 20(3)(ii) of the Act.
3.2 For the reasons set out in paragraphs 1 and 3.1, above, the applicant's application for amnesty in respect of the murder of Makwarela Dobani, Wilson Dobani and Maria Claudine Roux on or about 14 October 1991, district Louis Trichardt, is
REFUSED: .
4. Regarding the theft of motor vehicle Volkswagen Golf GTS, registration BGV275T (owner Michael van Leeuwen) in September 1991, Pretoria (count 1 of the indictment).
4.1 They stole the vehicle (i) so as to be able to move around, (ii) to steal or rob people or institutions of weapons on a small scale and later, using these ill-gotten weapons (iii) attack bigger depots for more weapons and then (iv) arm as many people as they would have in the meantime recruited and (v) eventually overthrow the government by force.
It is clear from the above possible chain of events, as envisaged and planned by the applicant and his colleagues, that the relationship between the act in question (theft of a motor car) is too remote from the ultimate political objective; see Section 20(3)(f) of the Act. The act in respect of which the amnesty is sought, cannot therefore be described as an "act associated with a political objective", as defined in the Act.
4.2 For the reasons set out in paragraphs 1 and 4.1 above, the applicant's application for amnesty in respect of the theft of motor vehicle Volkswagen Golf GTS, registration BGV275T (owner Michael van Leeuwen) in September 1991, Pretoria is
REFUSED: .
5. Regarding attempted robbery with aggravating circumstances, committed on or about 14 October 1991 near Louis Trichardt, to take the R4 and .22 rifles of Stephanus Marthinus Roux (count 5 of the indictment).
5.1 The facts relating to this offence are summarised in paragraph 3 above. In terms of the chain of events as envisaged by the applicant and his colleagues, the acquisition of the firearms referred to above, would have placed the applicant and his co-conspirators only in stage (ii) referred to in paragraph 4.1 above, whereafter they would accomplish stages (iii) to (v).
The act is therefore too remote from the political objective sought to be achieved to qualify as an "act associated with a political objective" as defined by the Act; see Section 20(3)(f) of the Act.
5.2 For the reasons set out in paragraphs 1 and 5.1 above, the applicant's application for amnesty in respect of attempted robbery with aggravating circumstances, committed on or about 14 October 1991 near Louis Trichardt to take the R4 and .22 rifles of Stephanus marthinus Roux,
IS REFUSED: .
6. Regarding the following incidents of robbery (counts 8 and 9 of the indictment).
(a) Robbing Jeremiah Sono of an R4 automatic machine gun on or about 3 November 1991 at or near Wahlmansthal Military Base (count 8 in the indictment).
(b) Robbing Johannes Lebese of an R4 automatic machine gun on or about 3 November 1991 at or near Wahlmansthal Military Base (count 9 of the indictment).
The two attacks were directed at members of the South African Defence Force and the weapons in question were the property of the Force. The objective, immediate and long term was clearly political, namely, undermining State authority. The application for amnesty
FAILS: , however, for the reasons set out in paragraph 1 above.
7. Regarding the following incidents of housebreaking (counts 7 and 10 of the indictment)
(a) Breaking into the storeroom of the South African Defence Force at Oudtshoorn near or at the Infantry School on or about 25 - 28 October 1991 and attempt to steal (count 7 of the indictment).
(b) Breaking into a weapon storeroom of the South African Defence Force at or near 10 Artillery Brigade in Potchefstroom on or about 1 - 7 November 1991, and theft of certain weapons (count 10 of the indictment).
Here again, the two attacks were directed at the South African Defence Force. The acts were immediately directed at State authority and were in line with the political objective pursued by the applicant. However, the application for amnesty in respect of these two acts is
REFUSED: for the reasons set out in paragraph 1 above.
8. Regarding the following offences relating to illegal possession of weapons (counts 6 and 11 of the indictment)
(a) Illegal possession of firearms in contravention of Section 2, read with Sections 1, 39 and 40 of Act 75 of 1969 during the period June to November 1991 at or near Pretoria, Louis Trichard, Oudtshoorn, Wahlmansthal and/or Potchefstroom (count 6 of the indictment).
(b) Illegal possession or custody of weapons in contravention of Section 32(1), read with Sections 1, 39(1) and 40 of Act 75 of 1969 during the period June to November 1991 and at or near Pretoria and/or Louis Trichardt and/or Wahlmansthal and/or Potchefstroom and/or Oudtshoorn (count 11 of the indictment.
The possession or custody of these weapons have been in line with the applicant's stated political objective. However, for the reasons set out in paragraph 1 above, the application for amnesty in respect of these acts are
REFUSED: .
In conclusion, for the reasons set out above, the applicant's application for
AMNESTY IS REFUSED: in respect of all the acts for which he sought amnesty.
DATED AT CAPE TOWN ON THIS 6th DAY OF DECEMBER 1996.
(Signed)
MALL J
WILSON J
NGOEPE J
MS S. KHAMPEPE
