DECISION
On April 1992 applicant was sentenced to death on eleven counts of murder and to imprisonment for three years on each of two counts of attempted murder. The offences arouse out of a single incident on the night of 2/3 December 1988 when the occupants of house No TF83 in the Trust Feeds area in the district of New Hanover, were attacked by armed men. The names of the deceased and the victims will appear hereunder.
On the 24th of April 1994, the death sentences imposed on the Applicant were commuted by the State President and a sentence of thirty years' imprisonment was substituted. The applicant now applies for amnesty for those offences and for a further offence of arson which related to the burning down of the house of Mr Mbongwe which offence was committed at about the same time on the instructions of the applicant. Annexed to his written application, are a number of documents which include the judgment of the Trial Court, presided over by Judge Wilson. The record is 857 pages long.
Applicant joined the Police Force on the 31st of December 1975. He completed a diploma in Police Administration towards the end of 1983 and a year later he was promoted to the rank of Lieutenant. He was trained to quell or limit unrest situations and had received counter insurgency training at Milierskop, which was a counter insurgency training base for the South African Police. In 1987 he commenced work as a staff officer at the Divisional Headquarters in Pietermaritzburg. It was at that time that he came into contact with Captain, later Major, Terblanche, who was then the Head of Riot Unit 8.
The function of this riot unit was the combatting of unrest and the maintenance of law and order within the political sense of the word. It was at that time that he came into contact with what was called the Joint management Committee System which had been set up throughout the country as the Government's counter revolutionary strategy. He said that political violence had escalated to such an extent that in Natal there was virtually a civil war going on. Many policemen were killed and their homes burnt down. The ANC/UDF was not looked upon as being anti-government or anti-State, but as the enemy. The IFP was regarded as an ally of the Government and was therefore to be assisted in its fight against the ANC/UDF.
Applicant says that he soon was made the Secretary to the Joint Management Committee in Pietermaritzburg. By virtue of his position, he had access to secret government documents which dealt with a counter revolutionary strategy against the total onslaught which was being conducted by the UDF which the police regarded as the internal arm of the banned African National Congress. Part of the strategy of the Joint Management Committee System was to train Special Constables who would be trained and sent back into their community to act as a physical force or wedge against the activities of the comrades of the UDF. These Special Constables were attached to the riot units in the National Joint Management System. The police force was responsible for implementing the government's total strategy. He found the work of the Joint Management System to be very interesting and therefore applied to be transferred to the security branch, but was persuaded by the Divisional Commissioner to accept the post of Station Commander at New Hanover in January 1988. During 1988 Inkatha Youth were attacked by UDF supporters and this incident started the violence in the area. The Inkatha supporters attacked the UDF and vice versa. He found the Inkatha leadership in his area to be weak and vulnerable needing assistance. He considered it to be his duty to see to it that the UDF/ANC were countered effectively within his area. He discussed the matter with Captain Terblanche who decided to make Special Constables available to render military and offensive assistance to Inkatha. Captain Terblanche arranged a meeting at Morawa House in Pietermaritzburg. This meeting was attended by Mr Gabela an Inkatha leader, and a Youth Brigade leader as well, and was addressed by Mr David Nthombela, an important Inkatha leader. It was decided that the Special Constables would come to Trust Feeds and assist in an attack which would be launched against UDF activists in the area. That evening the Special Constables arrived in New Hanover in an unmarked kombi. They wore civilian clothes and were not known in the area. Applicant says that on the instructions of Captain Terblanche, he transported the Special Constables to Gabela's house and left them there. Their instructions were to target male persons between the ages of 16 and 35 years who were involved in the political violence in the area. Applicant says that he instructed the Special Constables to burn down the house of Mr Mbongwe, because that house had been used by the activists to store petrol bombs and other weapons.
In the early hours of the morning, the Special Constables launched the attack on house number RF83. They shot and killed eleven people and wounded two others. Applicant was not at the scene and did not take part in the actual attack, but it is quite clear that the execution of the whole plan was directed by him in his capacity as the Station Commander of the area. It is also clear that the Special Constables acted on his instructions and were accountable to him.
Within a short while after the incident, it was discovered that the Special Constables had attacked the wrong house and that the people who were killed and injured, were not the intended victims. Thereafter frantic and feverish attempts were made by some of the applicant's superiors in the Police Force to cover up this colossal blunder. But as it turned out, these attempts did not succeed and the applicant and the four Special Constables were brought to justice.
Applicant stated that he had no personal motive in committing the offences. In his judgment, Wilson J accepted that this was so. Applicant's offences were part of the counter revolutionary onslaught against the ANC and UDF activists and that he had acted within the course and scope of his duties as an officer in the South African Police Force.
We are satisfied that applicant has made a full disclosure of all relevant facts and that the offences committed by him, were associated with a political objective as defined in Section 20(2)(b) of the Act.
We note that the Special Constables who were convicted with the applicant and sentenced to the same terms of imprisonment were granted amnesty and released under the provisions of the Further Indemnity Act, No 151 of 1992. In the circumstances, we have come to the conclusion that
AMNESTY BE GRANTED: to the applicant for
(a) the murders of:
1. Mseleni Ntuli;
2. Dudu Shangase;
3. Zetha Shangase;
4. Knoyeni Shangase;
5. Muzi Shangase;
6. Filda Ntuli;
7. Fikile Zondi;
8. Maritz Xaba;
9. Sara Nyoka;
10. Alfred Zita;
11. Sisedewu Sithole.
(b) Attempted murder of:
Ida Hadebe and Nomagoli Zuli.
(c) The crime of arson relating to the destruction by fire of the property of Mr Mbongwe.
Annexed hereto is a letter from Attorneys Cajee and Associates, dated 11 November 1996, which relates to the claims for compensation by those directly affected by the offences committed by Brian Victor Mitchell. The majority of the claims have been settled and a couple are in the process of being finalised.
(Signed)
MALL, J
WILSON, J
NGOEPE, J
ADV C. DE JAGER
MS S. KHAMPEPE
