DECISION
The applicant was a former member of Umkhonto WeSizwe who later joined the Security Forces and became an Askari.
He applied for amnesty in respect of eight incidents. All the incidents have been heard by different panels except the two incidents this panel will be dealing with in this application. The applicant's attorney handed alist referring to the different incidents to the committee. The following incidents have been heard but decisions are still pending:
1. The kidnapping of Japie Maponya
2. The Witbank Petrol Bomb attack
3. The Nelspruit Petrol Bomb attack
4. The detention of Pat Mahlangu
5. The kidnapping of Bomber
6. A house raid in Mabopane and kidnapping.
The applicant is presently applying for amnesty in respect of the following two incidents:
1. The petrol bombing of the house of the late Mr Griffith Mxenge.
2. The petrol bombing of the house of a Trade Unionist in Umlazi.
Both incidents occurred during the same night around about 1985/1986. The applicant could not give an exact date.
The applicant testified that he was abducted by Security Policemen Deetlefts and Pienaar from Swaziland on 14 April 1984. During the abduction Deetlefts suggested that they should kill the applicant and dump his body in Swaziland but Pienaar insisted that he should be taken to Police Headquarters in Pretoria in accordance with their instructions. He was detained for approximately six months. The message he got was crystal clear to either "co-operate with the Security Police or simply disappear". He understood and knew this to mean that he would be killed unless he was willing to become an Askari and work against his former colleagues. At that stage the ANC were infiltrated by police agents and anybody returning to the ANC after being in Police detention was suspected of being a Police Agent and ran the risk of being detained in an ANC camp and sometimes even executed as a traitor. On being asked why he did not rejoin the ANC later after his release and when he had the opportunity to escape he referred to according to applicant "they beat the lights out of him and sent him back to the RSA to face the Security Police again". According to the applicant this convinced him that he had no choice: either co-operate with the police and stay alive or be killed by them or your own comrades.
After becoming an Askari he was sent on different missions under the command of a Security Police Officer. While being in Durban he was ordered by Major Andy Taylor to accompany Nicholas Dube, Mshengu Mavuso, Mike Lembede, Spyker Myeza and Mgabazi to petrol bomb two houses.
The reason given by Taylor for the operations were that the house of the late Mr Mxenge was used for secret meetings by members of the liberation forces and that the other house belonged to a trade unionist who himself played an active role in opposing the government.
He further testified that they threw petrol bombs which were given to them by Taylor at the Mxenge house and he saw that at least one of them exploded and must have caused damage to the house. He did not see any lights n the house and was not aware of anybody sustaining injuries. They immediately left the scene and drove to the house of the trade unionist some kilometres away. There they repeated the same operation. He heard somebody screaming and one of his colleagues fired a few shots in the direction of the house before they ran away and drove off.
During cross examination by the legal representative of the victims the applicant stated that he joined the police force out of necessity but that he did not share or support their political objectives. It was argued that because he still believed in the policy of the ANC and only participated because according to him he had no choice, he should not be entitled to amnesty.
The Committee had to decide whether his case falls within the ambit of the act.
His application complied with the formal requirements of the Act Section 20 (1) a of Act 34 of 1995.
The act or offence itself was an act associated with the political objective of destroying or damaging a meeting place of members of the liberation forces. It would also serve to send a message to them.
The Committee came to this conclusion because the act met the criteria laid down in Section 20 (3) (b) to (f). The criterium laid down in Section 20 (3) a was not met, namely the "motive of the person who committed the act". Whether an act was an act associated with a political objective must be decided with reference to all the criteria. The criteria are not prerequisites. It is not required by the act that each of the criteria to which reference should be had should be looked at in isolation. It is not required that the applicant's motive should be associated with a political objective - the requirement is that the act should be associated with a political objective. All the members of the police who acted under orders were not members or supporters of the National Party. Some might have been members of the opposition parties and the intention of the legislature clearly was not to exclude them from the privileges granted by the act. Once it is objectively concluded that the act was associated with a political objective after considering all the criteria in Section 20 (3) the committee would be obliged to grant amnesty to any applicant who has locus stand: in accordance with Section 20 (2) to apply for amnesty and if the requirements of Section 20 (1) (c) has been met namely a full disclosure of all relevant facts.
The applicant falls within the ambit of Sections 20 (2) (b) and (f). He believed thathe had no choice but to obey the orders. It fell within the course and scope of his duties and within the scope of his express or implied authority. In this respect the Committee refers to the decision Vlok and others AM4399/96 where the Committee dealt with the meaning of the phrase "in the course and scope of his or her duties and within the scope ofhis or her express or implied authority" and referred to relevant decisions of the Appellate Division. The Committee is satisfied that the applicant had reasonable grounds to believe that being a member of the Security Police (albeit against his will) he had to act on the orders of his superiors and he did so.
Amnesty is therefore GRANTED to the applicant in respect of the following offences and delicts:
1. Arson and the malicious damage to the property of Griffith Mxenge during 1985/1986 in Durban caused by a petrol bombs being thrown at the house.
2. Arson and the malicious damage to the house of an unknown trade unionist during the same night as the previous incident and also caused by the throwing of petrol bombs at the house.
3. Any offence or delict directly linked to the above mentioned offences and covered by the evidence given in connection therewith.
SIGNED AT CAPE TOWN ON THIS THE
: DAY OF
: 2000.
: JUDGE A. WILSON
: C. DE JAGER (AJ)
: ADV. S. SIGODI
