DECISION
The Applicant applies for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act") as amended. The acts applied for relate to an incident that occurred in Johannesburg on the 28th March 1990, when the Fox Street branch of Nedbank was robbed, followed by a shoot-out with the police. Applicant was charged with and convicted of:
1. one count of armed robbery with aggravating circumstances; and
2. one count of attempted murder.
Applicant was sentenced to a fourteen year term of imprisonment for the first count, and a five year term of imprisonment in respect of the second count. As these were to run concurrently, the effective term of imprisonment was 14 years.
He noted an appeal in respect of both conviction and sentence, which appeal was dismissed. In 1994 he applied for indemnity, but when that process was substituted with the TRC's amnesty process, that application was re-submitted to the Amnesty Committee. He is presently on bail pending the finalisation of his amnesty application.
A SUMMARY OF THE EVIDENCE
Applicant's oral testimony was supplemented by affidavits filed by members of the leadership of the Pan Africanist Congress ("PAC") and its military wing, APLA viz. Johnson Mlambo and Barney Muntu Hlatshwayo. Applicant testified that he is a member of the PAC, having joined this organisation in 1974 while it was still a banned organisation in this country. Prior to the incident he seeks amnesty for, Applicant was detained twice, once in 1975 and then again in 1976 when he was imprisoned at Robben Island. On his release in 1986, he once again participated in the activities of the PAC. In 1990, a colleague, Vincent Mama, who at the time was the internal national co-ordinator of the PAC, approached Applicant. He sought Applicant's assistance in carrying out various fund-raising operations.
Applicant explained that at the time of the incident, he was a member of the logistics unit. The proposal Vincent Mama put to him concerned an operation by the repossession unit. As a result he was rather reluctant to render assistance, particularly as he had a fairly high profile, nationally and internationally, in the PAC. Applicant referred to this as a reluctance of ego, as it really amounted to a concern about the consequences for himself should this operation go wrong. In the interests of the organisation, however, he put his personal concerns aside to assist the repossession unit in the proposed operation.
In his testimony, Applicant further explained that Vincent Mama had discussed the operation fully with his superior, Letlapa Mphahlela, then stationed in Zimbabwe. The operation was to rob the Simmonds Street branch of Nedbank. Applicant's specific role in this operation was to be limited to the driving of the motor vehicle that was to convey the operatives to and from the bank. Applicant testified that he understood and knew, and indeed had the bona fide belief that such operations were directed at raising funds for APLA. These funds were needed in order that they may be able to pursue their armed struggle or such other objectives of APLA and/or the PAC as would be reasonably necessary to bring about the termination of racial oppression and exploitation in various forms. Applicant was made to understand that all of the monies that were to accrue from the operation would be to the benefit of the organisation and not for personal gain. He supported the objectives of his organisation and took the view that it was proper and correct that he should support the fund-raising operation referred to.
Banks, Applicant explained, were viewed as a legitimate target as were the police and the military forces. Nedbank in particular was targeted because it was known to be operating with the state security forces in diverting monies destined for liberation movements and their various allies. Further, this bank had indicated a bias against opening accounts for persons of whose political affiliation it did not approve. These and other factors placed Nedbank in the firing line of operatives of the liberation movements.
Vincent Mama told him who else would be involved. There were six other operatives involved in this operation, including Mama, Moss Morapapa, and two other operatives identified only as Mokgwathi and Vusi. The date set for the operation was the 28th March 1990. The motor vehicle that Applicant was to drive was parked at the Johannesburg Sun Hotel and on the morning of the operation, after reconnoitring the target bank, Applicant and Mama drove to the hotel to collect the motor vehicle. Thereafter they drove to the spot where the other operatives were waiting to be collected. Applicant conveyed these operatives to the bank, and parked at a convenient pick-up point. The operatives went into the bank, and emerged after a while, carrying a money-bag. They boarded the motor vehicle and drove down Marshall Street as planned. While so doing, the police suddenly approached from the opposite direction, firing on the occupants of the motor vehicle that Applicant was driving. Applicant was forced by the traffic conditions to stop his vehicle. All of the occupants alighted and ran off. Applicant and another operative were shot and seriously injured. As a result of this, Applicant spent just over six months in hospital, recovering from his injuries.
At his trial Applicant denied that this was an APLA operation. Finally, Applicant testified that it appeared that the police had prior knowledge of the robbery operation.
CONCLUSION
It is common cause that Applicant was a member of the PAC at the time of this incident. He was on loan from the logistics unit of APLA, where he held a fairly high profile position. This incident occurred in the course of the conflicts of the past as required by the Act.
In his testimony Applicant set out the objectives of the fund-raising operations of the PAC. Its military wing, APLA, was responsible for executing these operations. This particular operation was authorised by the PAC leadership. As stated by Hlatshwayo in his affidavit, the entire object and purpose of the fund-raising project was to achieve the political objective of terminating or overthrowing the racist minority rule in this country in order to usher in a democratic order. Applicant's acts thus fall squarely within the ambit of the Act.
The Committee is satisfied that the Applicant has complied with all the requirements of the Act. He acted with the requisite political objective and has made full disclosure of all the material facts relating to his application as required by Section 20(1) of the Act.
Amnesty is accordingly GRANTED to Applicant in respect of the robbery of Nedbank on the 28th March 1990 as set out above and for the attempted murder of Theodore Pero during the course of the shoot-out that ensued when the police tried to apprehend the Applicant and the other operatives.
In our opinion, Mr Theodore Pero, is a victim in relation to the said act and the matter is referred to the Committee on Reparation and Rehabilitation for consideration in terms of Section 22(1) of the Act.
DATED at
: this
: day of
: 1999.
JUDGE DENZIL POTGIETER
ADV. L. GCABASHE
DR. W. TSOTSI
PANEL: Judge D. Potgieter; Adv. L. Gcabashe; Dr. W. Tsotsi
EVIDENCE LEADER: Adv. Andre Steenkamp
VENUE & DATE: 21 - 25 June 1999
Jiss Centre
Mayfair
JOHANNESBURG
ATTORNEY FOR APPLICANT: Mr MBANDAZAYO
2nd Floor, Clark House
60 Termiuus Street
EAST LONDON
Tel. (0431) 20524
Fax: (0431) 26056
