DECISION
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act 34 of 1995. the applicant is seeking amnesty for the following crimes:-
1. The murder of a "white security guard at or near Orlando East, Soweto, during or about 31 July 1986; and
2. Unlawful possession of an unlicensed firearm and ammunition.
Although the matter was set down in order to hear the evidence of both the present applicant and his co-applicant, Mxolisi Ernest Thandakubona, the latter did not turn up at the hearing. No advices had been received from him to explain his position and the reason for his absence. His legal representative, Mr Maleka, had also not heard from him and in the circumstances the committee was compelled to proceed on the basis that there was only one applicant, namely Mr Mphoreng. Before the evidence was heard the Committee was advised that the next-of-kin of the deceased have since left the country and their whereabouts overseas could not be located. We now proceed to deal with his evidence.
At the relevant time he was a member of the Azanian People’s Organisation ("AZAPO"). He also served on the executive committee of the Azanian Youth Organisation ("AZANYO") and Azanian Student Movement ("AZASM"), the youth and student wings of AZAPO, respectively. He received military training inside the country from Tami Mcwera and Sam Seema, also members of AZAPO who subsequently became the commander of the applicant and other AZAPO trainees who included his co-perpetrators in the present case. The training was on the use of small arms such as pistols and revolvers; they were also trained how to disarm target; and to follow orders whenever such are given and not to question them.
The applicant testified that at the relevant time there was a violent conflict between AZAPI and United Democratic Front ("UDF") supporters. The conflict first started in the Eastern Cape and spread to Gauteng, specifically Soweto, where AZAPO members and supporters were targeted and attacked. Explaining the reason for the operation which led to the attack of the security guard, the applicant said they needed arms to protect themselves. Moreover, as part of the political ideology of AZAPO, members were taught that the private business sector was providing the National Party regime with financial support. This made them a political enemy of AZAPI and the black liberation struggle in general. At the time AZAPO was involved in struggle to overthrow the previous political regime. In this context, private security companies were seen as part of the enemy; their personnel were to be attacked and killed. Their firearms would be confiscated and used to defend AZAPO members and advance the general struggle against the regime.
On a certain day the applicant and other trained members of AZAPO, namely Ernest Thandakubona, Skhumbuzo and Thabo Mathala were given orders by Mcwera and Seema to attack members of security guard companies which were escorting commercial vehicles into the township. They were delivering food and other commodities to general dealers, No specific target was pointed out and at the time many townships in Soweto were ravaged by political violence. Commercial vehicles were being attacked. On the day of execution of the order the applicant and all the above-mentioned members of his group, with the exception of Skhumbuzo, were armed with pistols which had been provided by the aforesaid commanders.
Skumbuzo drove the getaway car and the applicant was to provide his comrades with cover. A preliminary reconnaissance had revealed that members of the security guard company normally entered the townships between 10h00 and 10h30. They would stand and watch whilst commercial vehicles were being unloaded. When the applicant and his comrades came to the scene a commercial vehicle was busy offloading and a white security guard’s hand went for his firearm. Thandakunbona there and then shot him and took his revolver. He died instantly. They all left the scene. The applicant and Thandakubona were subsequently arrested and when they were released on bail they left the country to join the Azanian National Liberation Army ("AZANLA"), the military wing of the Black Consciousness Movement ("BCM"), The applicant says Strike who presently is a member of the National Executive Committee of AZAPO made the necessary arrangements for them to go into exile.
Under cross examination by the evidence leader of the Amnesty Committee the applicant slightly changed his evidence in regard to their orders and said the main objective was to confiscate the firearm from the security guard and not to kill him. They were only to kill him if he posed a danger to their lives. As nothing turns on this aspect of his evidence we shall not take it any further. It does not necessarily detract from the apparent veracity of the applicant’s version which we accept as true.
One of the documents that were placed before the Committee was an affidavit from a national executive member of AZAPO, Lybon Tiyani Mabasa (exhibit "A"). He states that he personally knows Mcwera and Seema as AZANLA cadres who were deployed inside the country to carry out operations on its behalf. He further confirms the political membership of the applicant and Thandakubona and that they were so recruited to carry out acts on behalf of AZAPO. Although this was not viva voce evidence the averments are uncontested and we have no difficulty to accept them.
Having considered the evidence and all available information as contained in the relevant documentation before the Committee, we are satisfied that the applicant has complied with the requirements of the Act. We accept that his acts were committed with a political objective as required by the Act. He further appears to have given a full disclosure of the relevant facts. Amnesty is therefore GRANTED for both offences and any delict flowing from the incident.
SINGED on the 15 day of November 2000
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ACTING JUDGE D POTGIETER SC
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N J MOTATA (AJ)
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ADV N SANDI
