DECISION
All the applicants, save for Mr Mohapi, were at all material times relevant hereto members of the task force of the Pan Africanist Congress. Mohapi was immediately prior to the attack a member of the ANC Youth League who had at the time of the attack defected to the task force of the PAC because he had found its policies more appealing.
The Applicants apply for amnesty in respect of the following offences:
1. Murder of John Benard Smith;
2. Robbery with aggravating circumstances,
in that on or about the 25th July 1993 at Wesselsdal in the district of Vanstadensrus, the Applicants killed the deceased by stabbing him with a knife on his farm at Wesselsdal and robbed him of the following items:
(a) A Mercedes Benz;
(b) National video machine
(c) Telefunken stereo;
(d) Colmont binoculars with case;
(e) 7,65 Bernadelli pistol;
(f) .38 Smith 7 Wesson revolver;
(g) 6.35 Haenul Suhl pistol;
(h) Black and red knitted jacket;
(i) Dark blue tracksuit jacket;
(j) Green check coat;
(k) Hat;
(l) Lorus alarm clock;
(m) Bottle whisky;
(n) Bottle brandy;
(o) Litre diet coke;
(p) Bunch of keys;
(q) Cash.
Petros Mohapi, Simon Oliphant and Paulos Mtjikelo were convicted of both murder and robbery and sentenced to an effective 25 years imprisonment. The other Applicants were convicted only on the charge of robbery with aggravating circumstances and were each sentenced to 12 years imprisonment.
On or about the 23rd July the Applicants left Botshabelo for Wesselsdal with the purpose of killing the farmer and robbing him of valuable items which they intended to use in order to carry out other activities of their unit. Unfortunately this operation could not be executed on the 23rd because of the presence of visitors on the farm. It was only the 25th July that the Applicants were able to execute this operation. On that day Mjikelo, Mohapi, Oliphant and Xhiba went to the farm and were attended to by Mrs Smith. They told Mrs Smith that they wanted petrol because their car had run out of petrol. Mrs Smith went inside the house and called her husband. Mr Smith came out, spoke to the Applicants and upon hearing their dilemma undertook to assist them to obtain petrol from his car. Mr Smith gave Xhiba his storeroom key and requested him to get a container and a pipe from the storeroom to use to extract petrol from his car.
The other three Applicants accompanied Smith to the garage and whilst he was busy trying to syphon petrol from the car Mohapi stabbed him at the back and Smith fell onto the ground. When he was on the ground Oliphant stabbed him on the chest and other parts of his body ultimately inflicting approximately nine stab wounds. Whilst the stabbing was going on Mjikelo heard a sound of a gunshot and quickly left the garage to investigate what was going on. He was at that stage armed with a 9mm pistol. When he went outside, he found Mrs Smith armed with a .38 pistol and talking to Xhiba. Mjikelo disarmed Mrs Smith and dragged her at gunpoint into house.
Once inside the house he ordered Mrs Smith to disclose where the weapons were kept, which she did.
Mtjikelo removed three guns from the safe which was in the bedroom and a wallet with two R50 notes. He then instructed Mabitsa and Oliphant to tie up Mrs Smith which they did using shoe laces. Mabitsa and Oliphant then put Mrs Smith inside a wardrobe and locked it. As Mtjikelo was about to leave the house he noticed a black person at the gate. He then fired a single shot in the air to scare that person away. He thereafter removed the music centre. He and his colleagues also stole Smith's Mercedes Benz, which they intended to use in future operations.
The second Applicant, Oliphant confirmed the evidence of Mjikelo in so far as it related to the planning of the attack and the role he played in the killing of Mr Smith.
He testified that he and Mabitsa tied up Mrs Smith and locked her in the wardrobe.
He further testified that he took a jersey from the wardrobe because it appeared to be valuable. He confirmed that it was the objective of the PAC to wage the struggle for the return of land to the African people and that was why he was involved in that operation.
When it was pointed out to Oliphant that when the attack took place negotiations were going on at Codesa in which the PAC was a participant, Oliphant stated that the PAC had not suspended the armed struggle and that while the negotiations continued, operations were also conducted in order to put pressure on the government to give in to the demands of the liberation movements during the negotiations. He stated that the weapons that were used in the operation namely the 9mm pistol and the two knives that were used to stab Mr Smith were brought in by Mjikelo.
Mabitsa gave an account of his participation in the attack. He stated that he was not involved in the murder of Mr Smith and that he was acquitted of that offence. He was only applying for amnesty in respect of the robbery in which he participated. He stated that on the day in question he stole a coat which he considered to be an item of value.
Xhiba also confirmed Mjikelo's testimony in so far as it related to the role he played in the killing of Smith. He stated for his part he had stolen a video machine and that when he was about to leave the house with the video machine he saw a woman approaching from about 30 paces where he was. He then went out and fired a shot in the air to scare the woman away. He stated that after firing the shot the woman ran in the direction from which she had come and he was able to leave the house.
Wa-Nthoba testified that he also was applying for amnesty only in respect of the robbery as he was acquitted for the murder of Mr Smith and the attempted murder of Mrs Smith. He confirmed the evidence of the others about how the attack was planned and his role in the operation. His role was to guard the area to make sure that nobody approached the house where his other four colleagues were. He stated that whilst he was in that vicinity he heard a gunshot and quickly ran into the house to investigate what was happening. He there met Mjikelo who instructed him to remove the guns from the safe. The weapons that he removed from the safe was a .303 and two other weapons that he was unable to identify. He testifies that he thereafter removed a bottle of whisky and a bottle of brandy and a bag containing a pair of binoculars. He conceded that the theft of the bottles of brandy and whisky were unauthorised and as such were misguided acts of which he was ashamed.
Mohapi also gave viva voce evidence and confirmed the evidence of Mjikelo in so far as it related to his participation in this operation.
The Applicants called Mr Abel Kotle, the regional commander of APLA in Bloemfontein to give evidence particularly with regard to Operation Great Storm. Mr Kotle explained that Operation Great Storm was intended to intensify the armed struggle and was declared at a time when APLA was changing its tactics in the 1990's so as to be able to intensify its struggle against the government. He stated that Operation Great Storm was decided upon by APLA's military commission which included the political leadership of the PAC and the military leadership of APLA. He said that one of the phases of Operation Great Storm was to step up attacks on farmers because the PAC believed that the farming community had participated in the dispossession of the African people and they were beneficiaries of the land taken away from the Africans. He confirmed that the Applicants in committing the offences in question under Operation Great Storm were therefore acting in accordance with the policy of the PAC.
He further testified that when the Applicants committed the offences in respect of which amnesty is sought, the armed struggle was continuing even though the PAC was participating in the Kempton Park talks and that the only time that the political leadership gave an order to cease hostilities was on the 16th January 1994. He was very adamant that that was the only time when the PAC decided to suspend the arms struggle.
The Azanian Peoples Liberation army made a submission to the
TRC on the 7th October 1997 in which it acknowledged that certain "repossession operations" were indeed conducted by their units in order to finance the armed struggle "because their resources were not always adequate" and that they had to compensate and augment that by repossessing" and that such repossessions wee sanctioned by the APLA's High Command.
Having regard to all the evidence led before us we are satisfied that the Applicants were members of the task force of the PAC, that they were acting on behalf of or support of their organisation when they committed the offences in question and that they acted in compliance with the instruction of Mr Mjole to implement Operation Great Storm and attack the farming community and that in stealing the items mentioned herein above they did so in compliance with the "repossession" policy of APLA as alluded to in their submission to the TRC. Quite clearly the theft of the liquor and cool drink by one of them was a misguided act and not authorised by Mjikelo.
We therefore accept that the Applicants bona fide believed that by committing the offences in respect of which they seek amnesty they were advancing the struggle which was being waged by their political organisation against the then government for the return of the land to the African people. We therefore, accordingly find that the offences committed were acts associated with a political objective.
The 9mm pistol and the knives they possessed were used for the purposes of carrying out this operation. Such possession was therefore an act associated with a political objective.
In the light of the aforegoing we are satisfied that all the requirements of Section 20(1) of the Act have been complied with.
Amnesty is hereby GRANTED to:-
1. (i) PETRUS MIHAPI
(ii) PAULOS MJIKELO
(iii) SIMON OLIPHANT
for the murder and robbery of John Bernard Smith and for the unlawful possession of a firearm committed at Wesseldal in the district of Van Standersrus on the 25th July 1993;
2. (i) JACOB MABITSA
(ii) JOHN XHIBA
(iii) JOHN WA-NTHOBA
for robbery with aggravating circumstances of John Bernard Smith and for the unlawful possession of a firearm committed at Wesseldal in the district of Van Standersrus on the 25th July 1993.
SIGNED ON THIS THE 22ND DAY OF JUNE 1998.
MALL, J
SISI KHAMPEPE (MS)
ADV NTSIKI SANDI
