DECISION
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The Applicants apply for amnesty in respect of the kidnapping of Monge Joubert Maleka on 28 August 1990 at Johannesburg.
At the time of the incident Sydney Mufamadi (the 1st Applicant) was the Assistant General Secretary of the Congress of South African Trade Unions (COSATU), Moses Mayekiso (the 2nd Applicant) was an Executive Committee member of COSATU and Jayesaleen Naidoo (the 3rd Applicant) was the General Secretary of COSATU.
COSATU is a trade union organisation which at the time in question had in excess of a million paid up members and which was organised into various national industrial unions. It was vehemently opposed to the discriminatory policies of the then government and strived and fought for democracy on the shop floor. It did not restrict its efforts to the rights of its members and affiliated unions only but challenged the government in respect of all matters concerning democratic practices and human rights and it became actively involved in the broader struggle for freedom.
A consequence of the vigorous and high profile opposition presented by COSATU was an antagonistic and often violent response from government, certain State organs and certain supporters of government. During the period 1986 to July 1990 COSATU, its affiliate unions and officials of COSATU and its affiliates suffered no less than forty six violent attacks, many of which took the form of bomb explosions at premises occupied by them.
These frequent and ongoing attacks understandably led to the leadership of COSATU being sensitive to and worried about further attacks.
The bombing of COSATU House in Johannesburg during May 1987 compelled COSATU to move its offices to the sixth floor of National Acceptance House in Rissik Street, Johannesburg.
On 28 August 1990 it was reported to the Applicants that a man was maintaining surveillance over the building from a point across the street. On satisfying themselves that the man indeed appeared to be monitoring the building, the Applicants left the buildings and went to the man who was Monge Joubert Maleka. They accosted him and found him to be in possession of a two-way radio and photographs of Geraldine Fraser who was the administrative officer of the South African Communist Party and who occupied an office in the same building as COSATU.
Mr Maleka was then taken by the Applicants to their offices. he confessed that he had been employed by the police to keep the building under surveillance and to inform them of the movements of Ms Fraser. It was decided by the Applicants to call a press conference and Mr Maleka was held against his will in the offices pending the press conference. The African National Congress was also asked to request the authorities at national level to investigate the incident and the Security Police were informed about the situation and were requested to fetch Mr Maleka.
A press conference was held and thereafter, in the absence of the Applicants, Mr Maleka was assaulted by some members of COSATU.
The Applicants were charged and convicted of kidnapping and assault in the Regional Court. On appeal the Witwatersrand Local Division of the Supreme Court set aside the conviction of assault but confirmed the kidnapping conviction. A further appeal to the Supreme Court of Appeal against the kidnapping conviction is pending the outcome of these applications for amnesty.
The applications are not opposed.
The Applicants have explained fully their actions of 28 August 1990 and we are satisfied that they have made a full disclosure of all relevant facts.
It is evident from the testimony that we have heard and from the documentation that has been placed before us that the whole incident as inextricably linked to the political struggle that was taking place at the time. There is no suggestion whatsoever that any of the Applicants acted out of personal malice or spite against Mr Maleka and we are satisfied that the kidnapping was an act committed with a political objective during the course of the conflicts of the past.
We are also satisfied that the applications comply with the requirements of the provisions of the Promotion of National Unity and Reconciliation Act No. 34 of 1995.
In the result, the applications succeed and Sydney Mufamadi, Moses Mayekiso and Jayesaleen Naidoo are GRANTED amnesty in respect of the kidnapping of Monge Joubert Maleka on 28 August 1990 at Johannesburg.
We are of the opinion that Mr Monge Joubert Maleka is a victim and this matter is referred to the Committee on Reparation and Rehabilitation for consideration.
Dated at this day of 2000.
___________________________JUDGE S MILLER
___________________________JUDGE N J MOTATA
___________________________ADV N SANDI
