DECISION
The applicant Nqaba Daniel Xulu applies for amnesty in respect of the murder of one policeman a certain Daniel Khoza. He applies in terms of Act 34 of 1995 as amended (hereinafter referred to as "the Act")
The incident which gave rise to the above application took place on the 11 January 1993 at Pholosong Hospital, at Tsakane in the district of Brakpan. The applicant stated that he was a Pan Africanist Congress (PAC) member as well as a Section commander of its military wing known as APLA.
He stated that during or about the 11 January 1993 he was given an order by one Jabu Radebe, who was a Regional Commander of APLA to go and rescue a certain Makhosini Nkosi. Makhosini Nkosi had been a member of his Unit. Makhosini Nkosi and other members of the unit had been involved in an operation where he was shot, wounded and arrested by the police. As a consequence of this he was detained in Pholosong hospital under police guard. The applicant and his comrades namely Marcus Molopo and Patrick Ngwenya (both deceased) decided to obtain police uniforms and took some arms in order to be able to carry out their mission of rescuing Makhosini Nkosi.
They entered the hospital and found Makhosini chained to the bed. As the applicant was trying to unchain Makhosini, one of the policemen entered through a sliding door. Shortly thereafter shot were fired by one of his comrades. He does not know who shot but the result was that a policeman was shot and killed. The applicant and his comrades then left the ward with Makhosini and transported him to Soweto.
The applicant was then arrested and charged with murder. He was found guilty and sentenced to twenty years imprisonment of which half was suspended for a period of five years on condition that he was not found guilty of murder or attempted murder committed during the period of suspension. This trial was held in the Springs Supreme Court under case number cc 87/95.
This application was opposed by the victim’s family. The brother of the deceased testified that the main basis of the objection was the fact that his brother had been killed whilst he was at work. It can be accepted that this contention does not take the victims case any further as he is not disputing that the offence was politically motivated or that the applicant has not made a full disclosure.
The Act requires that amnesty shall be granted if the Committee is satisfied that the formalities of the Act have been complied with and provided that the offences for which amnesty is sought were committed for political motives and that full disclosure regarding the commission of the offences has been made.
At the outset we wish to emphasise that we approach this application on the basis of the evidence placed before us. In this application we are satisfied that the formalities have been fulfilled. We are also satisfied that the offence was committed with a political motive and that the requirements of full disclosure as envisaged by the Act have been complied with by the applicant. In the result the amnesty application of Nqaba Daniel Xulu in respect of murder of Daniel Khoza on 11 January 1993 is GRANTED.
It is recommended that Josephine Khoza the deceased’s wife be declared a victim. It is further recommended the t the deceased’s children Eric born 1982. Portia born 1984 and Sesi born 1989 also be declared to be victims.
They are accordingly being referred to the Committee on Reparation and Rehabilitation in terms of Section 22(1) of the Act.
Signed at Cape Town on this the 13 day of September 1999
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JUDGE R. PILLAY
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ADV. S. SIGODI
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MR W. MALAN
