DECISION
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These are applications for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act"). The matter relates mainly to the killing of a member of the South African Police, Matjebe Samuel Satekge ("the deceased") on or about 5 February 1993 at or near Rockville in the district of Johannesburg. All of the Applicants were convicted and sentenced to long periods of imprisonment pursuant to the incident.
The matter also concerns some other incidents which are dealt with more fully later in this decision.
It is necessary at the outset to deal with the position of Thabiso Tekane ("Thabiso") who was one of the perpetrators of the killing in question. He was convicted and sentenced pursuant to the incident during March 1998 some time after the trial of his co-applicant, Marvin Mogatle Maesela ("Marvin"). He stood trial together with his brother and co-applicant Nathaniel Eric Mashene Tekane ("Nathaniel").
At the commencement of the proceedings we only had the amnesty applications of Marvin and Nathaniel physically before us. Mr Shai, who represented the applicants, indicated to us at the time that he had also received instructions to appear on behalf of Thabiso who is a further applicant in respect of the incident. He indicated that he initially only received instructions to appear on behalf of Marvin, but when he received the papers in the matter from the Amnesty Committee's offices, the application of Nathaniel was also included. When he visited Marvin and Nathaniel in prison, they indicated that Thabiso also applied for amnesty respect of the incident. He then received instructions to also represent Thabiso. All efforts to locate the application of Thabiso proved fruitless. The leader of evidence, Ms Mtanga, placed on record that she only became aware of the situation concerning Thabiso at the hearing. In the limited time at her disposal, she made contact with the Amnesty Committee's offices in Cape Town from the venue of the hearing in Pretoria. She was informed that the database of amnesty applications does not contain Thabiso's name which is taken to indicate that his amnesty application was never received at the offices in Cape Town. We instructed Ms Mtanga to ensure that a diligent search be undertaken for Thabiso's application at the offices while we proceed with the applications of Marvin and Nathaniel.
At the conclusion of these applications, no further progress was made on the search in respect of Thabiso's application. We allowed Mr Shai to proceed with the evidence of Thabiso pending the finalisation of the issue concerning his amnesty application. At the conclusion of Thabiso's testimony, the panel elicited the necessary evidence from him concerning his amnesty application.
This evidence is briefly that he was at Grootvlei Prison awaiting trial when he obtained an amnesty application form from the prison which he completed with the assistance of Thabiso Makwala, a fellow inmate and member of the Azanian Peoples Liberation Army ("APLA") who has since died. He was at first reluctant to submit an amnesty application, but was eventually persuaded to do so by his comrades. He recalls being escorted to the prison administration offices by a warder, Mr Gholotsa, to hand in the completed form which was handed to another warder only known to him as Sam. The understanding was that the prison would submit the form to the Amnesty Committee in Cape Town. This was during March 1997. Thabiso recalls that he missed the first deadline for the submission of amnesty applications and decided to submit his application when the deadline was extended to 30 September 1997. He was transferred from Grootvlei Prison soon after handing in his amnesty application. During the course of his trial, the question of his and Nathaniel's amnesty applications arose. His legal representative endeavoured to ascertain the situation concerning the applications which would clearly have been relevant for the purposes of the trial. Only Nathaniel's application could be located through the assistance of the African National Congress TRC Desk. Efforts were made by Thabiso and his family to clarify the position since the matter arose at the beginning of 1998. The Amnesty Committee offices were contacted without any success. This continued right up to the commencement of the hearing. At the conclusion of the proceedings that situation concerning the whereabouts of the relevant amnesty application had not changed.
Mr Shai requested us to proceed and deal with the matter on the basis of Thabiso's evidence that he had submitted a proper application for amnesty. We find no reason not to accept the relevant evidence of Thabiso which is clear and convincing in regard to the completion and submission of his application. We cannot find any blameworthy conduct on his part in regard to the failure to locate the whereabouts of the application.
In view of the fact that Thabiso and the other applicants are in custody in respect of the incident forming the subject matter of the application and a considerable period of time has already elapsed, it would be in the interest of justice for the matter to be finalised on the basis of the evidence (which we accept) that Thabiso has complied with the requirements of Section 18(1) of the Act. In the meantime the necessary administrative steps have been taken to register the application of Thabiso. We accordingly proceed to deal with the merits of the matter on that basis.
All of the Applicants were members or supporters of the African National Congress ("ANC") at all material times. They were also members of a Self-Defence Unit ("SDU") established by the ANC which operated in the area of Rockville under the command of Thabiso at the time of the incident. One of the orders conveyed to the SDU by members of the ANC leadership was to disarm members of the police. The task was left to the unit to identify appropriate targets. It was foreseen that these attacks would be resisted by members of the police and that the SDU members should themselves be armed in order to be effective.
During January 1993 and in execution of this order, the deceased was identified as a target to be disarmed. Members of the SDU reconnoitred his movements and it was eventually decided to attack him at home in the early hours of the morning as he leaves for work in the police truck which he usually drives.
On the morning of the incident, members of the SDU, including the Applicants, proceeded to the house of the deceased. They were all armed, some with firearms which included two AK-47 assault rifles and one 9mm pistol. Thabiso had to lead the attack on the deceased. On their way they heard the sound of an approaching vehicle which they thought could possibly belong to the police. The group took cover and noticed that it was a bread delivery truck which stopped at a nearby shop. The occupants of the truck noticed Nathaniel where he was hiding and in all likelihood also saw Nathaniel trying to conceal the AK-47 rifle in his possession. Nathaniel fired some shots in order to scare them off and stop them from coming to where he was hiding. They fled and Nathaniel immediately joined up wit the other SDU members and reported to them what had happened. Nathaniel was clearly preventing the occupants of the truck from interfering with the group of attackers who were on their way to the house of the deceased. Applicants were eventually charged with assault and attempted murder of the four occupants of the truck.
The group concealed themselves in the vicinity of the deceased's home and waited for him to leave the house. After a while the deceased got into the truck and drove it out of the yard. As he returned to the truck after closing the gate, Thabiso swung into action and confronted the deceased who was already inside the vehicle. The deceased made a sudden movement which Thabiso interpreted as reaching for a gun. Thabiso opened fire as he was taking cover. The truck drove away as Thabiso summoned the other SDU members to assist. Both Marvin and Nathaniel fired at the truck which came to a halt some distance away. They moved towards the stationary truck but had to retreat when they saw the police arriving on the scene. They did not manage to take the firearm of the deceased.
Having carefully considered the matter, we are satisfied that the Applicants have made a full disclosure of all relevant facts. The attack was launched in execution of an order from their political superiors in the ANC to disarm members of the police. The circumstances of the matter clearly indicate that Applicants' conduct was associated with a political objective. Although Applicants did not necessarily desire the death of the deceased, the eventual killing formed an integral part of the attempt at disarming the deceased. In the same vein, the firing of shots at the bread delivery truck formed an integral part of the execution of the plan to disarm the deceased since it was primarily motivated by a desire to prevent disruption of the plan while the group was still on its way to the scene of the attack. The fact that this specific turn of events was not expressly catered for in the planning, does not detract from the logical fact that it would have been within their contemplation that any possible obstacle to the execution of the plan would have to be eliminated. It is clear from the evidence of Nathaniel that his main aim in firing at the occupants of the truck was to scare them off and prevent them from interfering with the execution of the plan to attack the deceased.
We are accordingly satisfied that the applications comply with all of the requirements of the Act.
Nathaniel also applied for amnesty in respect of the theft of a motor vehicle during or about the period 1976 - 1977. He was part of a group intending to leave South African to join the ANC in Lesotho. They were transported to Bloemfontein but had no transport to take them further. Pursuant to a decision taken by the group, Nathaniel volunteered to steal a motor vehicle with the assistance of an employee of Oranje Toyota, Bloemfontein. The vehicle would be used to transport the group to Lesotho. Nathaniel was apprehended after having stolen the vehicle and was convicted and sentenced to corporal punishment in respect of the theft. It is clear that he was not acting for personal gain and that the theft of the vehicle was directly associated with the political objective of joining the ANC to participate in the liberation struggle. Nathaniel did eventually join the ANC in Lesotho where he received military training and also joined the ANC's military wing, uMkhonto weSizwe.
In our view, the incident constitutes an act associated with a political objective as envisaged in the Act and Nathaniel has made a full disclosure of all relevant facts in regard thereto.
In the circumstances, amnesty is hereby GRANTED as follows:
1. to all of the Applicants in respect of the following offences committed on or about 5 February 1993 at or near Rockville in the district of Johannesburg
1.1 assault and/or attempt to kill Mthimkulu Twala, Frank Sithole, Phanuel Tekanan and Bheki Mabuya;
1.2 murder of Matjebe Samuel Satekge;
1.3 attempted robbery of Matjebe Samuel Satekge;
1.4 unlawful possession of two AK-47 assault rifles;
1.5 unlawful possession of ammunition intended to be fired from a machine gun;
1.6 unlawful possession of a 9mm pistol and ammunition.
2. to Nathaniel Eric Mashene Tekane in respect of the theft of a motor vehicle during or about the period 1976 - 1977 at or near Bloemfontein.
In our opinion, the next-of-kin of Matjebe Samuel Satekge are victims in relation to the murder and they are accordingly referred for consideration in terms of Section 22 of the Act.
Dated at this day of 2000
____________________________DENZIL POTGIETER, A.J.
____________________________CHRIS DE JAGER, A.J.
____________________________ADV LEAH GCABASHE
