DECISION
The applicants both apply for amnesty in respect of the murder of Mr. Diederick Jacobs, the armed robbery of several articles, including fire-arms, from the Jacobs home in Parktown North, Johannesburg on the 16th of January 1994 and the armed robbery of several articles from the home of Mr. And Mrs. K.R. Stanton in Parkview, Johannesburg on the 18th of January 1994.
Both applicants were convicted of murder and two armed robberies with aggravating circumstances and are at present serving sentences in the Leeukop Maximum Prison in Johannesburg. Michael Kgiba Mofokeng (hereinafter referred to as the first applicant) is serving a sentence of 27 years and Nkosinathi Nkabinde (hereinafter referred to as the second applicant) a term of life imprisonment. The applicants were convicted together with another accused, one Chitja Thabang, who did not apply for amnesty. The first applicant has no other convictions prior to the ones under discussion. The second applicant had previously been convicted for other offences including two robberies and theft of a motor vehicle, but he does not apply for amnesty in respect of these offences.
Both applications are opposed by the victims on the basis that the acts were not committed with a political objective as required by Section 20 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 (hereinafter referred to as the Act).
Both applicants testified at the hearing.
The Evidence of the First Applicant, Mofokeng
The applicant testified that he was a supporter of APLA at the time of the incidents, that he was introduced to one Monde, an APLA soldier since deceased, by one Kopane, also deceased, whom he knew as a PAC supporter and with whom he often had political discussions. Both the aforementioned deceased were also involved in the offences in respect of which amnesty is sought by the applicants.
He further testified that Monde was the commander of the group who committed the murder and robberies and that Monde had told him of a base in the Transkei where he could be "informed and get military training". At the time he knew very little about the PAC and had little knowledge that the PAC had suspended the armed struggle at the time that the incidents took place. On their way to the Transkei, after the robberies, the applicant, co-applicant and the three other co-perpetrators were involved in an accident in one of the stolen vehicles. Some of the articles that had been robbed were found in the possession of the two applicants but the major part of the loot they had left at the lodgings of Kopane. All the loot was, according to the applicant, intended for the PAC to "enhance" its objectives. He explained that the watch he had kept was not handed over to Monde because someone was watching from the outside and he then forgot about the watch.
The Evidence of the Second Applicant, Nkabinde
The evidence of the second applicant who was the first to testify, broadly accorded with that of the first applicant. He further testified that he was a trained APLA soldier who acted on the instructions of the commander, Monde Radebe. He bona fide believed that he was acting in the best interests of the organization and did not act for personal gain nor out of personal malice, ill-will or spite. When asked about the stolen watch found on his person at the time of the accident, he explained that he had asked Monde for a jacket when he was cold and that the stolen watch was in the pocket of the jacket. He denied that other pieces of jewelry were found under his pillow at the hospital to which he had been taken after the accident and suggested that it was a story thought out by the police. He also denied having asked the nurse at the hospital to make a phone call.
Both applicants testified that the major purpose of the operations was to "repossess" arms and "whatever we can use to advance and protect our gains in the struggle". In cross-examination by the evidence leader, the second applicant had great difficulty in answering questions relating to the policies and structures of the leadership of APLA. He denied any knowledge of the fact that at the time of the incidents APLA had suspended the armed struggle.
The Committee is satisfied that the applications of the two applicants comply with the formal requirements of the Act. The Committee is, however, not satisfied that the applicants committed the acts with a political objective as required by Section 20(1) of the Act. The reasons are as follows:
1. Nobody of APLA or the PAC testified on behalf of the applicants and there was no independent evidence to show that the applicants were indeed supporters or members of APLA or that Monde Radebe was a commander of an APLA unit. Although they made reference to having been members of a so-called "repossession unit", the Committee finds it highly improbable that a unit of this nature would comprise five people largely unknown to each other and some not known to be either members or supporters of APLA or the PAC. This is fortified by the fact that the only other surviving co-perpetrator did not apply for amnesty.
2. The first applicant in reply to a question by a member of the Committee was unable to explain any political activities in the townships he knew of, or participated in prior to the incidents under discussion. The second applicant was unable to tell the Committee of crucial figures in the structures of the PAC and APLA, and despite his claim that he had undergone military training, was not even able to explain what the word "platoon" meant.
3. It is common cause that at the time of the incidents APLA had already suspended the armed struggle. The Committee is mindful of the fact that the first incident took place immediately after the suspension of the armed struggle but the same cannot be said about the second incident. If the applicants were such devoted followers of APLA and its activities they would at least have known of the suspension at the time of the second incident.
4. The co-perpetrator of the applicants Chitja who was convicted of the same offences did not apply for amnesty and obviously did not regard his involvement as of a political nature. On their own evidence, neither of the applicants knew him at the time of the robberies and simply regarded him as someone known to Monde Radebe.
Having regard to the above and generally the manner in which the operations were carried out inter alia the assault on Mr. Jacobs after he had been wounded and asked for medical help, the manhandling of the six year old boy at the Stanton home, the division of the loot before the applicants and their co-perpetrators set out for the Transkei and the leaving of the loot, allegedly for the PAC, in the township without any precautions, the committee finds that the acts committed were ordinary criminal acts committed for personal gain and not acts committed with a political objective as envisaged in Section 20 of the Act.
Accordingly the applications of both applicants are
REFUSED: .
SIGNED ON THE 9 DAY OF DECEMBER 1998.
JUDGE S. MILLER
ADV. J. MOTATA
ADV. F.J. BOSMAN
