DECISION
_____________________
The four applicants make application in respect of various offences for amnesty in terms of Act 34 of 1995 as amended (the Act). All of them were members of the African National Congress (ANC) and attached to its military wing Umkhonto weSizwe (MK). The latter was the operative military mechanism established to counter apartheid and all its institutions in whichever form.
The following is a list of relevant incidents which gave rise to the offences for which the applicants make application. The incidents took the form of attacks on:-
The "whites only" bus terminus at Germiston during July
1988 – One (1) count of Malicious damage to property;
The Benoni Wimpy Restaurant on 30 July 1988 – One (1)
count of murder, sixty six (66) counts of attempted murder
and one (1) count of arson;
The South African Police (SAP) barracks, MNISI Section,
in Katlehong in September 1988 – an undetermined number
of counts of attempted murder and one (1) count of arson.
The Railway line near Katlehong during September 1988 –
One (1) count of malicious damage to property;
The Electrical Sub Station near Katlehong during
September 1988 – One (1) count of arson.
The South African Police (SAP) barracks, Motsamai
Section, near the Lindela Hostel, Katlehong during October
1988 – One (1) count of arson;
The South African Police (SAP) outside the Lindela Hostel
during October 1988 – six (6) counts of attempted murder;
and
The Dawn Park Main Sewer Tank at Boksburg during
August 1989 – One (1) count of arson.
Tebogo Christopher Kebotlhale was the sub-regional commissar of MK in the East Rand at the time. He was authorised to issue instructions amongst the other powers which he had. He applies for amnesty for being involved in the planning and in some cases, the execution of the attacks on:
The bus terminus at Germiston – he planned the attack,
together with the other three (3) applicants, provided the
equipment for the attack and personally executed the attack
with Sigasa;
The Benoni Wimpy Restaurant – he was party to planning
this attack with the other applicants and provided the
explosives for the execution of the plan;
The SAP barracks, MNISI Section, Katlehong – he was
party to planning the attack with the other applicants and
provided the explosives used therein and personally
participated in the execution thereof with Ndlovu;
The Katlehong Railway line – he helped plan this attack
with Ndlovu and Sigasa, provided the explosives and
executed this attack with Ndlovu.
The Electrical Sub-station near Katlehong – he helped plan
this attack with the other applicants and provided the
explosives used therein:
The SAP barracks, Motsamai Section – he helped plan this
attack with the other applicants and provided the explosives
used therein:
The members on the SAP outside the Lindela Hostel – he
helped plan the attack with the other applicants and
provided the equipment to execute the attack; and
The Sewer Tank at Boksburg – he helped plan this.
Elfas Mabore Ndhlovu makes application because he was involved in the planning and in some cases the execution of the attacks on:
The bus terminus at Germiston – he helped plan the attack,
together with the other applicants;
The Benoni Wimpy Restaurant – he was party to planning
this attack and executed the attack himself;
The SAP barracks, MNISI Section, Katlehong – he helped
plan the attack and participated in the execution thereof;
The Katlehong Railway line – he helped plan the attack with
Kebotlhale and Sigasa and participated in the execution
thereof;
The Electrical Sub-station near Katlehong – he helped plan
the attack with the other applicants and participated in the
execution thereof;
The SAP barracks, Motsamai Section – he helped plan this
attack with the other applicants and participated in the
execution thereof;
The members on the SAP outside the Lindela Hostel – he
helped plan the attack with the other applicants and
participated in the execution thereof; and
The Sewer Tank at Boksburg – he was involved in the
planning of this attack.
Molwedi Mokoena, a trained MK member, applies for amnesty because he was involved in the following:
The attacks on:
the Electrical Sub-station near Katlehong – he helped plan the attack with the other applicants and articipated in the execution thereof;
the Sewer Tank at Boksburg – he helped plan this attack and participated in the execution thereof;
he helped plan the attacks on the:
Bus terminus at Germiston;
SAP barracks at MNISI Section, Katlehong;
SAP barracks at Motsamai Section, Katlehong;
SAP members outside the Lindela Hostel; and
Wimpy Restaurant at Benoni.
Phumuzi Ernest Sigasa was a trained MK operative and
Commander of the Regional Command structure, known as the "Johannes Nkosi Unit", in the Gauteng area. He testified that he was liable because he was involved in:
The planning and execution of the attacks on the:
Bus terminus at Germiston;
Sewer Tank at Boksburg;
SAP Barracks, Motsamai Section, near the Lindela Hostel; and
SAP members outside the Lindela Hostel.
The planning of the attacks on the:
Wimpy Restaurant at Benoni;
SAP Barracks MNISI Section, Katlehong;
Railway line near Katlehong; and
Electrical Sub-station near Katlehong.
The applicants testified that it was part of the MK strategy to destroy the apartheid operations on instructions and to attack those who operated them.
The South African Police was regarded as such a target. It was also a strategy to instil fear in the general public and as we understand, in particular, the white people so as to pressurise the government of the day into submission.
With regard to the offences for which amnesty is being sought, the applicants acted under the command of Sigasa. The plans were made within the political climate of the time. It follows therefore that these attacks fall within ambit of the Act. These offences were committed in order to signify the vulnerability of the apartheid system and to demonstrate the support for the anti-apartheid forces and the furtherance of the revolutionary armed propaganda.
The attack on the Wimpy Restaurant was based on information that the applicants had received. In brief, the information concerned the regular visits to that restaurant by the members of the South African Police who were attached to the Security Branch in Benoni. The decision to plant a bomb at the restaurant on a Saturday afternoon was based on the information that these policemen frequented the restaurant on Saturdays. This information that they relied upon was obtained through reconnaissance conducted in relation to and concerning the aforementioned policemen and the restaurant.
They relied on this information and in pursuance thereof, put their plan into operation. A bomb was then placed in the Wimpy Bar Restaurant at Benoni. Some time thereafter it exploded causing extensive damage, the death of a person and injuries to others.
The attack on the Wimpy Restaurant was based on the bona fide belief that certain members of the Security Police patronised the establishment on Saturdays. The police, in particular the Security Police, who were regarded as legitimate target were the actual targets that day and the applicants relied thereon and had a bona fide belief that they were carrying out a legitimate political attack.
In respect of the attack on the Wimpy Restaurant, Johannes Abraham Scheepers, Bietie Malope, Amanda Jan Elizabeth Clemson and Victor Serrano opposed the application. All of them declared their objection in one way or another, questioning the justification for injuring or the taking lives of innocent people who had nothing to do with the applicants complaints. Scheepers, in fact denied that the proposed targets of the bomb went to the restaurant as alleged by the applicants. However, he conceded that the information upon which the applicants relied indicated just that.
None of the objections nullified the allegations of the applicants, but rather tended, understandably so, to border on emotional considerations. Significantly it was not contended that the ANC policy was in any way flouted during this incident.
The attacks on the Railway line and the Electrical Transformer at Katlehong Railway station and the Sewer Tank at Boksburg were designed to cause damage to these structures, because they were both regarded as strategic mechanisms, the destruction of which was intended to adversely affect the apartheid machinery and cause serious embarrassment and inconvenience. More importantly, it was intended to instil fear within the public and lessen the confidence in the apartheid system. This was not disputed.
The Act provided that amnesty shall be granted, if the offence for which amnesty is sought is an act(s) associated with a political objective, if full disclosure regarding the commission of the offences is made and the formalities of the Act have been complied with by the applicant.
Considering the evidence as a whole, we are satisfied that all the applicants were operating under the political umbrella of the liberation movement countering apartheid, namely the ANC.
The offences were clearly directed at enhancing the position of the anti-apartheid forces, and in this instance, the cause of the ANC.
There is nothing to distract the evidence of the applicants regarding the actual facts related to the commission of the offences.
We are satisfied the applicants have complied with the requirements of the Act. In the result amnesty is GRANTED to each applicant in respect of the following offences:
one (1) count of malicious damage to property (the attack on the "whites only" bus terminus at Germiston during July 1988);
one (1) count of murder, sixty six (66) counts of attempted murder and one (1) count of Arson (the attack on the Benoni Wimpy Restaurant on or about 30 July 1988);
an undetermined number of counts of attempted murder and one (1) count of Arson (the attack on the South African Police (SAP) barracks, MNISI Section, in Katlehong in September 1988);
one (1) count of malicious damage to property (the attack on the Railway line near Katlehong during September 1988);
one (1) count of arson (the attack on the Electrical Sub-station near Katlehong during September 1988);
one (1) count of arson (the attack on the South African Police (SAP) barrack, Motsamai Section, near the Lindela Hostel, Katlehong during October 1988);
six (6) counts of attempted murder (the attack on the South African Police (SAP) outside the Lindela Hostel during October 1988);
one (1) count of arson (the attack on the Dawn Park Main Sewer Tank at Boksburg during August 1989).
We are of the opinion that the relatives of the deceased and the inured persons in relation to the aforesaid incidents are victims as defined in the Act and hereby recommend that they be referred to the Committee on Reparation and Rehabilitation for consideration as such in terms of Section 26 of the Act.
Signed on the ¼¼¼. day of ¼¼¼¼¼¼¼¼¼¼.. 1999.
____________________JUDGE R. PILLAY
____________________JUDGE S KHAMPEPE
_____________________ADV. NJ MOTATA
