DECISION
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Amos Tanki Tshabalala (the 1st Applicant) and Mdubeki Johannes Ntantiso (the 2nd Applicant) apply for amnesty in respect of the murder of Barend Constant van Wyk (the Deceased), robbery and the unlawful possession of a firearm and ammunition, which offences were committed on 12th October 1993 at or near Sebokeng. In addition, the 1st Applicant applies for amnesty in respect of the unlawful possession of firearms and ammunition at or near Ennerdale during 1994.
Both applicants were, at relevant times, members of the Pan Africanist Congress (the PAC). The had both received military training in Transkei and were members of the Task Force. They were both members of a unit which was based in Sebokeng. The 2nd Applicant was the commander of the unit.
The evidence of the applicants may be briefly summarised as follows:
On 12th October 1993, the applicants, after having attended a Task Force meeting at head office, returned to the PAC office in Zone 11, Sebokeng. It was approximately midday. There were six of them in the office, all members of the Task Force unit. They saw two white men, who were dressed in khaki, alight from a vehicle in the close vicinity of the office. Shortly thereafter they were joined by another white man, the Deceased, who arrived in a Mercedes Benz vehicle which he parked close to the office.
They were shocked to see white men in the township and the 2nd Applicant thought that they were coming to attack their office. Shortly before, government Security Forces had attacked the house of a PAC member in Umtata and had killed a number of children. He, as commander of the unit, ordered that the white men should be shot and killed. The two white men who had arrived first left shortly after the arrival of the Deceased. The Deceased remained at the football field across the road where a drilling machine was being operated.
After some time the Deceased returned to his vehicle. A group of people gathered in the vicinity of the vehicle. The keys to the vehicle were locked inside and the right back quarter window was broken in order to gain access into the vehicle. The Deceased started the vehicle, but then alighted from it again, leaving the engine running. It was at this state, when the Deceased was standing next to the vehicle, that the 1st Applicant shot the Deceased with a pump action shotgun.
The Deceased fell to the ground, mortally wounded. The 2nd Applicant jumped into the vehicle and drove off. The 1st Applicant fled the scene of foot.
The 2nd Applicant drove the vehicle to Zone 12 in Sebokeng. He stole a wallet and a wristwatch which were in the vehicle. The wallet contained no money. He stated that it was his intention to use the vehicle to drive to Transkei to attend the funeral of those slain in the aforementioned attack on the house in Umtata. It was also his intention to hand the vehicle and watch over to his commander who was in Transkei. He did not go to Transkei as he was arrested the following day.
The 1st Applicant was, during the election campaign preceding the general elections which took place on 27th April 1999, acting as a body guard for the President of Azanyu. He was in a motor vehicle which was stopped at a road block between Stratford and Ennerdale. The 1st Applicant was found to be in possession of an R1 rifle, a 9 mm pistol and a .38 special revolver together with ammunition. He was arrested and charged in respect thereof.
Jabulani Khumalo, a member of the National Executive Committee of the PAC, also testified. He confirmed that the applicants were members of the PAC and its Task Force and stated that 1st Applicant operated under the code name Solly and that 2nd Applicant operated under the code name David. He stated that the actions of the applicants on 12th october 1992 were in line with PAC policy explaining that in 1993 was the Year of the Great Storm and that tension rose considerably after the security force attack on the house in Umtata and that at that time any white person was regarded as a legitimate target.
Hermanus Steyn van Wyk, the son of the Deceased, also testified. He disputed the evidence that the keys to the Deceased's vehicle had been locked in the vehicle. he saw the vehicle after it had been recovered by the Police and stated that none of its windows were broken. He himself installed the immobiliser in the vehicle and one had to have special knowledge to activate it in order to start the vehicle. He expressed the view that the actions of the applicants on the day in question were not political but were purely criminal.
We accept the evidence that the applicants were members of the PAC and were members of a Task Force unit and that, as such, they were ardent supporters of the movement and its policies.
While it is clear from the evidence that the Deceased did not in any way constitute a threat to the applicants and that he was present in Sebokeng that day to extract soil samples from the football field where a stadium was to be built, the initial impression gained by the 2nd Applicant that the presence of the Deceased and the two other white men in the vicinity of the office constituted a threat is reasonably possibly true. This is especially so when one takes into account the tensions that prevailed amongst PAC supporters following the attack carried out by members of the Security Forces in Umtata.
The 2nd Applicant did explain in his testimony that the reason for attacking the Deceased was because the Deceased was a legitimate target in terms of the policy of his movement that prevailed during the Year of the Great Storm - the attack on the Deceased was not solely due to the misplaced belief that he may attack their office.
The 2nd Applicant testified that he did not take the Deceased's vehicle for personal gain. It was, he stated, his intention to use the vehicle to travel to Transkei to attend the funeral of the victims of the Security Force's attack and then to hand the vehicle, together with the wristwatch, over to his commander, one Makapula, who was in Transkei. This evidence, also, is in our view, reasonably possibly true.
The applicants were satisfactory witnesses and we, after careful consideration of all of the evidence, accept their version and are satisfied that they have made full disclosure.
We are, on their version, satisfied that the offences committed by themselves were acts committed with a political objective as envisaged by the provision of Section 20 of the Promotion of National Unity and Reconciliation Act, No.34 of 1995.
In the circumstances, their applications for amnesty succeed and:
1. Amos Tanki Tshabalala is GRANTED AMNESTY in respect of
1.1 the murder of Barend Constant van Silk committed on 12th October 1993 at Sebokeng;
1.2 the robbery of a motor vehicle belonging to Barend Constant van Wyk committed on 12th October 1993 at Sebokeng;
1.3 the unlawful possession of a firearm and ammunition on or about 12 October 1993 at Sebokeng; and
1.4 the unlawful possession of three firearms and ammunition during 1994 at or near Ennerdale.
2. Mdubeki Johannes Ntantiso is GRANTED AMNESTY in respect of:
2.1 the murder of Barend Constant van Wyk on 12th October 1993;
2.2 the robbery of a vehicle belonging to Barend Constant van Wyk on 12th October 1993 at Sebokeng; and
2.3 the unlawful possession of a firearm and ammunition on or about 12th October 1993 at Sebokeng.
We are of the opinion that Hermanus Steyn van Wyk and other members of the Deceased's immediate family are victims and this matter is referred to the Committee on Reparation and Rehabilitation for its consideration.
DATED AT THIS DAY OF 2000.
____________________________JUDGE S M MILLER
____________________________JUDGE N J MOTATA
____________________________ADV N SANDI
