DECISION
The applicant makes application for amnesty in respect of the murder of Sgt Malaoh ("the deceased"), robbery of the keys of a motor vehicle, attempted robbery of a firearm and the unlawful possession of a firearm and ammunition in terms of Act 34 of 1995 as amended ("the Act").
He said that as a member of the African National Congress ("ANC"), he joined the Self Defence Unit (SDU) in what became to be known as the Mandela Informal Settlement. He testified that the nearby hostel housed many members of the Inkatha Freedom Party ("IFP"). It is well known that there was extreme conflict between the members of the two aforementioned parties. This was based solely on political differences.
He testified that because of the necessity to arm themselves in the quest to enable them to protect the community, he was ordered together with others to obtain firearms for this purpose.
The ANC established a system of Self Defence Units to protect themselves and the community at large against attacks. The applicant said that it is in this context that on the 27th August 1992 he approached a motor vehicle (panel van) on the 27th August 1992 in order to get hold of firearms. He said that he saw a microphone such as those known to be used by policemen on the windscreen of the vehicle and they thought that it must be a police vehicle in which he is likely to find a policeman with a firearm.
While he was trying to get the occupants to give him the firearm(s) the latter moved in such a manner that he thought that a firearm was to be produced and that he would be shot. As a result thereof, he shot at the one occupant (deceased) who died as a result. He says that he did not want to kill the occupant. As it turned out, the deceased was a policeman armed with a firearm.
The deceased's brother, Andries Malaoh, was present during the incident and testified that the Applicant did not ask for any firearm but the Applicant's cohort sought the keys of the motor vehicle which was handed over to him.
He further says that the deceased was just shot and did not notice the deceased making any movement which would suggest that he intended to produce a weapon to resist whatever the Applicant was attempting. He also stated that the microphone was not hanging on the windscreen. It is usual for these to be under the dash board. This was not an exception and it was also under the dash board - unable to be seen from outside unless one was looking through the side window while almost against the motor vehicle.
The Applicant said that after the shooting, they ran away because of the attention drawn to the incident especially from two private security guards who were clearly in possession of firearms.
He had difficulty explaining why, if they were looking for firearms, they did not try to get those from the nearby security guards. Nor was he convincing in saying that he did not do so because there were two of them.
His allegation that because of the microphone on the windscreen he knew the unmarked motor vehicle to be a police vehicle from which he could get a firearm is in our opinion improbable. One would expect him to have avoided the police at that time. It seems he did not know the deceased was a policeman.
Furthermore, it is improbable that he could see the microphone from a distance. Therefore he did not approach the motor vehicle because he thought it to be that of a policeman.
This, together with the evidence of Andries, brings into sharp focus the question of whether in fact the operations were of a political nature. We have immense doubt that it was. Consequently, the issue of whether he has made full disclosure as is required by the Act has also to be seriously doubted.
The Applicant has been far from convincing to say the least.
The Act provides that amnesty shall be granted if the act as defined for which amnesty is sought was motivated for political reasons and furthermore if a full disclosure relating to the commission of the Act was made.
We are not satisfied at all that either of the requirements of the Act have been complied with.
In the result, the application for amnesty is
REFUSED: .
SIGNED ON THE 1ST JUNE 1999.
