DECISION
The applicant who is presently serving a long term imprisonment at Victor Verster Prison, Paarl was convicted and sentenced for the following offences:
1. The murder of:
1.1 Ntombizodwa Joslina Elles
1.2 Sincilo Pauli; and
1.3 Timothy Soga
2. The attempted murder of:
2.1 Tienne Elles; and
2.2 Ayanda Ndinisa
3. Unlawful possession of a Commando Uzzi machine gun without a permit; and
4. Unlawful possession of ammunition for a machine gun rifle.
The offences arose out of a single incident on the night of 19 March 1993 when the occupants of House No 2210 Old Cross Roads, Cape Town, were attacked by armed men. Applicant who is now 34 was employed as a taxi driver at the time of the occurrence of the acts referred to herein and was resident at Nyanga East. He testified that in 1991 he joined the Pan Africanist Congress of Azania (PAC), and a year later its Task Force. He says the PAC as an organisation had a problem in that its members were being attacked by gangsters. Members of the Task Force were tasked by the PAC to defend its members against the attacks. He says he did not know who those gangsters were and where they were to be attacked in retaliation.
Then on the day of the attack he was instructed by one Shaun Bako who had previously recruited him into the Task Force that he should go to Table Top. This is where he was to meet other Task Force members. When he went there it transpired that these members were Shaun; Wela Siphiwe Mkweso, the Regional Commander; Come Again and Teenage. Mkweso has since deceased and full names and particulars of other persons who used code names are unknown to him. Whilst they were there Mkweso told them that they were going to be attacking gangsters in a certain house. He did not say where exactly and who those gangsters were but it happened that this was the house where the victims were attacked. The group was to be led by Teenage and he was also going to point out the house. Later that evening and whilst they were still at Table Top a man who is known to him as Victor Sam came. He was carrying a brown bag which he gave to Mkweso. The latter opened it and took out two Uzzi machine guns. One was given to him, the second one to Come Again, and the pistol to Teenage. They were then ordered to follow Teenage which they did.
When they came to the house he was told by Teenage to follow him into the house and once inside to fire at the occupants. He did not have to go into the rooms. Come Again was instructed to remain outside to be on the look out for possible interference with the attackers. All was done as ordered and on entering the house he saw people on the left hand side as he was shooting. When Teenage gave a signal that they stop shooting they stopped and left. Immediately thereafter the applicant was arrested by the police a short distance away from the house. His comrades managed to escape and he was the only participant in the attack who stood trial. Tragically, the victims and occupants of the attack were not members of a gangster group as applicant had been told. They were civilians who included women and children who were sitting and watching TV. They had had no quarrel whatsoever with the PAC. There is no evidence that they were involved in any political organisation. The applicant himself confesses that he is unable to say if they had any political affiliation. For that matter he does not even know them. In any event if has not been suggested that they were attacked because they belonged to an opponent political group. The applicant says although he heard a woman's voice screaming whilst they were shooting, he did not stop shooting because as an APLA soldier he was carrying out orders.
There is a number of troubling issues in this case inter alia whether the applicant was truly a member or supporter of the PAC and what could possibly have been the motive for the attack. We do not intend to speculate and also do not deem it necessary to traverse all the evidence that was led pertaining to these issues. The crisp question to consider is whether the attack is an act associated with a political objective. Having regard to the evidence as whole we are unable to agree. Even if we were to give the applicant the benefit of doubt that he was a member of the PAC Task Force his application still would not succeed. The attack was not directed at political opponents but members of a gangster group.
The Committee accordingly finds that the offences were not acts associated with a political objective and his application is therefore
REFUSED: .
SIGNED AT CAPE TOWN ON THIS 27 DAY OF NOVEMBER 1998.
JUDGE HASSAN MALL
DR WYCLIFFE TSOTSI
ADV NTSIKELELO SANDI
