DECISION
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INTRODUCTION
These are applications for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and reconciliation Act, No. 34 of 1995 ("the Act"). The applications relate to incidents which occurred in Stutterheim in the Eastern Cape during the period 1990 - 1991. Applicants were all arraigned in the Eastern Cape Division of the then Supreme Court on a number of charges resulting from these incidents and were sentenced to varying terms of direct imprisonment.
It is necessary to set out a summary of the situation of political conflict which plagued Stutterheim for a number of years as was set forth in the testimony of Jimmy Nokawusana. Like most parts of South Africa at the time, Stutterheim was affected by the wave of political protest unleashed by the extra-parliamentary political movements under the guidance of the United Democratic Front ("UDF") during the middle eighties. Pursuant to a national call for a consumer boycott during 1985, the community in the township of Kabusi in Stutterheim embarked upon a boycott of all White-owned shops. The youth was deployed to police and enforce the consumer boycott. This led to the politicisation of many members of the youth in Kabusi township. The youth embarked upon setting up roadblocks controlling the access from the town into the township. The youth also used the roadblocks to monitor the situation of township residents attempting to shop in the White-owned shops in the town of Stutterheim. This situation led to direct confrontation between the youth and members of the security forces who were intent upon removing the control exercised by the youth over Kabusi township. This resulted in a general situation of unrest leading to attacks upon and necklacing of impimpis or police informers, the teargassing and shooting of youths and the stoning and petrol bombing of the security forces. Many of the leadership figures in Kabusi township were arrested and detained during this period resulting in great upheaval in the community. The situation, however, improved and the political conflict abated during the period 1987 to 1988. During this period most of the leaders were detained and the security forces had managed to suppress the political unrest.
During 1989 the UDF leadership called a mass meeting in Kabusi township which was attended by most of the residents. This meeting was addressed by prominent and high-profiled political leaders. The meeting discussed the very many grievances of the inhabitants of Kabusi township at the time particularly the question of decent accommodation for the very many homeless people in the community. The meeting mandated a delegation to meet with the mayor of Stutterheim in an attempt to have these grievances addressed. At a subsequent community meeting, the delegation reported back that their discussions with the mayor had proved to be fruitless and that the mayor had adopted an intransigent attitude during their discussions. The meeting then resolved to embark upon another consumer boycott of White-owned businesses.
In the course of the implementation and enforcement of the 1989 consumer boycott, the conflict between the youth and the security forces resumed. In the course of this conflict youths were shot and arrested and three soldiers were killed. The farmers occupying the farms in Stutterheim, particularly those farms neighbouring the townships, were regarded by the community of Kabusi township as siding with the security forces in the course of this conflict. It was believed that the farmers were acting as the "eyes and ears" of the security forces and were reporting on the activities in the township from the proximity of their farms. Some farmers formed part of the commando units and others were working as police reservists. In some instances youths who had fled from the township onto the neighbouring farms were detained by farmers and handed over to the security forces. All of these factors placed the farmers firmly in the camp of the security forces in the eyes of the Kabusi community.
During December 1989 a watershed meeting was called by the UDF in Kabusi township. This meeting was attended by high-profiled UDF and local leaders. The meeting was held in the Matomela church hall in the township. The hall was unable to accommodate the masses who had turned up for the meeting. Many people were compelled to congregate outside of the hall while the meeting was in progress. At one point the security forces arrived and ordered those congregated at the hall to disperse. When the people failed to do so, the security forces attacked the meeting, shooting teargas and ammunition at the people. This led to pandemonium and to many people including the elderly being injured. The injured were refused admission to the Stutterheim hospital and many of them had to seek medical assistance in neighbouring towns. All of the Applicants attended this meeting and were deeply angered by this negative experience. They were all still relatively young at the time.
This incident emphasised the vulnerability of the community to armed action by the security forces. In the wake of the incident at the church hall, a meeting was convened by the political leadership. At this meeting, the Kabusi community resolved that the farmers should be warned to vacate their farms. The effect of the community’s decision was that action should be taken to remove farmers from the farms and also to disarm them. This would have served the objectives of removing the support given to the security forces by the farmers, making their land available for housing the homeless and providing arms to be utilised in the conflict with the security forces.
At all material times, the Applicants were members of the youth in Kabusi township supporting the African National Congress ("ANC") Youth League and the UDF which was affiliated to the ANC. All of them participated in the actions of the youth in implementing and enforcing the 1989 consumer boycott as well as the conflicts with the security forces. They all participated in the roadblocks which acted as the central point for all of the activities of the youth at the time.
In consequence of their participation in the activities of the youth, the Applicants became involved in the various incidents which form the subject-matter of these amnesty applications and which occurred in the course of the youth implementing the decision of the community to act against the farmers.
We now proceed to deal with the various incidents separately.
THE ATTACK UPON ALBIN HANSEL
This incident occurred on 31 January 1990 at Greenlands Farm in the district of Stutterheim. The victim, Mr Albin Hansel, was an elderly farmer who was attacked on his farm during the night by a large group of youth including all of the Applicants save for Melumuzi Nokawusana. The decision to attack Mr Hansel was taken at the roadblock. The circumstances of the attack were briefly that the group forcibly entered the house of Mr Hansel, assaulted him and robbed him of various items including a shotgun and ammunition. Although the Applicants did not see all of the items stolen from the house of Mr Hansel, it was common cause that the items listed in the original charge sheet which forms part of the papers before us, were in fact stolen from Mr Hansel.
Applicants indicated that although it was not their original intention they were compelled to assault Mr Hansel in order to force him to disclose the whereabouts of his firearms, which he eventually did. The firearm and ammunition were handed over to the commanders at the roadblock and it was utilised in the activities of the youth as well as in some of the subsequent incidents forming the subject-matter of this amnesty application.
Having carefully considered the matter, we are satisfied that the attack upon Mr Hansel was in execution of the decision taken by the community to act against farmers. The robbery of Mr Hansel is clearly closely associated with this objective which was related to the political conflict in Stutterheim. We are accordingly satisfied that the attack upon Mr Hansel constitutes an act associated with a political objective as envisaged in the Act and that the Applicants have made a full disclosure of all relevant facts. We are also satisfied that the applications comply with all of the requirements of the Act and amnesty is accordingly GRANTED to the relevant Applicants in respect of the following offences committed on 31 January 1990 at Greenlands Farm, Stutterheim:
Housebreaking with the intent to rob and robbery;
Malicious injury to property.
ATTACK UPON ERICH RALPH GUDMANZ KOBUS
This incident involves all of the Applicants and occurred during or about the period 12-13 February 1990 at Sunrise Farm, Stutterheim. The victim, Mr Kobus, was a 74 year old farmer who was attacked on his farm by a large group of youths including the Applicants. The circumstances of the attack are briefly set out below.
The group went to the farm of Mr Kobus in search of firearms and in execution of the community’s decision to act against farmers. On the way to the homestead, the group called at the servants quarters in order to get directions to the farmhouse. They also borrowed pliers from the servants which was used to cut the telephone wires prior to launching the attack. The group knocked on the door but Mr Kobus refused them entry into the house, barricading himself instead inside his bedroom. He started firing shots at the group. One of the members of the group, armed with the firearm that was robbed from Mr Hansel as set out above, fired one shot into the bedroom in an attempt to intimidate Mr Kobus and force him to surrender. This shot struck Mr Kobus in the face. The group attempted over a prolonged period to gain entry into the bedroom, but Mr Kobus managed to ward off the attackers. After the group attempted to set the house alight, they fled from the scene empty-handed.
Mr Kobus was hospitalised as a result of the gunshot injury to his face and died a few days after the attack from a cause unrelated to the injury.
Having carefully considered the matter, we are satisfied for the reasons more fully set out under the Hansel incident above, that the applications comply with all of the requirements of the Act.
Amnesty is accordingly GRANTED to all of the Applicants in respect of the following offences committed during the period 12-13 February 1990 at Sunrise Farm, Stutterheim:
Attempted murder,
Housebreaking with the intent to rob;
Malicious injury to property.
ATTACKS ON JOE SENTI AND JOHANNES DIDRIK PRETORIUS
These incidents involve all of the Applicants and occurred on 15 February 1990 at Spes Bona Farm, Stutterheim. Mr Senti was a farm labourer and Mr Pretorius the farmer on the said farm.
The victims were attacked on the farm by a large number of youths including the Applicants. The facts are briefly that the youths proceeded to the farm during the course of the night and first called at the labourers’ cottages since they had no idea where the farmhouse was situated. They approached the cottage of Mr Senti and knocked on the door. Mr Senti was at first hesitant to open but later did so. When he saw the group, he immediately closed the door. Mziyanda Ntonga who was armed, fired a shot at the door, hitting Mr Senti in the hand. The door was opened and members of the group entered the house, apologised to Mr Senti and explained their mission to Mr Senti and his wife. They persuaded Mr Senti’s wife to accompany them to the farmhouse in order to get the farmer to arrange for Mr Senti to get medical attention. They also approached the neighbour of Mr Senti in order to accompany them to the farmhouse, which the neighbour agreed to do. When they reached the farmhouse, the instructed Mrs Senti to call the farmer, which she did. Mr Pretorius came out of the farmhouse with his dogs. In fear of being attacked, Ntonga who was still armed with the firearm, fired one shot in the direction of Mr Pretorius who fell to the ground. Melumuzi Nokawusana then assaulted Mr Pretorius with a stick and compelled him to get up and take them to his firearms. When they reached the farmhouse, a police van arrived on the scene and the group of attackers fled.
Having carefully considered the matter, we are satisfied for the reasons more fully set out under the previous two incidents, that the applications comply with all of the requirements of the Act. Amnesty is accordingly GRANTED to all of the Applicants in respect of the following offences committed on 15 February 1990 at Spes Bona Farm, Stutterheim:
Attempted murder of Johannes Didrik Pretorius;
Housebreaking with the intent to commit an unknown offence in respect of the house of Joe Senti;
Malicious injury to property in respect of the house of Joe Senti;
Malicious injury to property in regard to the house of Johannes Didrik Pretorius.
THE ATTACK ON ANNE ELIZABETH KLACKERS
This incident occurred on 19 February 1990 at End Well Farm, Stutterheim and it involved Jimmy Nokawusana, Mziyanda Ntonga and Melumuzi Nokawusana. The applications in respect of this incident were opposed by the victim, Mrs Klackers, who also testified at the hearing. We proceed to set out a summary of the respective versions of Applicants and Mrs Klackers.
On the version of the Applicants, they were on duty at the roadblock in the township when they were informed about a shop on one of the farms in the vicinity that was trading in apparent defiance of the consumer boycott. The Applicants were then ordered by the youths at the roadblock to approach the shop owner and instruct the latter not to trade contrary to the terms of the consumer boycott. They proceeded to the shop sometime during the course of the day and confronted the shop owner Mrs Klackers. She reached under her counter which led Applicants to believe that she was trying to take out a firearm. In an attempt to disarm her, Jimmy Nokawusana engaged in a scuffle with her. While they were still inside the shop Applicants were attacked by the dogs on the farm and eventually fled when the son of Mrs Klackers appeared on the scene. They denied either attempting to or having robbed the shop of money or any other items.
The version of Mrs Klackers is wholly contradictory to that of the Applicants. In short, her version amounts to the fact that she was accosted by three men soon after having reopened her shop after the lunch break. One of them attacked and severely assaulted her in an attempt to force her to hand over the money in the shop. A second one of the attackers advanced upon her with a knife whilst the third one was keeping watch at the door. The attackers fled with some cash which she had handed over to one of them as well as a few other items which they had stolen from the shop. The version of Mrs Klackers was not attacked in cross-examination. At the conclusion of the proceedings, Mr Kincade, who appeared on behalf of the Applicants, for all intents and purposes conceded that there is no merit in the applications insofar as this incident is concerned. In our view there is no basis for rejecting the version of Mrs Klackers and the concession by Mr Kincade is a proper one.
In all the circumstances we are not satisfied that the Applicants have made a full disclosure of all relevant facts nor that the attack upon Mrs Klackers constitutes an act associated with a political objective. The applications of the relevant Applicants are accordingly REFUSED.
ATTACK ON RACHEL EDITH MARILLIER
This incident occurred on 7 March 1990 at Bush View Farm, Stutterheim and in involved Jimmy Nokawusana and Mziyanda Ntonga. In the course of this incident Mrs Marillier, who was farming on Bush View Farm, was attacked by a group of approximately 40 youths including the two Applicants.
The facts are briefly that the group travelled with a kombi to the farm where they arrived during the course of the night. As the group congregated in the yard of the farmhouse, someone opened the front door letting the dogs out. Jimmy Nokawusana, who was armed with the shotgun robbed from Mr Hansel, fired a shot in the direction of the door which hit Mrs Marillier. The group then entered the house and removed firearms and a large quantity of ammunition from the house. It appears from the original charge sheet that a number of other items were also stolen from the house, although the Applicants had no knowledge of these items having been taken.
Similar to the case in some of the other incidents, the attack was launched in execution of the decision of the Kabusi community to attack the farmers. There is no evidence controverting the version of Applicants that they were indeed acting pursuant to that decision. The attack is directly related to this decision and the robbery closely associated with the objective being pursued.
For the reasons more fully set out under the Hansel, Kobus and Pretorius incidents above, we are satisfied that the applications comply with all of the requirements of the Act. In the circumstances amnesty is GRANTED to the relevant Applicants in respect of the following offences committed on 7 March 1990 at Bush View Farm, Stutterheim:
Attempted murder;
Housebreaking with the intent to rob and robbery.
GENERAL CONVICTIONS
Insofar as the Applicants are concerned who have been granted amnesty in respect of the incidents of Hansel, Kobus, Pretorius and Marillier they are GRANTED amnesty in respect of the following general offences:
Unlawful possession of firearms;
Unlawful possession of ammunition.
VICTIMS
In our opinion the persons listed in the Annexure hereto are victims in relation to the incidents mentioned therein and are accordingly referred for consideration in terms of the provisions of Section 22 of the Act.
CONCLUSION
In summary the respective Applicants are GRANTED amnesty as set out below:
RANDILE BHAYI
The following offences committed on 31 January 1990 at Greenlands Farm, Stutterheim:
housebreaking with the intent to rob and robbery;
malicious injury to property.
The following offences committed during the period 12-13 February 1990 at Sunrise Farm, Stutterheim:attempted murder of Erich Ralph Gudmanz Kobus;
housebreaking with intent to rob;
malicious injury to property;
The following offences committed on 15 February 1990 at Spes Bona Farm, Stutterheim:
attempted murder of Johannes Didrik Pretorius;
housebreaking with the intent to commit an unknown offence in respect of the house of Joe Senti;
malicious injury to property in respect of the house of Johannes Didrik Pretorius; Unlawful possession of firearms;
Unlawful possession of ammunition.
JIMMY NOKAWUSANA
The following offences committed on 31 January 1990 at Greenlands Farm, Stutterheim:
housebreaking with the intent to rob and robbery;
malicious injury to property;
The following offences committed during the period 12-13 February 1990 at Sunrise Farm, Stutterheim:
attempted murder of Erich Ralph Gudmanz Kobus;
housebreaking with intent to rob;
malicious injury to property;
The following offences committed on 15 February 1990 at Spes Bona Farm, Stutterheim:
attempted murder of Johannes Didrik Pretorius;
housebreaking with the intent to commit an unknown
offence in respect of the house of Joe Senti;
malicious injury to property in respect of the house of Joe Senti;
malicious injury to property in respect of the house of Johannes Didrik Pretorius;
The following offences committed on 7 March 1990 at Bush View Farm, Stutterheim:
attempted murder of Rachel Edith Marillier;
housebreaking with the intent to rob and robbery;
Unlawful possession of firearms;
Unlawful possession of ammunition.
MZIYANDA NTONGA
The following offences committed on 31 January 1990 at Greenlands Farm, Stutterheim:
housebreaking with the intent to rob and robbery;
malicious injury to property;
The following offences committed during the period 12 - 13 February 1990 at Sunrise Farm, Stutterheim:
attempted murder of Erich Ralph Gudmanz Kobus;
housebreaking with intent to rob;
malicious injury to property;
The following offences committed on 15 February 1990 at Spes Bona Farm, Stutterheim
attempted murder of Johannes Didrik Pretorius;
housebreaking with the intent to commit an unknown offence in respect of the house of Joe Senti;
malicious injury to property in respect of the house of Joe Senti;
malicious injury to property in respect of the house of Johannes Didrik Pretorius;
The following offences committed on 7 March 1990 at Bush View Farm, Stutterheim:
attempted murder of Rachel Edith Marillier;
housebreaking with the intent to rob and robbery;
unlawful possession of firearms;
unlawful possession of ammunition.
MELUMUZI NOKAWUSANA
The following offences committed during the period 12 - 13 February 1990 at Sunrise Farm, Stutterheim:
attempted murder of Erich Ralph Gudmanz Kobus;
housebreaking with intent to rob;
malicious injury to property;
The following offences committed on 15 February 1990 at Spes Bona Farm, Stutterheim:
attempted murder of Johannes Didrik Pretorius;
housebreaking with the intent to commit an unknown offence in respect of the house of Joe Senti;
malicious injury to property in respect of the house of Joe Senti;
malicious injury to property in respect of the house of Johannes Didrik Pretorius;
Unlawful possession of firearms;
Unlawful possession of ammunition.
BONAKELE BHAYI
The following offences committed on 31 January 1990 at Greenlands Farm, Stutterheim:
housebreaking with the intent to rob and robbery;
malicious injury to property;
The following offences committed during the period 12 - 13 February 1990 at Sunrise Farm, Stutterheim:
attempted murder of Erich Ralph Gudmanz Kobus;
housebreaking with intent to rob;
malicious injury to property;
The following offences committed on 15 February 1990 at Spes Bona Farm, Stutterheim:
attempted murder of Johannes Didrik Pretorius;
housebreaking with the intent to commit an unknown offence in respect of the house of Joe Senti;
malicious injury to property in respect of the house of Joe Senti;
malicious injury to property in respect of the house of Johannes Didrik Pretorius;
Unlawful possession of firearms;
Unlawful possession of ammunition.
DATED at .............this...........day of .............1999.
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Judge DENZIL POTGIETER
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Adv. F. BOSMAN
