DECISION
The applicant is KHANYISO ARTHUR MALGAS. He applies for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act, No 34 of 1995 ("the Act) in respect of the following offences :
1. The murder of Koos de Jager;
2. The murder of Marike Louisa De Jager;
3. Housebreaking with intent to rob the De Jagers.
4. Robbery with aggravating circumstances and theft of an assortment of household items, namely :
(a) One .22 rifle;
(b) One pellet gun;
(c) One long knife;
(d) One bayonet;
(e) A sum of R180-00 in cash;
(f) One portable radio;
(g) Two torches;
(h) One thermos flask;
(i) Assorted linen and foodstuffs;
(j) One 1976 Datsun Bakkie bearing registration letters and numbers CB8978.
5. Malicious Damage to Property by setting on fire a Datsun Bakkie bearing registration letters and numbers CB8978, the property of the De Jagers.
It is significant to mention that although the Applicant fully agreed with the taking of the aforementioned items, he did not personally take them.
Initially there were two Applicants in this matter. At the hearing the second Applicant, MXOLISI FLENI SOKHIYA (AM1593/96), suddenly withdrew his application and the present Applicant was the only witness to testify. The application is unopposed.
At the time of the commission of these offences in 1985 the Applicant, who is now a Lieutenant in the South African National Defence force, was a member of the Addo Youth Congress ("AYC"). That organisation was an affiliate of the United Democratic Front ("UDF") aligned to the African National congress ("ANC"). The deceased were an elderly couple residing on the Farm Enhoek at Addo, Kirkwood district.
The evidence of the Applicant can be summarised as follows. In the evening of 17 June 1985 a group of about 12 AYC members, of which Applicant was one, held a meeting where it was decided that members of the white local farming community should be raided and killed, to put pressure on the previous government to concede to the demand of the black majority for democracy in the country. It was believed by the AYC members that if they killed farmers in the area, and ransack their houses and take whatever valuable items they found there, the government would positively react and start a dialogue with the leaders of the nationalist liberation movement, with the view to making a political settlement.
It was part of the plan that any firearms found there would;d be taken for use by comrades. At that stage there was already a number of Umkhonto weSizwe ("MK"), the military wing of the ANC, infiltrated into the area. the MK members trained the Applicant and some of the AYC members. On the day of the attack one of them, Mzukisi Alwan, had a firearm which had been supplied by the MK members.
It is not necessary to traverse all the evidence that was led regarding the modus operandi of the attack, save to say that Jackie was the leader of the group and all the members of the group, including the Applicant were armed with knives and sharp weapons. At the house some of them went inside, whilst the Applicant and three others kept watch outside. The windows of the house and everything inside was destroyed. Firearms, ammunition and household items were taken, including the Datsun Bakkie, which was taken to Mother well in Port Elizabeth, where it was subsequently burnt. The Applicant testified that after a while a group that had gone inside emerged and said they had killed the De Jagers. the Applicant did not personally participate in the actual killing but he associated himself with it and its political objectives.
The group that was inside reported that there was also a baby there and wanted to know what to do with her. The group deliberated and decided that the baby should not be killed. the Applicant was one of those who suggested that it should be left alone. They all left in the Bakkie and the items were given to an MK cadre who had infiltrated the area and generally had a close association with the AYC members. Jackie was driving the vehicles and on the way they had an accident. Many were injured. After the incident the AYC members were arrested and charged. Some were convicted and sentenced to death and Sokhiya who had been sentenced to a long term of imprisonment was released on parole in 12991. Two of them were sentenced to death and executed. The applicant fled the country with the help of MK members to join the ANC in exile. He received extensive military training there. He never stood trial for the offences. Applicant returned in 1994 and was integrated into the SANDF where he is now serving.
Considering the evidence as a whole, in particular the political context and the time during which the offences were committed, we are satisfied that the offences are acts associated with a political objective. The 1980's was a period of mass mobilisation in the country and many youths were caught up in the heat of the violent conflict and struggle. The Applicant has complied with the requirements of the Act and has given full disclosure about this incident. The Applicant and his group acted on the orders of the MK member who had been infiltrated into the area by the ANC to advance its cause of the armed struggle against the previous government and it perceived supporters. White farmers were amongst those identified as supporters of the erstwhile establishment.
There is no indication that the Applicant acted out of a personal grudge against the deceased. There is also no evidence that he personally benefitted from the operation. We are satisfied that he is entitled to amnesty.
Amnesty is GRANTED to the Applicant for all the offences.
The dependants of the deceased are declared victims in relation to the incident and are referred to the Rehabilitation and Reparation Committee for consideration in terms of Section 22 of the Act.
DATED AT CAPE TOWN THIS 13 DAY OF SEPTEMBER 1999
:: JUDGE DENZIL POTGIETER
:: DR W.M.TSOTS1
: ADV. N. SANDI
