DECISION
The applicant, who was accused number 13 at his trial has applied for amnesty in respect of four (4) counts of murder and one (1) count of malicious damage to property committed on the evening of the 29th of September 1990 at Mashongoville, Kutloanong in the district of Odendaalsrust. The applicant was convicted and sentenced to 27 years' imprisonment.
According to the evidence given at the trial, the deceased, Shelly Erica Basson, Anthony Mark Casey, Johannes P. van Niekerk and Michael F. Belelie, had been travelling in a Datsun motor vehicle on the evening of the 29th of September 1990 in Goldfields when they were pursued by a Ford Truck in which the applicant was a passenger up to Mashogoville.
The Datsun came to an abrupt stop at Mashongoville. The applicant together with other persons who had been passengers at the back of the truck, jumped from the truck and rushed to the Datsun and broke its windows in order to get the deceased. The deceased were brutally attacked by the applicant and other members of the crowd who had gathered at the scene with pangas, knives, sjamboks and an assortment of other weapons. Ms Basson's genitals were chopped off and one of her breasts were cut off. The applicant gave viva voce evidence before this Committee and also called Mr Moikapi to testify on his behalf.
He testified that on the evening in question, he was at his home when he heard people shouting "Inkatha". He left his home carrying a sjambok towards the direction from where the noise came and in an open veld, he found a large group of about 500 people shouting "Let's kill them".
The applicant moved forward towards the Datsun and pulled one of the deceased out of the car and assaulted him. He then took out a match and tried to burn the motor vehicle, but the car did not catch fire. Someone later came with petrol and doused the car with it after the applicant set it on fire. When questioned about his participation, he stated that it was only limited to the dragging of one of the deceased from the car and punching him with a fist. He was present when the other members of the crowd further committed atrocious assaults on the other deceased, but took no part in it. He emphatically denied that he was a passenger at the back of a Ford truck which had pursued the Datsun car from the Goldsfield to Mashongoville.
It was submitted on behalf of the applicant that his motive for participating in the gruesome and brutal attack on the deceased was that he believed that the deceased were members of the Inkatha Freedom Party (IFP) who had come to attack his community. It was contended that his belief was justified because approximately four (4) days prior to the incident in question, Mr Menong, a local branch secretary of the African National Congress (ANC) had convened a meeting whereat he warned the community of an imminent attack by Inkatha and urged it to be on the alert and to be prepared to protect themselves against such an attack.
The Committee has grave difficulties with this argument because there is no shred of evidence to suggest that the applicant and/or his co-assailants could have believed that the deceased were members of the IFP at all. Firstly evidence was led that a certain Mr Hlobo who was in the crowd specifically asked the deceased whether they were members of the IFP or not, to which all said they were not. Hlobo however insisted that they were. There is no evidence why he so insisted and why the applicant and his co-assailants did not believe the deceased in this regard.
Secondly, during the initial attack of the deceased, the assailants searched the Datsun and no evidence connecting the deceased to the IFP, was found. Furthermore no weapons of any kind were found in the car which could have associated the deceased with the perceived attack by the IFP on that community.
Thirdly, the applicant testified that prior to this incident, he had heard over the radio that white IFP members who had smeared a black substance to disguise themselves as blacks had previously attacked black townships in the Vaal area and particularly informal settlements. He averred that he therefore believed the deceased to be IFP members. This testimony must be similarly rejected because the deceased were not in any kind of disguise at the time of the attack and there was therefore no basis for his belief in this regard. In fact the applicant and his assailants were at the time of the attack, strongly admonished by some members of their organisation like Messrs Menong, and Masese, who attempted to dissuade them from furthering attacking the deceased, but to no avail. Instead when so admonished, they became contumacious.
In the light of the aforegoing, it is quite evident that the applicant committed the offences for which he has applied for amnesty in an indiscriminate manner against private individuals. This was a clear case of mob violence in which the applicant participated. There was no suggestion of prior common purpose on the part of the participants. We accordingly cannot accept the evidence of the applicant when questioned, that he participated in the attack in order to kill apartheid. There had been no prior discussion or agreement amongst the participants to achieve any political objective. Furthermore, the nature of the attack was such that there was no proportionality between it and the supposed political objective, namely, sending a message to the Government that apartheid be abolished. The Committee accordingly finds that the offences were not acts associated with a political objective and his
APPLICATION IS ACCORDINGLY REFUSED: .
DATED AT CAPE TOWN ON THIS THE 13th DAY OF MARCH 1997.
(Signed)
H MALL, J
A WILSON, J
B NGOEPE, J
ADV C. DE JAGER SC
MS S. KHAMPEPE
