DECISION
The applicant applies for amnesty in respect of three offences of which he was charged, convicted and sentenced, namely, murder, robbery and escaping from lawful custody. He has admitted, both at his trail and the amnesty hearing, that, on 29th August 1989, he murdered Potoko Makgalemele (herein after referred to as "the deceased"). That on 19 September 1989, he robbed Feresinha Pita and Francisco Pita at the Poolside Liquor Store; and that, during February 1990, he escaped from lawful custody. The applicant joined the Afrikaans Weerstand Beweging (the AWB) during 1986. He resigned from the AWB during or about 1989 in order to join an organisation known as the Orde van die Dood. He was a member of the Orde van die Dood when he committed the crimes in respect of which he applies for amnesty. The evidence portrays the Orde van die Dood as having been an extremist right-wing political organisation which had as its aim the assassination of senior members of government and, at a later stage in its existence members of the African National Congress with it's ultimate objective being establishment of a so-called "Volkstaat".
The applicant stated that he murdered the deceased because he received an instruction from the leader of the Orde van die Dood to kill a person. This would prove that he had the ability to kill and that he would therefore be an effective member of the Orde. The killing of the deceased was done as an initiation into the Orde. The applicant also stated that he killed the deceased to satisfy himself that he was capable of carrying out his duties as an assassin. The applicant was not given any instruction as to who he should kill for the purposes of being initiated into the Orde. He stated that he selected the deceased as his victim because the deceased was a Black man. He explained that according to his religious beliefs, Black people were his natural enemies. He selected the deceased in particular as he had seen the deceased ferrying White girls in his taxi. This he found to be objectionable. All that the applicant knew of the deceased was that he was a taxi driver. He did not know and still does not know, the deceased's political affiliation or views or whether or not the deceased was politically active. The applicant was also not given any instructions or guidance by his leaders as to when and how his initiation victim should be killed, nor was he informed of any report back procedure.
The fact that the applicant murdered the deceased pursuant to an order to an order given to him by the leadership of the political organisation of which he was a member does not, in the circumstances of this matter, justify him being granted amnesty for such a murder.
Section 20(10 of the Promotion of National Unity and Reconciliation Act, No 34 of 1995 (hereinafter referred to as "the Act") provides, inter alia, that amnesty shall be granted if the committee is satisfied that "the act, omission or offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of subsections (2) and (3)".
The only provisions of subsection (2) of section 20 of the Act are relevant to the applicant as being a member of "a publicly unknown political organisation or liberation movement" are subsections (2) (a) and (2) (d) which provide as follows:
"(2) In this Act, unless the context otherwise indicates, act associated with a political objective" means any act or omission which constitutes an offence or delict which according to the criteria in subsection (3) is associated with a political objective, and which was advised, planned, direct commanded,ordered or committed within or outside the Republic during the period 1 March 1960 to the cut-off date, by
(a) any member or supporter of a publicly known political organisation or liberation movement on behalf of or in support of such organisation or movement, bona fide in furtherance of a political struggle waged by such organisation or movement against the state or any former state or another publicly known political organisation or movement;.......
(d) any employee or member of a politicly known political organisation or liberation movement in the course and scope of his or her duties and within the scope of his or her express or implied authority directed against the state or any former state or publicly known political organisation or liberation movement engaged in a political struggle against that political organisation or liberation movement or against members of the security forces of the state or any former state or supporters of such publicly known political organisation or liberation movement, and which is committed bona fide in furtherance of the said struggle."
The murder of the deceased was committed to satisfy the internal initiation requirements of the Orde van die Dood. It cannot, in our opinion, be said on any basis that the murder of the deceased was committed bona fide in furtherance of a political struggle waged by the Orde van die Dood against the state or another political organisation or liberation movement or that the murder of the deceased was directed against the state or a political organisation or liberation movement or any member of the security forces or member of any political organisation or liberation movement - particularly so as the deceased must be regarded as having been an innocent private individual whose political affiliation and views were unknown.
We are also satisfied that when taking into account the criteria set out in subsection 3 of section 20 of the Act, the applicant does not qualify for amnesty in respect of the murder of the deceased. While the applicant satisfies one such criteria, namely, that he killed the deceased in the execution of an order, that, as stated above, is not sufficient to warrant the granting for such a killing. The motive of the applicant in killing the deceased was to appease his superiors in the Orde and to displace any doubts they (or, indeed, the applicant himself) may have had about his ability to act as an assassin. The killing of the deceased was not only unreasonable but was totally out of kilter with and disproportionate to the achievement of the stated political objective of the Orde, that is, the elimination of senior members of government or other political movements. It amounted to nothing more than a tragic loss of life with no tangible or foreseeable benefit for the applicant's political organisation. We are, in the circumstances, unable to find that the killing of the deceased achieved any desired political objective.
With regard to the application for amnesty of the robbery, the applicant stated at the amnesty hearing that it was the policy of the Orde van die Dood to commit robberies to organise funds for the organisation for the subsistence of its members and that the robbery committed by himself was in furtherance of such policy. A witness called by the applicant, one Andries Stephanus Kriel, confirmed the evidence of the applicant that there was a general policy of robbing to acquire funds for the organisation. We are, after careful consideration prepared to give the applicant the benefit of the doubt and to find that the robbery was not committed for personal gain and to accept the applicant's explanation as to why his evidence given before us differs from that placed before the trial court.
We are therefore of the view that the application for amnesty in respect of the robbery is GRANTED.
The evidence of both the applicant and the said Kriel reflects that general orders were given to members to escape in order to continue to fight for the cause of the organisation. The escape did not involve any gross violation of human rights and the applicant did in fact continue to serve the Orde van die Dood during the period from his escape to his recapture. We are of the view that his application in respect of the escape should also succeed.
In the result,
a) the applicant for amnesty in respect of the murder of Potoko Franzar Makagalemele which was committed on 29 August 1989 is REFUSED;
b) the application for amnesty in respect of the robbery of Feresinha Pita and Francisco Pita at the Poolside Liquor Store was committed on 19 September 1989 is GRANTED; and
c) the application for amnesty in respect of the applicant's escape from lawful custody during February 1990 id granted.
SIGNED ON THIS THE 8TH DAY OF JULY 1998.
JUDGE S MILLER
ADV L GCABASHE
MR J MOLOI
ADV F BOSMAN
