DECISION
The applicant applies for amnesty in respect of the murders of Samuel Sipho Hlongwana and Jerome Khuzwayo, the attempted murder of Zeblon Dube and robbery with aggravating circumstances.
All of these offences were committed on or about 23 March 1990 at or near Ntabhuka Store in the district of Ndwedwe.
The applicant at the time of the commission of the offences, was a member of the KwaZulu Police. He was stationed at KwaMashu and held the rank of constable. He was not a member of any political organisation or movement but states that he was a supporter of the African National Congress (the ANC).
He testified at the hearing of this matter that he resided at M Section, KwaMashu, which Section was predominantly inhabited by ANC supporters. Political violence was rife in the area and the ANC supporters in M Section were constantly subjected to attacks from supporters of the Inkatha Freedom Party (the IFP).
The ANC supporters organised themselves into Self Defence Units and the applicant assisted them from time to time, providing them with ammunition. He resolved to assist them further by providing them with firearms.
While thinking of a way to acquire firearms, the applicant states that he was approached by a colleague, one sergeant J J Mdluli, who was also wanting to acquire firearms in order to assist ANC supporters from his area. Mdluli informed the applicant that he had had a discussion with constable S Luthuli, a member of the KwaZulu Police who was stationed at Ndwedwe, who told him that his duties included escorting a pension pay-out team and that he planned to rob money at a pension pay-out point. The applicant and Mdluli agreed between themselves to participate in the robbery but only with the objective of obtaining firearms from the police escort. They agreed not to tell Luthuli that it was not their intention to steal money.
It was then planned to carry out the robbery on Friday 23 March 1990. On that day pensions would be paid out at three points, namely, Mkhabela Store, Msunduze Store and Ntaphuka store. The applicant states that they planned to commit the robbery at the last pay point, Ntuphuka Store, because by then the escort would be tired and off-guard as nothing had happened at the previous two pay points.
The gang who participated in the robbery consisted of the applicant, Mdluli, Luthuli, constable D Dlamini, one Nkululeko, who was an acquaintance of the applicant from KwaMashu and one Bheki, a friend of Nkululeka. Constable M Khambule was meant to be part of the gang but he withdrew at the last moment because of an earache.
On the day in question they proceeded in two vehicles to Ndwedwe. They went to the first two pay points but took no action. At Ntaphuka Store the applicant and Bheki took position next to the shop and kept guard while Mdluli and Nkululeko advanced towards the police escorts with guns pointing. The police started shooting and both Mdluli and Nkululeko returned fire. Two policemen, namely Samuel Sipho Hlongwana and Jerome Khuzwayo, were killed and a civilian, Zeblon Dube, was injured in the shooting. The applicant and his companions then picked up three HMC submachine guns and a shotgun, which had been dropped by members of the police escort, and also took a steel trunk before fleeing from the scene.
When the steel trunk was later opened it was found to be empty. One of the HMC submachine guns was given to Dlamini and the other three firearms were given to Nkululeko and Bheki. Both Nkululeko and Bheki absconded after the incident and were never again seen by the applicant. All of the stolen firearms were later recovered by the police.
The applicant was arrested a few days after the incident. He, together with Mdluli and Dlamini, was, after pleading not guilty to all the charges, convicted and sentenced to an effective term of imprisonment of eighteen years.
The applicant's evidence relating to his motivation in participating in the robbery is not corroborated. He has never been a member of a political organisation, he was not ordered or instructed to participate in the robbery, he was unable to say who the commander of the local self defence unit was and stated that such was an informal structure. He never discussed the planned robbery with any senior person in the ANC and testified that the planning thereof was confined to himself and certain colleagues of his in the KwaZulu police.
It is a fact that the robbers only succeeded in stealing firearms and an empty trunk, which fact, we believe, the applicant is now trying to use to his advantage. It is, in our view, highly improbable that the applicant and all his fellow gang members, save for Luthuli, would participate in such a high risk venture merely in the hope of obtaining some firearms. The applicant's explanation for them taking the steel trunk, namely, that they thought that it contained firearms, is unimpressive and is rejected as being false. One would have expected them to have included in their planning the whereabouts of any arms that may have been stored by the police escort- they did, after all, have one of the escorts as a member of their gang. There was no basis whatsoever for them to believe that the trunk contained firearms and it is evident from the judgment handed down at the applicant's trial that the trunk which was kept in the back of a vehicle, was used to keep review forms and fingerprint pads which were used in regard to the pensions. The probabilities are that the trunk was stolen in the mistaken believe that it contained money.
We are not satisfied that the crimes committed by the applicant were acts associated with a political objective as contemplated by the provisions of Section 20 of the Promotion of National Unity and Reconciliation Act. No 34 of 1995.
We are also not satisfied that the applicant have made a full disclosure of all relevant facts.
In the result, the applicant's application for amnesty is REFUSED.
DATED AT CAPE TOWN THIS 5TH DAY OF APRIL 2000.
JUDGE S. MILLER
MR J B SIBANYONI
MR I LAX
