DECISION
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act"). During 1989 the Applicants and Lollie Kwakwarie were convicted in the South Eastern Cape Local Division of the Supreme Court in case no. CC18/88 of the following offences which were committed on 6 February 1987 at or near Leeukloof Farm in the district of Cradock, Eastern Cape:
1. housebreaking with intent to rob and murder, with aggravating circumstances;
2. two counts of murder in respect of Mattheus Gideon Palvie and his wife Janetta Johanna Palvie;
3. robbery;
4. malicious damage to property; and
5. unlawful possession of firearms and ammunition.
The Trial Court imposed the death penalty on the Applicants, which sentence was subsequently commuted to life imprisonment.
The Applicants are seeking amnesty in respect of their said convictions. Although Lollie Kwakwarie had filed an application or amnesty he decided not to proceed with the application. He also declined to testify at the hearing in spite of the fact that he was implicated by Applicants. Both Applicants testified and no other witnesses were called.
The salient features of the undisputed versions of Applicants are as follows. They were resident in Cradock and were members of the Cradock Youth Association ("Cradoya") at the time of the incident. Their political affiliation is confirmed in letters addressed to the Committee by the Cradock Advice Office and signed by the chairperson of Cradoya and the treasurer of the Cradock Residents Association ("Cradora"). Cradoya was affiliated to the United Democratic Front ("UDF") which was an alliance of various political and civic movements in South Africa which supported the African National Congress ("ANC"). In response to a call by the ANC, Cradoya and other political organisations in Cradock formed self-defence units ("SDU") to defend the community against raids and attacks by the security forces. During these raids people in the township especially activists, were assaulted, harassed, arrested or even killed. Farmers in the area would often assist the security forces in these raids. Many of these farmers were either police reservists, former police officers or members of commandos.
The SDU and political organisations took a decision to obtain firearms which was the only effective means of retaliation or defence against these attacks and raids by the security forces who were themselves armed. It is a well-known fact that the Cradock area was embroiled in intense political conflict at the time.
On 5 February 1987 Applicants received an instruction from the commander of their SDU, Xolile Ben Sithungu, to go to Leeukloof Farm and attempt to obtain firearms there. Information was received from someone who had previously resided on the farm, that the farmer was a police reservist and that there was a cache of arms on the farm.
Later that day Applicants, Lollie and the son of the foreman on the farm, got a lift to the farm. Upon their arrival there they attempted to burgle the farm house but they were scared off by the barking of the dogs. They spent the night at the foreman’s house on the pretence that they came to participate in some celebration planned by the foreman’s son for the next day.
The following day, after the farmer, Mr Palvie, and his wife had left for Cradock which was approximately 20km from the farm, second Applicant and Lollie broke into the farm house and searched for weapons. They found one rifle which had no ammunition. They also found a police captain’s buttons in one of the trunks which they broke open. Second Applicant took the buttons to show to their commander as confirmation that the farmer was involved with the police. They left the house after about 2 or 3 hours leaving the rifle behind. The foreman’s son told them that the owner of the farm had taken some of the firearms to his house in Cradock, but that the farmer had two firearms. Applicants decided to wait for the farmer to return with the firearms which they intended seizing together with the farmer’s vehicle to transport them back to Cradock.
Applicants participated in the celebration at the foreman’s house. When they saw the farmer returning they quickly moved to the farm house. First Applicant and Lollie entered the farm house and Second Applicant stood guard. When the farmer and his wife entered the house they were attacked. Both of them died of their injuries. Second Applicant found a small firearm and the car keys in the handbag of the farmer’s wife. He fetched the farmer’s car and first Applicant loaded 2 suitcases full of goods into the car. The suitcases were packed by Lollie when they entered the farm house earlier the day. Lollie had the rifle which they found earlier and a wall clock which he loaded into the car. They drove to Cradock where they disposed of some of the goods and destroyed the vehicle. They were arrested soon after the incident.
Having carefully considered the applications and the evidence I am satisfied that Applicants have made a full disclosure of all material facts. They have given a clear and comprehensive account of the circumstances which gave rise to their visit to the farm as well as the incident on the farm and the subsequent events. Their evidence has not been gainsaid in any way and it accords with the objective facts established at their trial.
It is, moreover, clear that the Applicants were acting pursuant to orders from the commander of their SDU. Their actions in obtaining firearms were clearly in furtherance of the political struggle which the SDU’s and the Cradock community were engaged in. It is common cause that the Cradock area was engulfed in intense political conflict at the time. The objective in arming the SDU was clearly to prevent the security forces from inhibiting the political activity of the ANC aligned political organisations in Cradock.
Applicants were acting in their capacity as SDU members during the incident on the farm. Moreover, the farmer was seen as a legitimate target for attack because of his specific connection to the police and the role played by farmers in the raids by the security forces on the township in Cradock.
It should also be pointed out that although the order was to obtain firearms, the possibility was not excluded that the members of Applicants’ group might appropriate other items as well. In this regard the order of the commander was that the group should not argue among themselves but should bring any further items back to the commander to deal with.
It would accordingly be unrealistic and unfair to split the incident up into different components and separate the theft of the other items from the theft of the firearms. The intention was to dispossess the farmer of items which could benefit the struggle which Applicants were engaged in. Dispossessing the farmer of the further items is therefore not so far removed from the overall objective of the Applicants as to disqualify this action for the purposes of granting amnesty. All of the actions of Applicants during the incident formed an integral part of the execution of the order from their commander. This includes the killing of Mrs Palvie, who was herself armed.
Since formulating this decision, the differing decision of the majority members of the panel had been brought to my attention. Suffice it to say that I have considerable difficulty in grasping the rationale of that decision which in any event in no way persuades me to alter any aspect of this decision.
I am accordingly satisfied that Applicants’ actions were associated with a political objective.
In the circumstances, I would GRANT amnesty to Applicants in respect of the offences, listed above, which they were convicted of.
In my opinion the next-of-kin of Mattheus Gideon Palvie and Janetta Johanna Palvie are victims in relation to this incident. I would accordingly refer the matter for consideration in terms of Section 26 of the Act.
DATED AT CAPE TOWN THIS THE 15TH DAY OF AUGUST 2000.
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DENZIL POTGIETER, A.J.
