DECISION
The applicant applied for amnesty in respect of the following offences:
1. The robbery of a 9 millimetre pistol on 24th April 1993 at Khuma near Stilfontein, the said pistol having been in the lawful possession of constable Sylvester Setwati.
2. Being in illegal possession of 9 millimetre pistol during the period 24th April 1993 to 2nd June 1993 in contravention of section 2 of Act 75 1969.
3. Contravening section 36 of act 75 of 1969 by being in illegal possession of ammunition during the period mentioned.
4. The robbery of a shotgun on 30th May 1993 at Stilfontein, the said gun having been in the lawful possession of constable Samuel Khumalo.
The applicant was charged and convicted of the offences mentioned under 1, 2 and 3 above while he was acquitted on the charge relating to the shotgun. He, nevertheless, requested amnesty on all four charges. He was sentenced to 7 years imprisonment for the robbery of the pistol, to 1 year imprisonment for the possession of the pistol and to 6 months imprisonment for having the ammunition without a licence. The sentence was handed down on 27th November 1996.
The applicant testified that he was a member of ANCYL - the ANC Youth League during the relevant period. The chairperson of ANC Youth League was James Ntsholela while the youth received instructions from Jimmy Lebakha, a person approximately 24 years older than the applicant.
The applicant at the time when he committed the offences was 21 years old. He further testified that James was on the executive committee of the local ANC and that Jimmy used to report back to ANC Youth League after he had attended ANC meetings and that the latter was the person giving instructions to them. James Ntulela later became mayor of the township and the committee is of opinion that it can be assumed that he fulfilled a leadership role in the organisation at the time. The applicant testified that both Jimmy and James were aware of the robberies soon after it occurred and did not rebuke him. On the second occasion, after the shotgun was robbed, they visited the applicant and his co-perpetrator where they went into hiding in a Roman Catholic church in Potchefstroom where they took possession of the shotgun. The pistol wasn't handed to the organisation but was kept by the applicant for his own use.
The applicant described the circumstances under which the robberies took place. According to him ANC Youth League received a general instruction from Jimmy Lebakha to arm themselves so that they could protect themselves in fighting against the Police and other political rivals like the PAC and IFP. The youth then amongst themselves decided to rob whoever they knew was in possession of firearms.
During the evening of 24th April 1993 Sylvester Setwadi and other Police went to Lily's Tavern, investigating the burning of the house of another policeman. It is therefore clear that at that stage there was antagonism against the Police although Inspector Mogwera in evidence before the committee testified that he wasn't aware of political unrest in the specific area at the time.
The applicant testified that he walked up to Setwadi and grabbed the pistol which was not in the holster, but stuck into his belt, and ran away. He didn't see that Marupe who accompanied him hit the constable in the face the moment he grabbed the pistol. He didn't deny that it could have happened but said he concentrated on the gun. He said Marupe wasn't present when ANC Youth League planned robbing police to get weapons, but he later informed him. According to him Marupe was a M.K. member. He further stated that he kept the weapon because he planned to seek IFP members in the streets and to shoot them. He, however, up to the second robbery didn't do so because they didn't have enough weapons.
Near midnight on 30th May 1993 inspector Mogwera accompanied by constable Samuel Khumalo were patrolling in Khuma when they received a complaint that a woman was misbehaving at Lily's Tavern and was undressing herself. According to Mogwera he remained at the Police van while Khumalo, walked towards the tavern to investigate. Khumalo soon afterwards came back empty handed, reporting that he was robbed of his shotgun. A group of about 20 youngsters approached them and he decided not to fire shots at them but rather to retreat. Khumalo went to the Police station to get assistance while he stayed in the vicinity. He didn't witness the robbery because he stayed behind to look after the police vehicle. The applicant confirmed the robbery but said that the policeman fled when he and his fellow comrades confronted them. They left the shotgun in the Police vehicle where he and Charles found the gun and Charles took it. They then went to Potchefstroom and sheltered in the Roman Catholic church where they were later visited by James Thulela and Jimmy Lebakha to whom they handed the gun. Inspector Mogwera confirmed that the shotgun was found in possession of the civics. The pistol was found hidden in applicant's home.
The applicant's evidence on various aspects was not convincing. The committee took into consideration that he is not a well educated man and not entirely literate. The incidents also happened 7 years ago. It is however clear that the ANC and ANC Youth League, in particular, at least was aware of the robberies and in fact took possession of the shotgun. It is also a fact that there was conflict between the police and the community as evidenced by the attack on a policeman's house.
There is no evidence to contradict applicant's version that the youth were asked to arm themselves. This might have been said without intending that they should rob arms, but it is generally known that robbing policeman didn't carry the disapproval of the political organisations.
In conclusion the committee is satisfied that the offences were associated with a political objective, that the applicant disclosed the relevant facts and that he in the circumstances qualifies for amnesty.
Amnesty is GRANTED to the applicant in respect of the following offences:
1. The robbery of a 9 millimetre pistol on 24th April 1993 at Khuma near Stilfontein, the said pistol having been in the lawful possession of constable Sylvester Setwati.
2. Being in illegal possession of 9 millimetre pistol during the period 24th April 1993 to 2 June 1993 in contravention of section 2 of Act 75 1969.
3. Contravening section 36 of act 75 of 1969 by being in illegal possession of ammunition during the period mentioned.
4. The robbery of a shotgun on 30th May 1993 at Stilfontein, the said gun having been in the lawful possession of constable Samuel Khumalo.
SIGNED AT CAPE TOWN THIS THE
: DAY OF
: 2000
JUDGE S MILLER
ACTING JUDGE C DE JAGER (SC)
MR J B SIBANYONI
