DECISION
The applicant applied for amnesty in respect of the following acts, omissions or offences after an amendment of his original application was granted:
1. The attempted murder of Susan Phehlane (the deceased) on 14th July 1991 at Majwemasweu near Brandfort;
2. The attempted murder of Patrick Phehlane on the same date and at the same place;
3. Malicious damage to the property of Morgan Phehlane on the aforementioned date;
4. Assault with the intention to inflict grievous bodily harm to Edward Phehlane on the same occasion;
5. Malicious damage to the motor car of Edward Phehlane on the same day and at the aforementioned place.
The applicant and the two co-accused Nicolaas Maeeane and Patrick Maloisane were convicted as follows:
The applicant was found guilty of all the offences whilst Nicolaas Maeeane was only convicted on the 3rd count - malicious damage to property relating to the burning of a cafe, and Patrick Maloisane was convicted on count 3, as well as on the 5th count.
The applicant was sentenced to six (6) years' imprisonment on count 1, six (6) years' imprisonment on count 2, two (2) years' on count 3, six (6) months on count 4 and two (2) years' imprisonment on count 5. The Court ordered the sentences to run concurrently in such a way that the applicant effectively serves a jail sentence of ten (10) years.
Nicolaas Maeeane was sentenced to two (2) years' imprisonment of which six (6) months were suspended and Patrick Moloisane to a total of four (4) years' imprisonment of which six (6) months were suspended. The sentences were handed down on the 14th of August 1996. The applicant had eight (8) previous convictions - theft of a watch, assault with a knife, possession of dagga, theft of cigarettes, assault, theft of a gas bottle, escape and robbery. None of these acts seem to be politically related or motivated.
The applicant was born in 1965 and alleges that he stayed with Mrs Winnie Madikizela Mandela for a period since 1985 and was politically influenced by her as well as by Morgan Phehlane, the deceased's husband. Morgan Phehlane was then seen as a leader in the resistance movement against the then government of the RSA.
A decision was taken by the local leadership of the Self Defence Unit (SDU), aligned to the African National Congress (ANC), to kill the Phehlane's: Morgan, Susan and Edward for the reasons set out below. Morgan Phehlane was at one time a respected leader of the ANC in the Brandfort area. He was a church leader as well as a community and political leader. The applicant alleges that since 1986, however, Morgan was suspected of collaborating with the National Party (NP) government. According to the applicant, the suspicion was based on the following:
1. During 1986 Morgan Phehlane was detained in terms of the then prevailing Emergency Regulations. He however, told the applicant and other co-detainees that he knew he would be released about a week before his actual release was effected. This was peculiar because no one knew beforehand when he was going to be released.
2. He was in fact released a few days before the rest of the Brandfort activists were released.
3. He was arrested for possession of explosives, but nothing came of the case.
4. He in fact stood for election as a councillor during 1988 knowing that this was not approved by the ANC or the United Democratic Front (UDF).
5. Various attempts were made by the applicant and other ANC/UDF members to persuade Morgan Phehlane and his wife, Susan Phehlane, to resign as members of the Local Council. They declined to do so although they must have realised that it was against ANC policy to serve on the council.
6. Morgan Phehlane's son, Edward, was seen as the leader of a gang which was perceived to be "anti-comrade". It is alleged by the applicant that this gang was collaborating with the police and did not heed calls for a consumer boycott.
The SDU warned the Phehlane's and even emptied night soil buckets in front of their cafe, to persuade them to resign from the council, but they ignored the request. The attacks on the deceased and Edward Phehlane was planned by the Self Defence Unit of which the applicant was a leader. They also intended to kill Morgan Phehlane but he could not be found when the attack was launched on the deceased, who was at the time working in the cafe belonging to the Phehlane family.
The younger Phehlane child, Patrick, aged 11 years, was also attacked and severely injured. At the trial he was described as a defenceless child whilst the deceased was described as an aged woman who was attacked and stabbed while asleep. The applicant was found guilty of attempted murder on the deceased because the Trial Court could not ascertain whether she died as a result of the knife attack or as a result of the fire after she was left wounded in the cafe. The Trial Court was also in doubt as to whether the applicant and his co-accused in fact set the cafe alight or whether other persons or factors caused the fire.
In his evidence before the Committee, the applicant accepted responsibility for the attempted murder on the deceased, the assault on Edward Phehlane and the malicious damage to property counts. He in fact averred that they planned to kill Morgan, Susan and Edward. In the end they only succeeded in bringing about the death of Susan and in causing damage to the property of the Phehlane family as intended.
The Committee accepts that these offences were associated with a political objective, viz, the persuade people not to serve on the local government bodies. The ANC identified councillors to be legitimate targets. Whether their killings were expressly authorised might not be clear, but it was a fact that a number of councillors were killed when they failed or refused to resign.
Mr Morgan Phehlane appeared in person before the Committee to oppose the granting of amnesty. He handed in a letter reading as follows:
AFRICAN NATIONAL CONGRESS
3 September 1991.
General M Phehlane
P.O. Box 87
BRANDFORT
9400
Dear Ms Phehlane
I acknowledge recept of your letter dated 17th August 1991 in which you describe certain tragic events which have befallen you and for which we must express the gravest shock and concern. Please do accept our heartfelt condolences in your suffering and bereavement.
What has been done to you is completely not in keeping with the policies of our organisation and one is ashamed to be informed that these things are said to be done in the name of the African National Congress.
Your letter is being passed on to the Secretary and I am certain he will contact you and take immediate action to see to it that those who are responsible are brought to book.
H. Makgothi"
It is not clear whether the author of the letter knew the reason for the killing to be the refusal to resign as councillors and whether he was authorised to write the letter. It is stated in the letter that it has been referred to the Secretary General for further action. We have no evidence that further action was taken. It is however clear that the ANC is not opposing the application for amnesty and that the letter should not be interpreted to convey opposition to the application. In fact, Mr Memani, who appeared on behalf of the applicant on the instruction of the ANC, submitted that the deeds were approved by Mrs Winnie Mandela who harboured and assisted the applicant after the commission of the offence. This submission was based on the fact that the applicant gave evidence that after committing the offence, he travelled to Johannesburg where he reported the happenings to mrs Mandela, who accommodated him at the Safari Hotel and advised him to quit the country. Mrs Mandela was given notice in terms of Section 19(4) of the Promotion of National Unity and Reconciliation Act, No 34 of 1995, of the above fact but did not make any representations in this regard. The applicant regarded her attitude as an approval on behalf of the party. He thus avers that he acted on behalf of, and with the approval of, the liberation movement in terms of the Act.
The actual attack was described by the applicant as follows"
"We were at Mandela Square squatter camp, that is where we came together and discussed the issue of eradicating these people. Patrick Moloisane, Nicholas Mayani, Ou Bench, Christian Bosman and myself. The five names that I have mentioned, I have indicated before that we were the SDU's."
He later continued:
"I have indicated that it was Mr Morgan Phehlane, Susan Phehlane, Edward Phehlane, Rabana Mudsi ... and a certain Mr Buda ... were the people who were supposed to be removed."
As a result of the decision, they went to the Phehlane's shop where they found Mrs Susan Phehlane. After enquiring where her husband, Morgan, was, Mayani hit her with a bar while the applicant started chopping her "with a jungle, a big knife". "We stabbed her to such an extent that she would never survive." The lights were in the meantime switched off and the applicant went to the kitchen to get material to start a fire in order to burn the shop. While he was in the kitchen he heard a cry. He went back into the shop and found Maluwisani was stabbing someone who was laying on the floor. He asked "who is the person you are stabbing?" He said to me, "it is a dog belonging to Morgan". I said, "wait a minute", and I took matches and I lit the matches and I said "this is a child" ... Muthlatsi understood me and he stopped his attack. I myself took Patrick, I dragged him out of the shop because I knew we were going to burn the shop down. We wouldn't like him to burn inside the shop.
The Committee will deal with the assault on Patrick later on in the decision.
As already pointed out the group decided that Edward Phehlane should also be killed. After the killing of Susan Phehlane and the burning of the cafe, they went looking for Edward in order to carry out their decision. They found him and started attacking him. He, however, managed to escape, whereupon they set the vehicle he was driving, alight.
The Committee concludes that these acts were associated with the political objective of destroying the Phehlane's influence in local politics. Edward was seen as the leader of the group formed to support Morgan and Susan Phehlane. This group was, according to the evidence, perceived to be collaborating with the then government structures in opposing the UDF/ANC alliance.
The applicant's evidence before the Committee contradicts his own evidence at the trial. It also contradicts the evidence of the boy, Patrick, and the evidence given by Alfred Shlalea at the trial. At the trial the applicant accepted responsibility for the attack on Patrick, admitted that he stabbed him eight times and left him in the shop. This corroborated the evidence of Patrick who testified that he recognised the applicant as the person who stabbed him and was also in accordance with the evidence of Alfred Shlalea who testified that he found the stabbed child in the burning cafe and carried him to safety.
The applicant testified before the Committee that his evidence at the trial was not true in so far as he accepted blame for the assault on the child. He took the blame in order to assist his companions. This might have been the position, but it does not explain the evidence of the boy himself or that of Alfred Shlalea.
The applicant finds himself on the horns of a dilemma - if the Committee accepts his evidence at the trial as the true version, then obviously he did not make a full disclosure of the relevant facts pertaining to his own role in the assault of the child before the Committee. He would then not be entitled to amnesty on the grounds on non-disclosure.
The possibility of the granting of amnesty on the evidence given by the applicant that he in fact did not assault Patrick, needs to be investigated. If he in fact did not assault Patrick (contrary to his own, patrick's and Alfred's evidence at the trial) what would the position then be?
A member of the Committee put the following to the applicant:
"As I understand your evidence before us, there was no intention when you went to that place of causing any harm to this little boy, is that correct"?
The applicant: "That is correct sir."
Committee member: "You yourself did not harm him in any way?"
Applicant: "Yes, I protected him, as he is still alive today."
Committee member: "That as soon as you realised that Patrick Moloisane was attacking him, you stopped him?"
Applicant: "That is true."
Committee member: "So you were clearly not guilty in any way of any attack on this boy, Patrick Phehlane?"
Applicant: Yes sir."
As far as the attempted murder of Phehlane is concerned,t he Committee is of the opinion that amnesty should be refused for the following reasons:
Amnesty can be granted in respect of an act, omission or offence associated with a political objective according to Section 20(1)(b) of the Promotion of National Unity and Reconciliation Act, 34 of 1995. The submission was made that amnesty should be granted in respect of an "act", but "an act associated with a political objective" (according to Section 20(2) of the Act) "means any act or omission which constitutes an offence or delict..."
The applicant denies that he committed any act which constituted an offence. There was no common purpose to attack the boy, Patrick Phehlane. They never planned to injure him. There is no evidence that he should have foreseen that Moloisane would attack an 11 year old child who was not connected to politics in any way. He himself didn't (on his present evidence) injure or intended to injure the boy, therefore, he didn't commit any offence or delict. At the trial he admitted that he injured the boy and apart from the boy's evidence, his own admissions must have been the most important factor leading to his conviction. The committee is not sitting as a court of appeal or review and is bound by the provisions of the Promotion of National Unity and Reconciliation Act, 34 of 1995.
Amnesty cannot be granted to an applicant when it is alleged that somebody else committed an offence unless it is on the basis of common purpose. The applicant himself excludes common purpose.
The applicant, on the evidence before us, committed the following offences:
1. The attempted murder of Susan Phehlane on the 14th of July 1991 at Majwemasweu near Brandfort;
2. Malicious damage to property of Morgan Phehlane on the aforementioned date;
3. Assault with the intention to inflict grievous bodily harm to Edward Phehlane on this same occasion;
4. Malicious damage to the motor car of Edward Phehlane on the same day and at the aforementioned place.
The Committee is also of the opinion that the abovementioned offences were associated with a political motive, that the requirements of the Act were met and that amnesty should be granted in respect thereof.
AMNESTY IS GRANTED: in respect of
1. The attempted murder of Susan Phehlane (the deceased) on 14th of July 1991 at Majwemasweu near Brandfort;
2. Malicious damage to the property of Morgan Phehlane on the aforementioned date;
3. Assault with the intention to inflict grievous bodily harm to Edwart Phehlane on the same occasion;
4. Malicious damage to the motor car of Edward Phehlane on the same day and at the aforementioned place.
AMNESTY IS REFUSED: in respect of
1. The attempted murder of Patrick Phehlane on the 14th of July 1991 at Majwemasweu near Brandfort.
The result of the decision is that the sentence of the ten (10) years' imprisonment is reduced and the applicant is to serve the remainder of the six (6) years' imprisonment imposed on the 14th of August 1996, for the attempted murder of the boy, Patrick Phehlane. The period of imprisonment would be running as from the 14th of August 1996.
DATED THE 12th DAY OF AUGUST 1997.
WILSON, J
NGOEPE, J
C DE JAGER. SC
AMENDED PAGE 12
the 14th of August 1992, for the attempted murder of the boy, Patrick Phehlane. The period of imprisonment would be running as from the 14th of August 1992.
SIGNED ON THE 8th DAY OF SEPTEMBER 1997.
WILSON, J
NGOEPE, J
C DE JAGER, SC
